A legacy of impunity: A threat to Algeria's future

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A legacy of impunity: A threat to Algeria's future

A report by Amnesty International, March 2009

1. Introduction

The long search for truth and justice

Louisa Saker has not seen or heard from her husband Salah Saker since 29 May 1994, when he was arrested at 6:45pm at their home in the north-eastern city of Constantine. Fifteen years on, her life remains dominated by the pain of his enforced disappearance and her ceaseless efforts to find him and obtain justice in the face of the Algerian authorities' intimidation and harassment.

In January 1996, around 20 months after Salah Saker disappeared after his arrest, his wife Louisa gave up waiting for the authorities to answer her letters and filed a complaint with the public prosecutor of Constantine. She alleged that her husband, a member of the Islamic Salvation Front (Front islamique du salut, FIS), had been arbitrarily detained and called for those responsible to be brought to justice. On 4 September 1996, the Constantine judicial police confirmed in a letter to Louisa Saker that they had arrested her husband and had transferred him to a military investigation centre on 3 July 1994. This official acknowledgement by the judicial police of the transfer of Salah Saker to the custody of the military intelligence is unique, as in almost all cases of enforced disappearances known to Amnesty International, officials consistently denied their implication in enforced disappearances and claimed to have no knowledge of the disappeared individual's whereabouts.

In December 1998, Louisa Saker received contradictory information from the National Observatory for Human Rights (Observatoire national des droits de l'homme, ONDH) telling her that, according to the security forces, Salah Saker had been "abducted by an unidentified armed group" and that the authorities had no additional information.

To date, the authorities have given Louisa Saker no explanation for his arrest. They did, however, inform the United Nations Human Rights Committee that he was wanted by security forces due to his "membership of a terrorist group" and that he had been sentenced to death in his absence on 29 July 1995.

In a landmark decision on enforced disappearances in Algeria, the United Nations Human Rights Committee ruled in March 2006 that the Algerian authorities must launch a full investigation into the fate of Salah Saker, release him if he is still alive, compensate him and his family for the violations suffered, and bring those responsible for his enforced disappearance to justice. Despite this decision, in August 2008, the judicial authorities in Constantine dismissed Louisa Saker's complaint regarding the enforced disappearance of her husband without providing any explanation. She has appealed.

Louisa Saker, herself, was targeted for her efforts to obtain truth and justice. In February 2008, she was tried in Constantine on charges of undermining the authority of public officials, organizing an "unauthorized unarmed march", contempt of civil servants with use of weapons and theft. The charges related to her participation in a peaceful demonstration in 2004 in Constantine by families of people who had disappeared. After the protest, she was arrested, beaten and forced by police to sign an undertaking not to participate in such demonstrations again. She was convicted of participating in an "unauthorized unarmed march" and given a suspended fine. She was acquitted of the other charges. In November 2008, the Court of Appeals of Constantine confirmed the sentence. At the time of writing, Louisa Saker was awaiting the review of her case by the Supreme Court, after both she and the prosecution appealed.

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As Algeria is preparing for its third multi-party presidential elections since the end of the worst of the violence that ravaged the country in the 1990s, the failure to adequately address the legacy of grave human rights violations and abuses in its context continues to undermine any prospects for genuine national reconciliation and lasting peace. Nearly 10 years have passed since the Algerian authorities began to introduce amnesty measures with the stated intention to "turn the page" on the "national tragedy" that took up to 200,000 lives according to official estimates. The internal conflict was sparked by the cancellation in 1992 of multi-party elections which the Islamic Salvation Front (Front islamique du salut, FIS) was set to win. A state of emergency was declared, the FIS was banned, the president resigned - apparently due to pressure from the military - and was replaced by a five-member High Council of State (Haut Comité d'Etat). Seeking to claim the electoral victory of the FIS by means of violence, armed groups targeted state institutions and increasingly civilians thought to have backed the military, or to have failed to conform to their conception of "Islamic" values. Armed groups committed widespread human rights abuses, including unlawful killings, collective massacres, abductions, torture and rape. The Algerian authorities also played a major part in escalating the violence to root out support for the FIS by some sections of the population or to punish real or perceived supporters of armed groups, in the name of countering terrorism. The security forces and, later, state-armed militia (referred to by the authorities as "legitimate defence groups", "self-defence groups" or "patriots") committed massive human rights violations, including extrajudicial executions and other unlawful killings, enforced disappearances, secret and arbitrary detentions and torture and other ill-treatment of thousands of real or suspected members or supporters of armed groups. Most of the crimes were never investigated and the perpetrators were never held to account.

Far from providing the hundreds of thousands of victims, survivors and their families with truth, justice and reparations, amnesty measures introduced from 1999 onwards further entrenched a climate of blanket impunity to the perpetrators of serious crimes under international human rights and humanitarian law.1 Little has been done to ensure non-repetition of grave human rights violations and to introduce needed judicial and institutional reforms. This failure to combat impunity and address the structural framework that allowed for such grave violations of human rights to occur not only leaves a society unable to move on and heal from the legacy of a decade of widespread violence, but also fails to prevent further human rights violations from taking place.

Despite the notable decrease in the level of violence and death tolls since the 1990s, Algeria continues to suffer violent attacks and the Algerian security forces continue to conduct security operations against armed groups. The al-Qa'ida Organization in the Islamic Maghreb, formerly known as the Salafist Group for Preaching and Combat (Groupe salafiste pour la prédication et le combat, GSPC), is reported to be the main active Islamist armed group in Algeria, and continues to claim responsibility for attacks on both civilians and military personnel and installations. Amnesty International unreservedly condemns such deliberate attacks against civilians and indiscriminate attacks, which show a complete disregard for the right to life. 2 Governmental forces continue to kill dozens of alleged members of armed groups during search operations, armed confrontations and skirmishes. Few official details are made available as to the identity of those killed and the circumstances surrounding the deaths are rarely given, raising concerns that some of those killed may have been extrajudicially executed. According to media reports, the total death tolls were estimated at 300 in 2006, 490 in 2007 and 340 in 2008. Despite this, the Algerian authorities, frequently make public declarations that they have been able to achieve stability in Algeria, that they have seriously undermined the ability of armed groups to carry out attacks in Algeria and that they have the threat of terrorism under control. Nonetheless, the Algerian authorities continue to justify the continuation of the state of emergency in place since 1992 by the persistence of the threat of terrorism. 3

While there is no doubt that the scale and gravity of human rights violations and abuses is markedly less today than it was during the internal conflict, serious human rights violations continue to be committed particularly in the context of counter-terrorism by the same state agencies which committed serious human rights violations during the internal conflict in a climate of nearly total impunity. Serious concerns remain on the occurrence of human rights violations, such as secret and incommunicado detention, torture and other ill-treatment and unfair trials in cases involving individuals alleged to be involved in "terrorist or subversive" acts. 4 Despite the authorities' statements in their reply to requests for clarification by the United Nations Committee against Torture in the context of its review of Algeria's third period periodic report in May 2008 that the state of emergency does not infringe on the enjoyment of human rights 5, the occurrence of these violations in a climate of impunity is facilitated by the state of emergency. Under its framework, the authorities adopted specific emergency laws which are now for the most part incorporated into the Penal Code and the Code of Criminal Procedure and which are not in line with Algeria's international obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (see Chapter 3.3).

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Impunity for human rights violations is taking place in the context of the general public's increased disillusionment with the political system and state institutions' ability to address the population's socio-economic grievances such as unemployment, housing shortages, low wages, corruption and other problems. This disenchantment is ostensibly reflected by the low turnouts in the last presidential elections held in April 2004 and the latest parliamentary elections that took place in May 2007; the frequent attempts by Algerian youth at migration despite the perils involved and the increased waves of protests in recent years across the country, as well as other instances of social unrest such as the events that shook the province of Ghardaia in May 2008 and January 2009. The November 2008 amendments to the Constitution allowing the current president, Abdelaziz Bouteflika, in power since April 1999, to stand for a third term in the upcoming elections scheduled to take place on 9 April 2009 were met with little surprise and resistance. In order to regain the confidence of the population, the Algerian authorities need to demonstrate political will and transparency in tackling the legacy of the 1990s internal conflict as well as the ongoing human rights violations particularly in the context of counter-terrorism and in upholding the economic, social and cultural rights of all Algerians. They specifically need to realize the promises they have been making since April 1999 to the Algerian people, including victims of the violence, that effective measures will be taken to re-establish peace and guarantee remedies to all those affected by the violence. Amnesty International believes that the achievement of these stated objectives will be facilitated by a genuine and transparent consultation with all relevant stakeholders in society including victims and their families. The authorities' efforts must be grounded in international human rights law in order to put an end to impunity and restore the rule of law through a series of institutional and judicial reforms and their effective implementation.

On the international level, Algeria has emerged as an important ally to the United States and other countries in the so-called "war on terror". The United States and European countries continued to overlook Algeria's human rights record at the expense of other interests including trade, the control of migration and security. In regards to security cooperation, European countries such as France and the United Kingdom transferred to Algeria in recent years individuals they deemed as threats to their national security, despite evidence of grave human rights violations such as torture and other ill-treatment in Algeria. These unlawful returns were justified by the United Kingdom by assertions that terror suspects would benefit from amnesty measures for members of armed groups adopted by the Algerian authorities from 1999 onwards, despite concerns over the fact that these measures contravene international law, their arbitrary application and declarations by Algerian authorities that they will not benefit persons suspected of terrorism offences abroad (see Chapter 2).

Nonetheless in recent years, Algeria's human rights record has been scrutinized by a number of United Nations bodies, including the Human Rights Council in the framework of the Universal Periodic Review, the Special Rapporteur on violence against women, its causes and consequences, the Human Rights Committee and the Committee against Torture. Amnesty International has particularly welcomed the recommendations by the latter two, pronounced in November 2007 and May 2008, respectively, calling on the Algerian authorities to take concrete measures to combat impunity; to investigate all cases of grave human rights abuses including enforced disappearances, torture and rape; to bring perpetrators to justice in proceedings meeting international standards for fair trial; to provide victims and their families with effective remedy and to bring national legislation in line with international standards.

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About this Report: Purpose and Methodology

Regrettably, Amnesty International has been unable to visit Algeria since 2005 and was notified by diplomatic representatives of Algeria in the United Kingdom in 2006 that its criticism of Algeria's amnesty measures was not well received at the highest level of the state. The material used to compile this report is the result of the organization's continuous research work on Algeria for the past 15 years and covers information up to March 2009. The report includes information provided to the organization by human rights victims, their families and lawyers and Algerian human rights organizations. 6 The report builds upon information previously made publicly available by the organization in reports 7 as well as submissions on Algeria to various United Nations mechanisms, including the Human Rights Committee, which reviewed Algeria's record after a nine year gap. 8

This report is published in the hope that the next president of Algeria will take concrete steps to end impunity, including by implementing the recommendations of the United Nations bodies outlined above - steps which Amnesty International considers essential to truly "turning the page" on the conflict that ravaged the country in the 1990s. The report highlights the organization's main concerns on the lack of investigations and public information into serious past and present human rights abuses and the impunity afforded to their alleged perpetrators. The report hopes to contribute to the work of human rights defenders, victims and their families and others inside and outside of Algeria in their relentless struggle to ensure that the suffering of victims of human rights abuses is not forgotten, that the dignity of victims is restored, and that grave human rights abuses are never repeated. In this spirit, Amnesty International offers these key recommendations to the next president of Algeria (see Chapter 6 for an extensive list of recommendations):

• Repeal Articles 45 and 46 of Ordinance No. 06-01 of 2006, which, respectively, give impunity to security forces and state armed militias for serious human rights violations and threaten with imprisonment any individual criticizing the conduct of security forces; and other provisions of Ordinance No. 06-01 of 2006 which provide immunity from prosecution for members of armed groups who committed grave human rights abuses;

• As a demonstration of the commitment to bring to close the "national tragedy", immediately publicly disclose detailed information about the numbers and the names of members of armed groups who have benefited under various amnesty measures adopted since 1999; the results of the ad hoc Commission on disappearances established in 2003; and details on the implementation of the financial assistance schemes for families of victims of enforced disappearance and families of those whose relatives were suspected to have been killed while in ranks of terrorist groups;

• Guarantee that no evidence of unlawful killings - particularly grave sites - is destroyed;

• Clarify the fate of victims of enforced disappearances and provide their families with an effective remedy, which includes access to justice and full reparation. Ensure that financial support to families of victims of enforced disappearances is not conditional upon presentation of death certificates;

• Conduct investigations into cases of enforced disappearances and unlawful killings by an independent judiciary or through the establishment of an appropriate mechanism with investigative powers to subpoena members of security forces and other officials, regardless of rank, and members of armed groups, even those who have previously benefited from amnesty measures;

• Ensure that all arrests and detentions comply fully with procedures established by the law; introduce additional safeguards to protect detainees against torture and other ill-treatment, in particular by granting anyone who is taken into detention prompt access to lawyers and put an effective end to incommunicado detention;

• Take immediate steps to ensure that officers of the Department for Information and Security (Département du renseignement et de la sécurité, DRS), who routinely violated and continue to violate legal safeguards, no longer carry out arrests and detentions and that they will no longer be able to exercise judicial police functions; and to bring all detention centres under the oversight of civilian authorities; and

• Implement the recommendations of the Special Rapporteur on violence against women, its causes and consequences to establish an independent and impartial commission to investigate crimes of sexual violence during the internal conflict, publish its findings, and provide adequate compensation and medical, psychological and social rehabilitation for the victims.

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2. Institutionalized Impunity

"...amnesties or other impediments which preclude or indicate unwillingness to provide prompt and fair prosecution and punishment of perpetrators of torture or ill-treatment violate the principle of non-derogability."

United Nations Committee against Torture, General Comment No. 2, 24 January 2008

"...accountability of perpetrators, including their accomplices, for grave human rights violations is one of the central elements of any effective remedy for victims of human rights violations and a key factor in ensuring a fair and equitable justice system and, ultimately, reconciliation and stability within a State..."

United Nations Commission on Human Rights, Resolution 2003/72 ("Impunity"), 25 April 2003

"...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;"

United Nations Human Rights Council, Resolution 9/11, 24 September 2008

No section of Algerian society has been left untouched by the violence that ravaged the country in the 1990s. Its grim legacy continues to weigh heavily on the Algerian people. Rather than addressing this legacy, the Algerian authorities have endorsed and institutionalized impunity and effectively deprived victims of their right to obtain truth, justice and full and effective reparation in the name of "national peace and reconciliation". The almost complete de facto impunity enjoyed by members of the security forces and state-armed militia has been extended to members of armed groups, who have, since 1999, benefited from successive amnesty measures, failing to recognize the right of victims and their families to obtain an effective remedy for the abuses to which they were subjected. Despite outcries by victims and their families, impunity for security forces, state-armed militias and members of armed groups has been further entrenched under Ordinance No. 06-01 of February 2006, implementing the Charter for Peace and National Reconciliation, a framework document adopted by national referendum in September 2005.

These two sets of amnesty measures adopted in 1999-2000 and 2005-2006 not only prevented victims and their families from obtaining justice at the risk of prosecution in the case of the latter, but have also closed the door to investigations into human rights violations committed by security forces and state-armed militias, denying victims and their families the right to obtain the truth in contravention to international human rights law. As for abuses committed by armed groups, the lack of transparency and public disclosure by the authorities on the investigations they had carried out and the basis on which amnesties were granted to members of armed groups who surrendered, also effectively translated into a denial of truth to victims and their families. Even though thousands of people were tried and convicted of vaguely worded terrorism-related charges, often on the basis of confessions allegedly extracted under torture, these trials did little to uncover the truth about abuses or establish responsibility.

These amnesty measures were presented as positive initiatives by the Algerian authorities to bring to an end to what they dubbed as "black years" or the "national tragedy" - terminology that implies that the authorities had no role in escalating the violence and had no responsibility for the grave human rights abuses that took place during the 1990s. In fact, the Algerian authorities continue to argue in national and international forums that security forces and state-armed militias demonstrated great patriotism and even heroism and made invaluable sacrifices in the face of terrorism that threatened to destroy the nation. Abdelaziz Bouteflika, elected President of Algeria in 1999 and 2004, instigated and promoted both sets of amnesty measures. His speech on 14 August 2005 calling of Algerian citizens to vote in favour of the Charter for Peace and National Reconciliation provides an accurate depiction of the authorities' continuous public portrayal as blameless in the internal conflict and as successful in their efforts to achieve "national peace and reconciliation":

"It is due to the sacrifices of our security forces, led by the National Popular Army, worthy inheritor of the National Liberation Army, supported by all the patriots, that Algeria was able to push aside the scourge of terrorism... we have together opened the way for Civil Harmony, that you have supported massively and of which we have gathered priceless fruit in the re-establishment of security... the project of national reconciliation, submitted to your free choice is destined to hurry the definitive return of security and peace in our country, and also destined to bring us towards national reconciliation and towards the consolidation of our national cohesion". 9

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First significant set of Amnesty measures: The 1999 Civil Harmony Law and Presidential Decree No. 2000-03

At the initiative of the newly elected Abdelaziz Bouteflika 10, the Civil Harmony Law, or Law 99-08, was passed and entered into force on 13 July 1999, after having been approved by the government and voted by the Parliament and the Senate. Two months later, in September 1999, it was also put to a national referendum which gave it large popular support. 11 It exempted from prosecution members of armed groups who surrendered within six months of the law's entry into force. The law did not cover those who had committed or participated in killing, raping, causing permanent disability or placing bombs in public places. Those who had committed such crimes would, however, receive reduced sentences, which would be further reduced for those who surrendered within three months. 12

Presidential Decree 2000-03, announced on 10 January 2000, granted amnesty and blanket immunity from judicial prosecution without any exclusion clauses to "persons who belonged to organizations which decided voluntarily and spontaneously to put an end to acts of violence" and surrendered themselves to the authorities. The authorities never publicly provided information or precise figures on those who have benefited from this amnesty, despite the fact that the Decree specified that its purpose was to benefit specific identified individuals, whose names were to appear on a list appended to the Decree, which has not been the case to date.

Between July 1999 and January 2000, it has been reported that about 5,500 members of armed groups surrendered under the two amnesty measures. Of these more than 1,000 were members of the Islamic Salvation Army (Armée islamique du salut, AIS) and the Islamic League for Preaching and Holy War (Ligue islamique pour la da'wa et le djihad, LIDD), which had declared ceasefires in October 1997 and have benefited from the presidential amnesty under Decree 2000-03. The remainder, or 4,500, were members of the Armed Islamic Group (Groupe islamique armé, GIA) and other armed groups who were considered under the framework of the Civil Harmony Law. In May 2000, Algerian government officials confirmed to Amnesty International that about 4,500 individuals surrendered under the Civil Harmony Law; of which some 350 people were facing proceedings. It has been reported that since the expiry of the terms of the surrender under the Civil Harmony Law in January 2000, other members of armed groups have surrendered, but it remains unclear whether they still benefited from amnesty measures. Reports indicate that some individuals who surrendered after the expiry period were released immediately following or shortly after their surrender.

The lack of transparency of the process; compounded by the fact that to date the authorities have not officially published exact figures as to how many surrendered under this set of amnesty measures, what investigations took place to determine eligibility under the laws, how many individuals were prosecuted and how many were acquitted or convicted and under what charges, left victims unable to obtain truth and justice.

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Second significant set of Amnesty measures: The Charter for Peace and National Reconciliation and its implementation

Decree No. 05-278 of 14 August 2005, Annex to the Draft Charter for Peace and National Reconciliation

Decree No. 05-278, instigated and supported by Abdelaziz Bouteflika who announced it on 14 August 2005, outlined a framework to bring closure to the internal conflict. It proposed measures to exempt from prosecution current and former members of armed groups, or offer them clemency. It completely absolved security forces and state-armed militias from responsibility in committing human rights violations during the internal conflict by stating that they had acted in the interest of the country. The Charter also denied that the security forces had been responsible for thousands of disappearances, although it promised families of the disappeared compensation and recognition as "victims of the national tragedy". While the Charter was approved by voters in a referendum on 29 September 2005 13, a number of victims and their families and human rights defenders expressed opposition to the Charter, fearing its intention to exonerate perpetrators of grave human rights abuses from responsibility. For example, in the province of Blida, near Algiers, victims of abuses by armed groups and their families gathered at the cemetery on the day the referendum was held to remember the dead and bury their ballots in protest at the provisions of the charter. Their fears that the Charter set a framework for impunity materialized as exemplified by the provisions of the Decree Implementing the Charter for Peace and National Reconciliation, passed a few months after the referendum.

Ordinance No. 06-01 of 27 February 2006, Decree implementing the Charter for Peace and National Reconciliation

The Decree Implementing the Charter for Peace and National Reconciliation was adopted in February 2006 by Algeria's Cabinet, having bypassed a parliamentary debate which was not in session at the time of its adoption. 14 Furthermore, the Decree was adopted without prior disclosure of the text or consultation with relevant stakeholders, such as victims of human rights abuses and their families, effectively preventing any public debate. The Decree not only broadened the terms of the previous amnesty by granting immunity from prosecution for members of armed groups who had not committed abuses of a collective nature or rape, but also provided blanket immunity from prosecution for security forces and state-armed militias, despite the fact that the Charter itself did not explicitly include such a provision. The Decree effectively denied victims the right to remedy for serious human rights violations, in contravention to Article 8 of the Universal Declaration of Human Rights and Article 2 of the ICCPR, to which Algeria is a state party. As provided by international law, victims' right to remedy include equal and effective access to justice; adequate and prompt reparation for the harm suffered and access to relevant information concerning violations and reparation mechanisms - all severely undermined by the Decree's provisions.

The Decree exempted from prosecution any member of an armed group who surrendered between 13 January 2000 and 28 February 2006. It also extended the list of offences eligible for amnesty to include one or more individual murders and acts of torture causing permanent injury, going beyond the exclusions stipulated in the 1999 Civil Harmony Law. Under the terms of this Decree, only those who had committed, were accomplices in, or instigated "acts of collective massacres, rape, or the use of explosives in public places" were not exempt from prosecution. According to official statements, up to 300 members of armed groups surrendered before the deadline expired, but it was not known how many of them were exempted from prosecution and by what process. 15 Others who have surrendered after the expiry of the deadline seem to have also benefited from some form of clemency, although official statistics or details of the process have never been made public.

The Decree also provided for the release under an amnesty of those already detained or imprisoned for alleged involvement in terrorist activities, except for collective killings, rape and bomb attacks. According to media records, quoting official statements, some 2,200 people who had been charged with or convicted of involvement in terrorist activities were freed from detention in March 2006 and in the following months, but the names of those released and the process for determining eligibility were not published. 16 The speed by which the releases occurred raised concerns that full investigations were not conducted in order to ensure that the individuals benefiting from amnesty measures had not committed crimes excluded from exemption from prosecution. Others detained or imprisoned for alleged involvement in terrorist activities and who appeared to be eligible did not benefit from the laws, further reaffirming suspicions on the arbitrary nature of the application of the various amnesty measures introduced by the authorities.