Algeria agrees to a Commission of Inquiry
by Olivier Russbach (director of the Research Centre Droit International 90), May 1998
An investigation into the Algerian massacres could be carried out without the pretence of so-called « interference » in another country’s affairs. A legal approach to the question could provide an alternative to the political-humanitarian approach which has been unsuccessful. It is time to try the juridico-humanitarian approach, which implies using existing international law.
Algeria officially accepted the principle of an investigation by an international commission, the International Fact-Finding Commission, when, on August 16, 1989, it recognised the competence of the said commission set up to establish the reality of facts alleged to constitute grave breaches of the Geneva Conventions of 1949, i.e., war crimes.
The creation of such a body is implicit in the Geneva Conventions of 1949, which specify the obligation to pursue serious offenders of humanitarian law. As legal logic requires, the 1949 texts recommended an « investigative procedure », however they did not formally establish the commission. The International Fact-Fiding Commission was officially set up in 1977, in the first additional Protocol of the Geneva Conventions, which Algeria ratified the 1977 Protocol freely, without any extrenal pressure or interference, nine years ago. The Commission has been operational since 1992, with its headquarters, office and secretariat in Bern. It is composed of fifteen members,including highly recognized jurists, who serve as individuals and do not represent their countries of origin. Its president is the Dutch professor Frits Kalshoven, who formerly presided the ad hoc commission created by the UN Security Council to investigate crimes committed in former Yugoslavia.
Algeria’s commitment to the Commission appears to be a serious one : the commission’s first vice-president is an Algerian; its web site is located in Algiers.
The Commission is independent. It does not require a decision by the Security Council to proceed. It may be petitioned by any state which has signed Protocol I, which recognises its competence and which alleges grave breaches or other serious violations of the Geneva Conventions by another state having also accepted the competence of the Commission. There are currently fifty-three such states. The Commission may itself offer its good offices with a view to putting a stop to these offences.
Obviously, there are difficulties inherent in the functioning of instruments set up by international law. But these difficulties are not due to the nature of international law itself: the competence of any court may raise delicate questions for jurists, and often, in the course of action, they are forced to alter their strategy. Among the preliminary questions concerning the competence of the Fact-Finding Commission in Algeria, qualification of the conflict may be the most important. The Commission may indeed only be competent for crimes committed during international conflicts (involving two or more states), thus excluding internal conflicts. Some experts believe this to be the case, others disagree. While this is a proper, necessary debate, which can now move from the theoretical to the legal domain, we must recall that the Commission itself judge its competency. Thus, were it to be petitioned, it would have to settle the issue.
« Algeria would never accept an investigation! » « It would mean admitting to grave breaches of the Geneva Conventions. » « None of the fifty-three states having recognised the CIEF’s competency, would accept to petition it! »… At times, international law’s defeatist approach leads to its own negation. But the imperative mode generally used to negate international law does not make the negation legal.
Compared with the supposed « legal void » the international community often locks itself into, the attempt to petition the Commission would at least have the advantage of initiating a public debate on the matter of recourse to existing international legal instruments. The political questions raised by this debate do not constitute legal obstacles. As to the legal questions, they are neither inaccessible nor daunting, on the contrary. Citizens are capable of and eager to follow highly technical legal debates when circumstances require.
Once the debate is launched on the eventual competence of the Commission in the Algerian killings, these questions will assume their full importance. Perhaps the Commission will consider itself competent only with respect to crimes committed during international conflicts. Algeria itself may defend this restrictive interpretation. Perhaps the killings that took place in Algeria are part of a strictly internal conflict, perhaps they are not, since Algeria regularly accuses foreign countries, in particular European, of knowingly providing bases for terrorists carrying out crimes on its territory, and thus of harbouring criminals and even being accomplices.
In any case, it would be well worthwhile to request, or propose to Algeria that she should accept, or herself solicit, an inquiry by a commission whose competence she has previously acknowledged, an inquiry which would not result from a decision by the Security Council, and which therefore would have no punitive, offensive or « Western » character. Eleven members of the European Union out of fifteen, twenty-six members of the European Council out of forty, including the Russian Federation, which opposes an inquiry ordered by the Security Council, recognise the competence of the International Fact-Finding Commission. If they allege that grave breaches of the Geneva Conventions have occurred in Algeria, they could try to petition the Commission, thereby proposing a broad and constructive interpretation and implementing of their obligations. The first article common to the four Geneva Conventions gives them the possibility of at least taking up such a cause. The article stipulates that signatories are under obligation to « respect and ensure respect » of international humanitarian law « in all circumstances ». Since the Commission is expressly competent to facilitate the restoration of respect of international law, the investigation it would carry out would in addition constitute one of the ways offered by the international legal system to reestablish international law and order.
Among the European Union’s states most visibly active on the Algerian question, Belgium, which recognised the Commission’s competence in 1987, or Germany, which recognised it in 1991 and whose foreign minister, Klaus Kinkel, recently declared that « the terror in Algeria is beyond all comprehension », could act in favour of a petition. The United Kingdom, which headed a diplomatic mission to Algiers this Spring, ratified Protocol I to the Geneva Conventions in January, and is getting ready to recognise the Commission’s competence. (1) It could thus also act very quickly.
No special agreement will be necessary between Algeria and Belgium, Algeria and Germany, or Algeria and the United Kingdom, once the latter has achieved its recognition of the Commission, to petition it. The declaration of acceptance is equal to an agreement to petition with respect to the states which have made the same declaration and which would now allege grave breaches of humanitarian law.
Aside from legal technical questions, one disadvantage which may be brought up with respect to intervention by the Commission, is that its work is secret. But is this not a basic element of legal investigations? And if this argument were to constitute a real obstacle, would it still not be useful to weigh the intervention of an existing, independent commission, which has a legal character, whose investigations are secret, against a mediatised, forced, ad hoc investigating body which would be politically inspired? All the more so that the concerned parties are free to renounce secret investigations and, as expressly provided in the Commission’s founding text, request that its conclusions be made public.
Another problem is the cost. The state which requests an investigation by the International Fact-Finding Commission must pay the financial expenses involved. None are perhaps eager to take on this burden. But there is room here for human rights associations to lobby for the financial question to be solved satisfactorily. In doing so they would be supporting the rights of individuals to see their respective governments utilise available legal instruments to see that international humanitarian law is respected.
A last « obstacle » may be invoqued, though it is not a legal one : neither France nor the United States have ratified Protocol I, much less accepted the Commission’s competency. One sometimes believes that only those texts which are recognised by the major democracies have the force of law. Of course, this is just an idea, whose roots we can imagine. However tenacious, it will surely be considered juridically erroneous, un-founded and indefensible. Yet the fifty-three states which have recognised this instrument to date and which would seek to establish the legal link between the crimes committed in Algeria, their recognition of the Commission and their obligation to respect and ensure respect international humanitarian law, can prove that international law can work even though superpowers do not help.
In the end, the advantage could either be to make the international legal system work, thereby refuting allegations of its non-existence or inefficacy. Or alternately, to emphasise clearly its failings, in order to remedy them.
(1) Foreign Office communiqué, 28 January 1998.