There must be truth and justice for Algeria’s disappeared

By Inès Osman. Originally published on Al Jazeera English on March 3, 2021.

Almost two decades after the end of the Algerian civil war, thousands of families of missing persons continue to suffer from the lasting trauma of their loved ones’ forced disappearance. They face the authorities’ persistent refusal to shed light on their fate and blunt denial of their responsibility.

Today, 15 years after the entry into force of the Algerian “Charter for Peace and National Reconciliation” on February 28, 2006, this text remains the main obstacle families of missing persons face in seeking truth and justice.

Justice denied

From 1992 to early 2002, Algeria was ravaged by a civil war, which claimed as many as 200,000 lives and was marked by gross human rights abuses committed by all parties involved in the hostilities.

Back then, though the gruesome massacres of civilians caught international media attention, little was known about the practice of enforced disappearances by state security forces and by armed groups. While the authorities have since acknowledged that approximately 7,000 individuals went missing, NGOs estimate between 10,000 and 20,000 people were disappeared by state forces during the conflict.

Throughout the 1990s, following their loved ones’ arrest and subsequent disappearance by state security forces or state-armed militias, families enquired with the judicial and governmental authorities about their fate, urging them to carry out investigations. However, they faced silence and denial from these authorities, which refused to give information on their relatives’ whereabouts and accept responsibility for their disappearance. Furthermore, families were often subjected to intimidation and threats, and were often stigmatised as being “terrorists”.

The attitude of the authorities was best illustrated by an incident in September 1999 in which then-President Abdelaziz Bouteflika while giving a speech was interrupted by a woman who asked him about the “disappeared”.

The president rebuffed her, saying: “The disappeared? They are not in my pocket! […] The past is dead!” It is with this intention to bury the past that Bouteflika’s government put forward the Charter on National Peace and Reconciliation which completely deprived victims’ families of their right to seek truth and justice.

Introduced by Bouteflika, the text was adopted by referendum in September 2005 and entered into force on February 28, 2006, through its implementing Ordinance 06-01. The Algerian authorities have claimed that the charter is a model that can “promote a culture of peace, national reconciliation and peaceful coexistence” in other countries recovering from internal conflict.

Behind this narrative lies a very different reality. In the name of bringing stability to the country, the charter established a climate of impunity that still protects perpetrators of serious human rights violations committed during the civil war.

The charter is the first Algerian legal text that refers to the practice of enforced disappearances, but it expressly rejects “all allegations that attribute to the state the responsibility for a deliberate phenomenon of disappearances”, which are said to be “a consequence of the criminal activity of blood-thirsty terrorists”.

Furthermore, the implementing ordinance effectively forbids families from pursuing any legal action for crimes committed by security forces during the war. While article 45 grants blanket immunity from prosecution to members of the security forces, article 46 criminalises any speech or act that “uses or exploits the wounds of the national tragedy to harm institutions”, “undermine the good reputation” of state agents, or “tarnish the image of Algeria internationally”. In other words, anyone seeking redress or raising the issue of disappearances in any way can face from three to five years in jail.

The ordinance, under its article 37, also established a compensation scheme for families of victims of enforced disappearances which requires a death certificate. Those who wish to obtain compensation have to apply for a certificate that would attest to a disappearance “under the circumstances arising from the national tragedy”. In several instances, families were harassed because they refused to receive such a certificate without any investigation being carried out into the abduction of their relatives.

The price of ‘peace’

After families could not obtain redress at the domestic level, several turned to the United Nations human rights mechanisms. However, the authorities refused to respond to individual complaints and resorted to the charter to challenge their admissibility, stating the text provided a “global framework” and constituted, in itself, a domestic remedy addressing the issue of the missing. To date, the UN Human Rights Committee has issued 44 decisions on Algerian cases, but none has been implemented.

The authorities’ refusal to engage on a case-by-case basis with international protection mechanisms demonstrates how the charter has served their tactic of silence and denial. The message was clear: this issue has already been dealt with and belongs to the past.

In addition to the charter being branded as having “erased the aftermath of the national tragedy”, it has also served a political purpose. Remarkably, the Algerian authorities never defined the violence in the 1990s as an armed conflict or a civil war, but rather as a “national tragedy”, during which the state was fighting terrorist groups that were inciting “fitna” (discord).

Ever since the end of the war, the authorities have used the threat of resurgent violence to maintain the political status quo and deter any form of dissent. In 2015, Bouteflika described the successful reconciliation brought about by the charter as “Algeria’s best safeguard against manoeuvres and conspiracies that targeted us in the name of the ‘Arab Spring’”.

The same rhetoric was adopted after the outbreak of the “Hirak” demonstrations in February 2019. Then-Prime Minister Ahmed Ouyahia reminded the Algerian people that the “war in Syria started with flowers too”. Just two weeks later, he was forced to resign and shortly after Bouteflika himself stepped down in the face of massive protests which remained entirely peaceful.

Though the demands of the protests have not been focusing on establishing a comprehensive transitional process, they have demanded an accountable government and the respect of the rule of law, which – if achieved – would be an important first step towards transitional justice.

In fact, the respect of human rights norms – including freedom of expression, peaceful assembly and association – by state institutions, an independent judiciary, and civilian control over military and security forces, all constitute guarantees of non-repetition which would ensure that the atrocities experienced by victims do not recur in the future.

A number of measures could be taken to address the plight of the families of the disappeared, such as the establishment of a national truth-seeking commission along with a reparations programme. Most importantly, the practice of enforced disappearances by state agents must be acknowledged at the highest level and the authorities should revise or repeal Ordinance 06-01 to lift the criminalisation of truth-seeking efforts and allow the prosecution of perpetrators.

Truth-telling and accountability for past violations form an essential component of a democratic transition and greater respect for human rights. The peacefulness of the “Hirak” has proven that peace need not be sacrificed in the struggle to achieve them.