Self-amnesty of criminal generals is unconstitutional and illegal
Algeria-Watch, March 5, 2006, Translation from french
Today in Algeria, we are witnessing an ultimate attempt to blot out the truth and to dissolve the institution of justice. On February 28, 2006, the Algerian president adopted an Order and three decrees of implementation of the ‘Charter for Peace and National Reconciliation’. This Charter was promulgated in August 2005 and submitted to a referendum on September 29, 2005, but it did not deceive the Algerians. Measures once more presented as ‘reconciling’ were in fact meant only to turn a page in untruth and denial. Not many of the Algerian population went to vote, even if the authorities stated a record participation of 80% and a 98% favourable vote for the Charter. Invigorated by such a falsified score, President Bouteflika told MPs that the texts would come up for debate in Parliament. Five months later, the matter isn’t even mentioned anymore. The declared intentions of the legislator cannot muffle the sound of boots, for nobody ignores that the putschist generals hold the real power and are past masters in ‘dirty war’ as well as in legalistic masquerade.
Following the interruption of the first pluralistic general elections in 1991 due to the victory of the Islamic fundamentalist party FIS, the suspension of the Constitution, the dissolution of Parliament, the resignation of the president, a few generals who were mainly concerned with retaining their privileges established a state of emergency and promulgated the antiterrorist law. The country was thrown into horror, living outside the laws that had governed it up to then. As from 1995, the military command organised a return to an apparent, signposted and tightly controlled lawfulness. The ‘institutional construction’ was advocated by those who for years had seriously undermined social cohesion through massive arrests, massacres and population displacement. The so-called ‘democratic process’ was imposed through the designation of presidential candidates, by bringing the opposition parties to heel or banning them and through blatant frauds at elections. The resulting Parliament plays to perfection the role of puppet theatre, as assigned to it by the ‘decision makers’.
In October 1997, against a background of almost daily massacres of civilians, the ‘political class’ tacitly accepted that a secret agreement – of which it entirely ignored the terms – be settled between the armed groups and the military command, thus short-circuiting both the presidency and the FIS politicians. To date, nothing has transpired about this agreement. However, the measures taken later under the 1999 ‘Civil Harmony Law’ and those foreseen by the February 2006 presidential Order express the will to organize opacity around crimes committed during the ‘dirty war’ years, and to ensure impunity both to the Islamic fundamentalists who accept to surrender and to the members of the security forces and militias involved in the fight against terrorism.
Therefore, nowhere in the implementation provisions of the ‘Charter for Peace and National Reconciliation’, does the State recognize any responsibility of its institutions in the serious human rights violations committed during all these years. No mention is made of the tens of thousands of people who were tortured and summarily executed by State agents, nor is any mention made of the massacres of civilians claimed by armed groups referring to Islam and who may have been manipulated by the army’s secret services (the DRS, the Information and Security Department). According to the fourth chapter of the Order, those missing are the only mentioned victims of State terrorism. The thousands of missing persons, although recognized as victims of the security forces by the commission mandated by the President of the Republic, are granted the status of ‘national tragedy’ victims in the same way as all victims. Their families may request death certificates that give them a right to compensation. But no recourse is accepted, no complaint admitted. Truth and justice are sacrificed on the altar of the reason of State.
This reason of State defines only one category of culprits: the followers of ‘Islamic terrorism’. A policy of clemency is apparently applied to them, as chapter two of the Order foresees the cancellation of legal proceedings for those who did not commit acts of massacre, rape or bomb attacks. The beneficiaries will be those who are wanted or have been sentenced in absentia and who give themselves up within a six-month period, as well as those detained without being definitely convicted. The condemned belonging to this category will be pardoned, while those who have blood on their hands will have their penalty reduced or commuted. Such measures are similar to those of the so-called Civil Harmony Law of 1999, which had already ensured impunity for thousands of criminals: it made provision for a ‘controlled’ amnesty for those who accepted to surrender to the authorities, while even those who had committed blood crimes and rape would benefit from ‘probation’ if they accepted to cooperate in the ‘fight against terrorism’.
The new Order holds that those who have benefited from the Civil Harmony Law may at present regain their civil rights, but it prohibits ‘political activity in any form whatsoever by those responsible for abusive utilisation of religion’, with no further clarification. This confirms that the 1997 ‘deal’ between the military on both sides provided for the relinquishment of all political activity in exchange of the renunciation of any legal action.
The most outrageous provision of the Order is to be found in chapter six, which ensures impunity for all who – designated as ‘artisans of safeguarding the Republic’ – have directly or indirectly participated in the fight against terrorism. Article 45 specifies that ‘no legal proceedings may be initiated against an individual or a collective entity, belonging to any component whatsoever of the defence and security forces of the Republic […]. The competent judicial authorities are to dismiss all accusations or complaints’.Thus, at present, the law itself codifies impunity.
Such impunity already existed de facto – as to date not one complaint by a victim of State terrorism or a victim’s parent has had any effect -, but it was mainly due to the fact that justice was under control and did not hesitate to flout the law. The only exception to this ‘rule’ seems to have been the death sentence, on January 23, 2006, of the former officer Habib Souaïdia, following the complaint lodged by the parents of three men kidnapped by the security forces in July 1994 and who then disappeared (in a communiqué, Habib Souaïdia gave the names of the DRS officers who are the true authors of these crimes). In fact, he was subject to the wrath of his former superiors after he had published, in France, in 2001, a book called The Dirty War, in which he exposed the illegal methods used to fight terrorism and denounced the crimes committed by the army. But this death sentence – pronounced the day before the amnesty Order – is also a clear warning to remain silent aimed at all security force members who may be tempted to reveal the atrocities they had witnessed.
Moreover, the provision clearing the military of all crimes is accompanied, in the Order’s Article 46, by the threat of three to five years imprisonment for ‘anyone who, by speech, writing or any other act, uses or exploits the wounds of the national tragedy, to harm the institutions of the Democratic and Popular Republic of Algeria, to weaken the State, or to undermine the good reputation of its agents who honourably served it, or to tarnish the image of Algeria internationally’. Algerian authorities thereby flout all rights to justice and to the truth, as well as the right to know.
Although in comparison to the 1999 law, the Order does not innovate as regards the treatment in store for the members of the armed groups, its main novelty is the setting up of self-amnesty for the putschists and their subordinates, those who still hold the reins of the country, whether they are in office such as generals Mohamed Médiène, head of DRS, and his deputy Smaïl Lamari (both since September 1990), or are standing back such as generals Larbi Belkheir, counsellor to the President, currently ambassador in Morocco, Mohamed Lamari, former chief of staff in the army, or Khaled Nezzar, former Minister of Defence.
As long as the country’s politics are controlled by the DRS and as long as the state of emergency and the antiterrorist law stay in force, the question of the legitimacy of decisions taken by the Algerian authorities will remain. The Order and the promulgated decrees specify an amnesty that objectively goes against the declared aims: they will not result in peace and reconciliation, as these cannot be imposed by the military through repeated decrees; they do not encourage the search for truth – key condition for justice and pardon, on the contrary, they will increase tensions in a society afflicted by a ‘dirty war’ in which often, for survival’s sake, one needed to choose one’s side.
Finally, the amnesty of criminals within the army and its auxiliaries in the militias is unconstitutional and clearly violates the norms of international law, which Algeria has yet agreed to respect. Indeed, article 132 of the Constitution specifies that ‘treaties ratified by the President of the Republic, under the terms laid out in the Constitution, transcend the law’. Yet article 2.3 of the ‘International Agreement on Civil and Political Rights’, ratified by Algeria on September 12, 1989, provides that the States parties to the agreement commit themselves to guaranteeing that anyone whose rights and freedoms recognised by the agreement are violated, will have a right to recourse, even if the violation is committed by persons acting in the exercise of their official duties. Whether it be in its spirit or in the written word, this provision is obviously violated by the 28 February, 2006, presidential Order, thus making the latter legally invalid.
Self-amnesty of the generals will not prevent the truth to come to light on the crimes against humanity committed in Algeria since 1992. And it will not prevent legal proceedings against criminals outside Algeria, as the law upon which it is founded is indeed illegal.