Which 'transitional justice' in Algeria ?
Questions on the possible constitution of a 'Truth, Peace and Conciliation Commission'
Algeria-Watch, April 3 rd , 2007 (translation from french)
Since its engagement in 1997 in information activities on the violation of human rights in Algeria, together with the mobilization in favour of the 're-establishment of peace, truth and justice in Algeria', the Algeria-Watch Association has always considered of great importance any initiative to this purpose. This is why it wishes to react to the idea initiated in March 2007 in Brussels by certain Algerian human rights associations of a 'Truth, Peace and Conciliation Commission respectful of the duties of Justice, Truth, Memory, Dignity and Reparation'.
Such a project occurs in a 'transitional justice' perspective, which has proven its abilities in certain countries, when the right conditions are gathered. Yet, this is far from being the case in present-day Algeria: the current political 'transition' reality is extremely limited, as the country's main leaders of the years of war are still in place. In such a context, the terms of the proposal for a 'Truth, Peace and Conciliation Commission' appear to be unsuited to the current situation, in particular because : a) they seem to exclude a priori any possibility of resorting to Justice; b) they are de facto the expression of only part of the various constituents of Algerian society.
The March 2007 meeting in Brussels
On 18 and 19 March 2007, five Algerian associations (Collectif des Familles de Disparu(e)s en Algérie, SOS Disparu(e)s, Djazairouna, ANFD and Somoud) met in Brussels with the support of the FIDH and in the presence of 'sixty or so people such as families of victims, NGO representatives, Algerian intellectuals, lawyers and international experts in transitional justice'. Initially, the seminar was to be held early February in Algiers, but it was banned by the Algerian authorities.
The aim of the meeting was to lay the foundations for a 'Truth, Peace and Conciliation Commission respectful of the duties of Justice, Truth, Memory, Dignity and Reparation'. The seminar's participants agreed that 'in the dramatic Algerian context, the most suitable solution was through the establishment of transitional justice' and consequently formulated a series of recommendations urging the authorities to engage in such a process.
In absolute terms, that 'associations of victims of the State and of armed Islamist groups which were long divided' have engaged in a common move indisputably represents a positive development in circumstances where advocates for human rights in Algeria are still exposed to the repressive manoeuvres of the authorities. The sincerity of the commitment of the seminar's participants in Brussels is of course not to be questioned.
However, the communiqué issued at the end of the meeting does raise quite a few questions.
'Transitional Justice' without transition ?
In general, debates around the creation of a commission aimed at dealing with serious human rights violations committed during a given period and seen as a necessity for the re-establishment of peace and justice, constitute a complex and delicate undertaking. It commits the entire human rights movement and concerns all the victims of such violations. The reflection thus presupposes the participation of the largest number of stakeholders possible, a condition that was not fulfilled in the case of the Brussels meeting: women and men of quite different political opinions, yet known for their commitment dating sometimes back to before the 1992 putsch, were not invited. For what reasons?
Yet by claiming to be a 'Coalition of victims' associations', the seminar's final statement implicitly intimates to be fully representative. Indeed, the statement does not present itself as a contribution to a necessary debate, but states the prerequisites for the establishment of a predefined commission, as though there was no alternative.
More fundamentally, there is a real question as regards the opportunity of defining today the terms of a 'transitional justice' in Algeria, when the conditions of a genuine 'transition' are far from being at hand. As the organizers explain, during the seminar 'several international experts have shared their transitional justice experience in other countries such as Chile, Peru, Morocco, Rwanda, Colombia and South Africa'. However, in all these countries, the various - and indeed very different - schemes were set up after the main officials responsible for human rights violations and/or State terrorism had withdrawn from government.
Yet, this is not the case in Algeria in 2007. The DRS leaders, generals Mohammed Médiène and Smaïl Lamari, who are those mainly responsible for the terrible 'death machine' that has covered the country with blood since 1992 are still in place (since 1990) and still control the nucleus of power. Indeed, some army leaders have been set aside and replaced, but the main leaders of political parties and pledged media are still there. The civil and military control of society has not undergone tangible upheavals. It is the same blocked and controlled political system that continues to operate. It is the same pledged judicial machinery that continues to serve the interests of the true leaders of this system. And although it is not with the same terrible intensity as before, the repressive machinery set up in 1992 still continues today to manipulate, torture, eliminate and kill. While many members of armed groups - often unidentified, but systematically identified as Islamists - are exonerated of all sanctions for their crimes owing to the implementation of the 'Charter for Peace and National Reconciliation', adopted by the authorities in February 2006.
The Brussels seminar rightly demands the abrogation of this Charter, that also claims to forbid any prosecution of the leaders and members of the security forces responsible for war crimes and crimes against mankind. But how can it simultaneously 'urge' the 'highest authorities of the country' to 'launch an institutional process in view of setting up a Commission for Truth, Peace and Conciliation'? In the circumstances mentioned above, does this not result in conferring to the main persons responsible for the Algerian tragedy, still holding true power, the legitimacy to find a solution for the suffering of their victims and their quest for recognition and justice? A perspective that no serious experience of transitional justice in the world has ever envisaged during the last decades.
'Conciliation' instead of Justice ?
The title of the envisaged 'Commission for Truth, Peace and Conciliation' - but without Justice - had already been recalled in the invitation to the meeting that originally should have been held in Algiers early February 2007 and was banned by the authorities. In the absence of more ample explanations on the aims of the initiators, one should wonder about the title used by the latter, as it appears to be the programme of the seminar. Indeed, what about the term 'conciliation'? Conciliation refers to a very precise legal meaning, designating a procedure used by conflicting parties anxious to arrive at an amicable arrangement without having to go through judicial proceedings. This would thus imply that the initiators of the Brussels meeting intended to avoid any recourse to Justice, while, in Algeria, this has always been a major claim for tens of thousands of victims (of the security forces as well as of the armed groups, of whatever allegiance they were). Otherwise how does one explain the numerous complaints, in particular by families of disappeared, which have been lodged with the Algerian courts of justice?
Debates around the creation of a 'Truth and Justice' commission are not new and belong to a long term effort carried out since more than a decade by human rights activists, at national and international levels. As evidence of this, there are the hundreds of complaints for torture, improper detention, disappearances lodged in Algeria since 1992, the thousands of cases handed over to the different UN working groups, the international mobilization around a commission of inquiry on the killings in Algeria since 1997, the complaints for torture submitted in Europe against the top leaders of the Algerian army and numerous other actions on national and international levels. As these initiatives aim at opening judicial proceedings, should they all be closed and doomed to be forgotten at the cost of an arrangement with the authorities?
Indeed, as already mentioned, the concluding demands in the communiqué issued at the end of the Brussels seminar do assert that the 'Commission for Truth, Peace and Conciliation' would be 'respectful of the duties of Justice, Truth, Memory, Dignity and Reparation'. However, as for 'Justice', it appears to be quite a peculiar 'transitional justice', as neither judicial proceedings nor court appearances or criminal appeal are ever envisaged. Without the definition of the terms by which transitional justice can be envisaged, the latter appears to be reduced to a reform of the proposals made in this respect during the last ten years by those who are responsible of the crimes against mankind committed, at their instigation, by the 'security forces' and who have in practice amnestied those committed by the armed groups invoking Islam.
The real holders of power in Algeria have indeed, in their own way, put into practice a sort of 'transitional justice' by promulgating different laws, whether that of the 'Rahma' in 1995, of 'civil concord' in 1999 or of 'peace and national reconciliation' in 2006. Besides, one of the seminar's participants noted this himself by asserting that 'the charter for peace and reconciliation thus pursues objectives comparable to those strived for by the truth commissions' ( Le Soir d'Algérie, 24 March 2007). The only new item claimed in the communiqué is the search for Truth, a goal indeed absent in the institutions set up by the authorities (such as the national consultative Commission for the promotion and protection of human rights, chaired since 2001 by the lawyer Farouk Ksentini).
The conditions for genuine 'real and sustainable peace'
However, the common points between the arrangements made by the authorities and the suggestions of the 'Coalition of victims' associations' are more numerous than they appear at first glance. Whereas the authorities would massively seek to establish peace and reconciliation via diktats, the commission conceived by the coalition seems to implicitly recommend the Moroccan model of 'Instance Equité Réconciliation - Equity Reconciliation Authority' (IER). This much debated model merely lists human rights violations committed between 1956 and 1999 and hands over a report to the King. The public version of this report does not mention the names of those responsible for the crimes and no sanction is foreseen against them. The IER has organized TV sessions allowing some of the victims to explain their sufferings. In the absence of justice, particular attention is paid to reparations for the victims, a concern that is also to be found in the Brussels project.
One is thus forced to note that the 'Coalition of victims' associations' seems to encourage a solution excluding all intervention of Justice, and this is just what the Algerian authorities are seeking to impose. In any case, the one and the other withhold from analysing the causes that triggered off the war in Algeria in 1992 and have been maintaining a situation of violence since 1999. Yet, such an analysis would allow to better locate responsibilities and to propose solutions, independently from participants' political opinions.
And this is where the Brussels seminar's formation shows many shortcomings in its selectivity and exclusiveness. To be quite clear: the organizers have omitted to invite or to associate with their initiative human rights activists who continue to believe that it is essential to claim Justice, in particular towards those who invoke political Islam, as well as anyone - rightly or wrongly - suspected of being close to them. Even though the majority of the victims of the 'bloody years' were activists or sympathisers of the Islamic Salvation Front (FIS).
Yet, in January 1995, the latter's representatives were party to the 'Sant'Egidio platform' adopted in Rome by all Algerian political opposition organisations who shared the 'rejection of violence for attaining or holding on to power', the 'respect of political alternation via voting rights for all' and the 'consecration of the multiparty system', and proposing to the authorities 'negotiations' in view of bringing the 'civil war' to an end. Twelve years after the rejection of this programme - by the authorities that are still currently in place -, the implementation of which would indeed have allowed to save tens of thousands of victims, how would one be able to believe today that the eviction of those who invoke political Islam and assert their will to fight for universal human rights, may lead to 'real and sustainable peace'?
The confusion prevailing around the terms 'Islamist', 'terrorism/terrorists', 'amnesty', 'disappearances', 'mass killings', 'patriot' or 'repentant' produces from the start a biased perception of the Algerian situation and tends to legitimate and perpetuate the official version of the facts. The search for truth does not only pass through the identification of the people behind the crimes and their authors, but also through adequate definitions and terminology specific to the Algerian experience. Without such an in-depth effort, all solutions are to remain partial and superficial - as in particular the Argentina experience has shown.
Such an approach supposes that impartial and rigorous investigations are conducted on human rights violations committed since 1992, no matter who is responsible. Yet, in spite of many efforts - including those of the Brussels seminar participants -, one has to admit that even the important amount of information available to date has not been sufficient to crack the wall of disinformation and preconceived ideas erected by the authorities. However, a breach in such a wall is the only condition for a genuine consensus between all those in Algeria who share the objective of 'true and sustainable peace'. Such a state of affairs clearly shows that the conclusions of the Brussels seminar are, at the very least, preliminary and that a greater common effort remains necessary in order to claim the establishment of a 'Commission for Truth, Justice and Reconciliation'.
For Algeria-Watch, were transitional justice to intervene, it would only lead to satisfactory results for a majority of victims if it was implemented during a genuine transitional period. And after negotiations between independent and honest stakeholders, of different allegiances, with the aim to find together an issue to the crisis that is viable, sustainable and acceptable by the largest number possible.