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The Proposed Charter for Peace and National Reconciliation of August 15, 2005

Insufficient safeguards against impunity for grave crimes

As a framework for future legislation and policies, the Charter for Peace and National Reconciliation follows in the path of the Civil Harmony Law. It proposes to amnesty or reduce punishments for militants who surrender, without holding to account many of those responsible for deliberate killings and other serious human rights abuses. While the Charter does not raise the prospect of an amnesty of any kind for state agents, it contains no language to suggest that their de facto impunity, which contributed greatly to Algeria’s human rights crisis, will be disturbed.

The Charter would cancel all legal proceedings against militants who voluntarily surrendered since January 13, 2000, the deadline for surrender under the Civil Harmony Law, without mentioning any crimes that would warrant their exclusion. (In his speech of August 14, however, President Bouteflika said that the amnesty offer to those who have already surrendered would exclude persons implicated in “collective massacres, rape, and bomb attacks on public places.” The phrase “collective massacres” is not defined in his speech or in the Charter.) Proceedings would also be canceled against all militants who henceforth cease their armed activities and surrender their weapons — provided that they are not implicated in “collective massacres, rape, or bomb attacks on public places.” The same offer and exceptions apply to militants who are presently being sought by the authorities and who turn themselves in, and to persons who have been convicted in absentia.  Meanwhile, those who have been convicted and imprisoned as militants would be pardoned, provided that they are not implicated in “collective massacres, rape, or bomb attacks on public places.” Suspected militants who are in prison or being sought by authorities, and who do not meet this condition, would be eligible instead for a commutation or a reduction of their sentence.

Persons implicated in providing support for terrorism (as opposed to those who committed the deeds) would benefit from a cancellation of legal proceedings if they reported their activities to the appropriate authorities.¹³  Persons already convicted of providing support for terrorism would be pardoned.

The principle that some crimes are too serious to be amnestied is a good one.  But the Charter’s list of excludable crimes is wholly inadequate. It includes only “collective massacres, rape, and bomb attacks on public places.” (The Charter refers to those “implicated” in these crimes without specifying whether this means the actual perpetrators only, or also those who ordered, commanded, or acquiesced in these acts.)  This list of three excludable offenses represents a retreat from the list of excludable offenses under the Civil Harmony Law, which included the commission of, or participation in, “crimes that led to the death of a person or a permanent injury” (Article 3).  Thus, the perpetrators of one or more individual murders, or acts of torture causing permanent injury, would be ineligible for amnesty under the 1999 law but apparently eligible under the Charter.

Extrajudicial executions constitute grave crimes that, along with acts of torture and enforced disappearance, should not be eligible for an amnesty, according to international standards.  Amnesties, pardons and similar national measures that lead to impunity for serious human rights abuses contravene fundamental principles of international law. Authoritative United Nations and regional human rights bodies, as well as international criminal tribunals, have established that there should be no amnesties or similar measures that afford impunity for serious human rights abuses.

The U.N.’s Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity states, “Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds: (a) The perpetrators of serious crimes under international law may not benefit from such measures until such time as the State has met the obligation[ ]” to “undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished.”  The Updated Principles define the phrase "serious crimes under international law" to include, among others, genocide, crimes against humanity, and “other violations of internationally protected human rights that are crimes under international law and/or which international law requires States to penalize, such as torture, enforced disappearance, extrajudicial execution, and slavery.”¹⁴

The Charter does not specify what mechanism will ensure that perpetrators of “collective massacres,” rape, and bombing attacks on public places are excluded from the amnesty.  Presumably an ancillary text will define this once the Charter is approved, just as the government decreed the creation of Probation Committees, following adoption of the Civil Harmony Law, to review individual applications for amnesty. 

The record of these committees inspires little confidence that in the future, perpetrators of excludable offenses will be vetted and declared ineligible for amnesty.  Any future mechanism of vetting amnesty applicants should be transparent both in its deliberations and in the decisions it takes.  It should be open to receiving information from members of the public. In addition, prior to the September 29 referendum on the Charter, and before any further review of amnesty applications, authorities should release a detailed account of the work of the Probation Committees.

Proposals to pardon or reduce the sentences of convicted prisoners must respect the principle that those convicted of serious human rights abuses should receive punishments that are proportional to the crimes they committed.  The Charter provides no such guarantees.  It proposes to pardon persons who were convicted for “supporting terrorism” or for committing acts of violence other than “collective massacres, rape, and bomb attacks on public places.”  Thus a militant convicted of one murder, or even a series of individual murders, would be released from prison regardless of how little time he has served.  To free after six months in prison a militant who committed deliberate murders would contravene basic standards of justice insofar as the time he served is not proportional to the offenses he committed.

Prisoners ineligible for release under the terms of the Charter — in other words, those convicted for their role in “collective massacres,” rape and bomb attacks in public places — would be eligible for a reduction of their sentences.  Again, such a measure would be consistent with international norms so long as the reduced sentences were still proportional to the gravity of the offenses committed.

Of course, the principle that perpetrators of serious human rights abuses should receive a punishment commensurate with their crimes applies only to persons who have been convicted in proceedings that were fair, and that provided them a meaningful opportunity to appeal the verdict.  As noted above, many of those imprisoned in Algeria since 1992 for terrorism-related offenses did not benefit from a fair trial.  They were convicted on the basis of coerced confessions and proceedings in which their due process rights were not respected.  Persons who were convicted in an unfair trial for committing serious human rights abuses should be granted new and equitable trials or if a diligent investigation fails to turn up evidence that would justify charging them anew they should be released.

Disregard for rights and aspirations of families of the “disappeared”

The Charter lists a series of measures designed to “help bring about a definitive solution to the issue of the disappeared.” They constitute President Bouteflika’s first policy initiative on the “disappeared” since he received the final report and recommendations of his Ad Hoc Commission on the Disappeared at the end of March.¹⁵ 

The Charter proposes some welcome steps but utterly ignores the state’s obligation under international law to investigate the thousands of “disappearances” carried out by its agents and the obligation to bring the perpetrators to justice, as well as the right of families to know the truth about what happened to their relatives.

As noted above, the Charter proposes an amnesty only for members of armed groups.  It proposes no parallel measure to forgive “disappearances” and other crimes committed by state agents and their allies in civilian “self-defense” groups.  Nevertheless, the near-total absence of any recognition in the Charter that state officials and agents were responsible for massive and systematic abuses only reinforces the impunity they already enjoyed in practice for abuses committed during the conflict.  The Charter’s only allusion to abuses committed by state agents, located in the section on “disappearances,” is intended to exonerate state institutions and blame rogue individuals:

The sovereign Algerian people reject any allegation intended to impute to the State a policy of “disappearances.”  The people refuse to allow the reprehensible actions of state agents, who were punished by the justice system whenever those actions were proven, to serve as a pretext for discrediting the whole of the security forces who accomplished their duties, with the support of the citizenry and in the service of the homeland.

The Charter thus endorses the view expressed by Farouk Ksentini, president of the Ad Hoc Commission on the Disappeared, who insists that state agents acting on their own, but not state institutions, were responsible for “disappearances.”  The state was “responsible but not guilty,” according to his formulation, and responsible only in the sense that it had failed in its duty to protect Algerian citizens.¹⁶

The U.N. Declaration onthe Protection of all Persons from Enforced Disappearances takes a more affirmative view of state responsibility when “disappearances” are carried out by its agents.  Article 5 states, “In addition to such criminal penalties as are applicable, enforced disappearances render their perpetrators and the State or State authorities which organize, acquiesce in or tolerate such disappearances liable under civil law, without prejudice to the international responsibility of the State concerned in accordance with the principles of international law.” ¹⁷ [Emphasis added.]

Both Ksentini and the draft Charter blame rogue agents while exonerating state institutions even though no official inquiry has ever been conducted to determine the facts.  The Ad Hoc Commission on the Disappeared was in no sense a commission of investigation, as its bylaws and the statements of President Bouteflika and the commission’s president made clear.¹⁸  Its mandate was not to investigate but to serve as an “interface” between families of the “disappeared” and the administration.  Algeria’s courts, meanwhile, have contributed nothing to exposing the facts about disappearances, even though hundreds of families filed complaints concerning the abductions of relatives, some of them providing the names of eyewitnesses and information about the suspected perpetrators.

In the view of Human Rights Watch, “disappearances,” when practiced on the scale that they were carried out in Algeria during the mid-1990s, constitute a crime against humanity.  (The wide-scale practice of abducting and killing civilians carried out by armed groups also constitutes, in our view, a crime against humanity.)  The Ad Hoc Commission on the Disappeared reported having handled 6,146 cases attributable to state agents in provinces across the country, almost all of them conducted between 1994 and 1997.  The actual number is probably higher. 

Moreover, a growing body of international law views “a disappearance” as a “continuing offense,” so long as the whereabouts of the missing person have not been clarified.¹⁹

Despite the state’s vague acknowledgment of responsibility, the perpetrators of these “disappearances” have escaped punishment, and what they did with the more than 6,000 persons they abducted remains secret a decade after the fact.  This strongly points to a policy of “disappearances” in which high-level officials participated or acquiesced, and for which they should be held accountable.  The alternative hypothesis presented in the Charter — blaming more than 6,000 “disappearances” on agents acting on their own — is simply not credible absent an impartial and transparent investigation into what took place.

The Charter also makes the dubious assertion that state agents who committed abuses “were punished by the justice system whenever those actions were proven.” While there have been isolated cases of policemen brought to trial for human rights abuses, the rule has been impunity for gross violations.  This has been particularly true for agents of the Department of Intelligence and Security (Département du renseignement et de la sécurité, formerly la Sécurité Militaire), the powerful agency whose agents are believed responsible for a huge share of “disappearances.”  To the best of our knowledge, no state agent has ever been held responsible for participating in a “disappearance,”²⁰ although it appears that in some cases, a few members of army-backed civilian defense groups have been brought to court for their role in abductions.²¹ The fact that state agents have thus far escaped accountability for “disappearances” is further evidence implicating the institutions themselves in these crimes.  It too is a matter that should be part of an official investigation into “disappearances.”

The Charter’s declaration that state institutions bear no responsibility for the commission of disappearances is an attempt to preempt further inquiry into the matter.  It may also prejudice the rights of families by making it harder for them to sue those institutions in domestic courts for civil damages resulting from the abduction of their relatives.

On the positive side, the Charter states, “‘Disappeared’ persons are to be considered victims of the national tragedy and their beneficiaries are entitled to compensation.”²²  The Charter mandates the president to seek, “on behalf of the nation, the pardon of all victims of the national tragedy.” It commits the state to “take all appropriate measures to enable the beneficiaries of disappeared persons to cope with this terrible ordeal in dignity.”

International norms affirm the right to reparation. The U.N. Declaration on the Protection of all Persons from Enforced Disappearance 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.”²³

Many families of the “disappeared” need assistance desperately. In addition to the psychological trauma and personal loss, the “disappearance” of a bread-winner is usually a financial blow and administrative nightmare for the family.  When the victim was abducted, his salary was cut off.  His family cannot dispose of his property and savings in the absence of a death certificate.  If the “disappeared” person is a father, his absence poses an obstacle to registering children at school, obtaining their national identity cards, and obtaining permission for them to travel abroad. 

Families of the “disappeared” also need moral rehabilitation, a fact that is acknowledged by the Charter and by President Bouteflika’s speech of August 14.²⁴ They have suffered years of social ostracization, due in no small part to efforts by Algerian authorities to cast doubt on the families’ assertion that it was state agents who abducted their relatives, and to suggest that many of the supposed “disappeared” had in fact gone off to join armed groups.  After first ignoring the issue, much of the Algerian media participated in this campaign to discredit the families and their claims, although coverage has grown more balanced in recent years.

The Charter does not make clear whether persons kidnapped by armed groups and who are still missing are to be included among the “disappearances” for which the state will provide compensation and assistance.  The Charter seemingly refers to these cases when it declares, “In numerous cases…disappearances are the consequence of the criminal actions of bloody terrorists who arrogated to themselves the right of life and death over anyone they wished, Algerian or foreigner.”  The Charter goes on to state, “The State will take charge of handling the cases of all persons who ‘disappeared’ in the context of the national tragedy and will take the measures warranted by the situation.” [Emphasis added.]

The Charter acknowledges the need to help families of the “disappeared” to “cope with this terrible ordeal in dignity.”  It unfortunately does not contain similar language about the need to assist another category of victims of political violence in need of special attention: women who have been raped.  While the Charter correctly classifies rape as a grave crime that should not be subject to an amnesty, it does not explicitly mention rape victims, who remain in critical need of assistance to address their ordeal and its aftermath in all of its dimensions.

While the Charter is a step forward in terms of acknowledging state responsibility and the need for compensation and rehabilitation, it contains no parallel commitment to provide families any information whatsoever concerning the fate of their missing relatives. The families of the “disappeared” have endured years of uncertainty about the fate of their relatives; their efforts to obtain information from state bodies and the courts have been fruitless.  Some families cling to the hope that their relatives are still alive and in secret detention; if they are dead, they want to know where they are buried so they can finally mourn in accordance with their preferences and traditions.  Others seek information about why their relatives were arrested and what happened to them afterward, hoping to vindicate their claim that their missing relative had done nothing to warrant arrest. 

Given that the Charter makes no explicit commitment to providing families the truth, it is that much more disturbing that the Charter’s proposed measures of assistance and compensation are addressed exclusively to the beneficiaries of the “disappeared” and not to the “disappeared” themselves.  This would be appropriate only if state officials had confirmed in a verifiable fashion that each of the “disappeared” was in fact now dead, something they have never done, either collectively or individually.

The right to know is commanding increased attention in international law, although it is not yet definitively established in human rights treaties and covenants.  The experience of post-conflict societies demonstrates that reconciliation is unlikely without disclosure of the truth, both for the benefit of victims and their survivors and for the society as a whole.  Argentina, Chile, Guatemala, South Africa, and Sri Lanka are among the many countries that established national truth commissions that published extensive reports of their findings.  Argentina, Guatemala, and Sri Lanka each experienced, like Algeria, “disappearances” numbering in the many thousands.²⁵ 

In 2005, the U.N. Commission on Human Rights passed a resolution entitled, “The Right to the Truth.”  It stresses “the imperative for society as a whole to recognize the right of victims of gross violations of human rights and serious violations of international humanitarian law, and their families, within the framework of each State’s domestic legal system, to know the truth regarding such violations, including the identity of the perpetrators and the causes, facts and circumstances in which such violations took place.”  The resolution goes on recognize “the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights.”²⁶

The U.N.’s Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity states, “Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.”  The Principles also state, “Irrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims' fate.”

Exclusion of the FIS from Political Life

The Charter proposes to ban from political life those “responsible for instrumentalizing religion” for political ends.  Algerians and others see this formulation as targeting the Islamist Salvation Front (FIS) and its leaders. The military-backed government banned the FIS after that party won the first round of parliamentary elections in December 1991.  The Charter states:

Although the Algerians are a forgiving people, they cannot forget the tragic consequences of the nefarious instrumentalization of the precepts of Islam, the state religion.  They affirm their right to protect themselves from any repetition of such missteps and decide, in a sovereign manner, to forbid those responsible for that instrumentalization of religion any possibility of exercising any kind of political activity, regardless of the banner.

The sovereign Algerian people decide also that the right to engage in political activities cannot be extended to anyone who participated in terrorist activities and who, in spite of the frightful human and material harm inflicted by terrorism and by the instrumentalization of religion for criminal ends, refuses to recognize his responsibility in conceiving and putting into place a pseudo-Jihad policy against the nation and the institutions of the Republic.

The Charter does not spell out the details of how the prohibition would be carried out.  Algeria’s 1997 law on political parties prohibits, in Article 5, parties “that found their creation or their action on a basis that is religious, linguistic, racial, gender, corporatist, or regionalist.”  Article 17 gives the interior minister the authority to refuse applications for new political parties.²⁷

It is not clear whether approval of the Charter would lead to the drafting of new legislation or a tougher application of existing legislation. At stake is the right of Algerians to freedom of association and the right to take part in self-government through free and fair elections, a right guaranteed by Article 25of the International Covenant on Civil and Political Rights.²⁸  Human Rights Watch recognizes that a state may ban from political life individuals who practice or who incite others to violence, as well as parties and organizations that practice or incite violence.  However, the criteria for imposing such a ban must be clear, based on verifiable facts, and subject to review by an impartial body such as an independent court. Prohibitions must be subject to a meaningful appeals process.

The decision by the military-backed government to ban the Islamic Salvation Front in February 1992 did not meet these criteria.²⁹  Since then, Algeria has legalized three Islamist parties that have representatives in the National Assembly: the Movement of Society for Peace, the Movement for National Reform, and the Nahdha movement.  But the FIS remains banned, and the authorities have since denied other new parties legal recognition, in violation of the right of Algerians to form political parties.  For example, Wafa, the party of former foreign minister Ahmed Taleb Ibrahimi, was refused legal recognition in 2000 on the grounds it was an attempt to resurrect the FIS.  Also in 2000, authorities refused to legalize the Democratic Front, a new party headed by former prime minister Sid Ahmed Ghozali.

Thus, Algeria has used existing laws abusively to refuse legal recognition to political parties. The language of the Charter raises concern that the pattern will continue.

The Charter’s Rejection of Collective Guilt

The Charter contains a plea to end any form of “exclusion” directed at relatives of “terrorists,” and pledges unspecified measures of “national solidarity to help these families who were impoverished and traumatized by terrorism through their relatives’ involvement in it.”In his speech of August 14, President Bouteflika said, “Our religion of clemency and brotherhood teaches that persons are responsible only for their own acts. The families, the widows, the orphans of those who joined the ranks of the terrorists cannot be held responsible for those acts; nor can they be rejected by our society.”

This plea for individualized guilt is a welcome gesture.  More appropriate and perhaps also more helpful to national reconciliation would be acknowledgment by the state of its own role in persecuting and discrediting the relatives of suspected militants.  In many instances, security forces targeted persons for arrest, torture, and even “disappearance” whose only apparent “offense” was a family or spousal relationship with a suspected militant.