The clash between Algeria and the United Nations Human Rights Committee (hereinafter “HRC”) regarding the former’s domestic law titled Ordinance No. 06-01 enacting the Charter for Peace and National Reconciliation is becoming more and more acute as the violation decisions by the HRC concerning Ordinance No 06-01 are piling up. In these cases, Algeria insists on a rather crude argument of the primacy of the Ordinance as “Domestic Law” over the International Covenant on Civil and Political Rights (hereinafter the ‘ICCPR’). The HRC disagrees. The HRC has also become increasingly more vocal on its insistence concerning the necessity of the amendment of the Ordinance. Algeria, on the other hand, has presented the Ordinance as evidence of its commitment to human rights as part of its Human Rights Council bid.

In this blog post, I will first set out Algeria’s engagement with the UN treaties, and point to the rising repetitive individual communications from Algeria before the HRC concerning the Charter for Peace and National Reconciliation. I will then analyze the main points of disagreement between Algeria and the HRC as to the implementation of the Ordinance No 06-01. Next, I will draw attention to the disagreements amongst the Committee members to pinpoint the unsettled jurisprudential areas regarding the implementation of the ICCPR and its Second Optional Protocol in the remedial domain. Lastly, I will extrapolate on possible implications of preservation of the Ordinance as it stands, against the backdrop of Algeria’s Human Rights Council membership and its apathy towards the Views of the HRC.

Algeria and the UN Human Rights Treaties

Algeria is party to all core human rights treaties except the Convention for the Protection of All Persons from Enforced Disappearance. It has been less ambitious regarding accepting individual complaint mechanisms. It has only accepted right to individual petition before the Committee Against Torture (hereinafter “CAT”), the HRC and the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter “CERD”), all on 12 September 1989. As of September 2016, there have been forty Algerian communications scrutinized by the HRC whereas only four before the CAT and none before the CERD. In all of the communications before the HRC (except for two inadmissibility decisions in Martinez v. Algeria and Anton v. Algeria) the HRC found that Algeria violated the ICCPR.

Algeria’s Record before the HRC: 38 violation decisions

Except for three, all Algerian communications before the HRC are related to the events that unfolded during the Algerian civil war of 1990s. More specifically, they concern arbitrary arrests, enforced disappearances, ill treatment, torture or summary executions caused by Algerian armed forces and security services during that era.

In this context, one of the most repeated and highly contested issues is Ordinance No. 06-01 enacting the Charter for Peace and National Reconciliation (hereinafter “the Charter”). Algeria invoked the Ordinance as a justification for the alleged violation in twenty-eight communications, that is all communications after the enactment of the Charter. The Ordinance No. 06-01 is coined by the HRC in its concluding observations as “(seemingly) promoting impunity and infring(ing) the right to an effective remedy.” Alarmingly, the Ordinance foresees punishment of any person who files a complaint against Algerian defense and security forces pertaining to actions covered by its Article 45. Thus, most of the complainants before HRC argued that the Charter “places all domestic remedies beyond reach” (See e.g. Saïd Bousseloub v. Algeria).

Even though the Committee repeatedly dismisses the defense of the Charter  (it has done so in all communications where it was invoked), Algeria insists on appealing to the Charter and the socio-political and security environment that prevailed in the country between 1993 and 1998 to justify the restrictions or violations of rights under the Covenant. In each communication, in a rather “copy-paste manner”, Algeria defends the Charter as it “reflects a desire (of the public since it was accepted through a referendum) to avoid confrontation in the courts, media outpourings and political score-settling”.  Algeria also argues that the rights to an effective remedy of the victims of the “national tragedy” are protected as they can sue for damages by filing a complaint with the investigating judge. In response, the Committee maintains that the State party cannot raise the Charter against persons who invoke provisions of the Covenant or who have submitted or may submit communications to the Committee ( See Benaziza v. Algeria, Mihoubi v. Algeria, Berzig v. Algeria, Kroumi v. Algeria).

The arguments of Algeria and the Committee’s responses concerning the Charter are repeated in every single View since the adoption of Ordinance No. 06-01. After rejecting the national tragedy and domestic law arguments, the Committee constantly recommends Algeria to amend the Charter as its Article 45 is incompatible with the provisions of the Covenant and emphasizes that suing for damages for such serious offences cannot be a substitute for the charges that a public prosecutor would bring against the perpetrators.

Strategically speaking, not presenting any observations before the HRC is highly disadvantageous for any State party in proceedings before the HRC as the HRC then decides solely based on available information.  Despite this, Algeria keeps its silence on the merits of the cases concerning the Charter. It provides the same narrative for each communication, which is to challenge the admissibility or bluntly deny the allegations of the complainant.

It is not clear whether Algeria’s “full-denial” approach is caused by the lack of any evidence to refute the complainants’ story or its insistence to convince the Committee to take a “comprehensive approach”. Interestingly, Algeria once stated that it will not address the merits of the communications before the HRC until the issue of their admissibility has been settled. Indeed, it argued that joint evaluation of the merits and admissibility of the communications “seriously prejudices the proper consideration of the communications in terms of both their general nature and their intrinsic particularities” (Kroumi v. Algeria). However, regardless of Algeria’s justification for non-compliance, since the complainants’ story do not face rigorous scrutiny by the Committee in the absence of the State party’s refutation, the HRC always finds a violation of one or more rights under the Covenant.

The Algerian case law and the internal Disagreements within the HRC

There are two noteworthy instances pertaining to the Algerian communications, revealing divergence of opinions amongst HRC members about how to address the Charter and its consequences.

Remedial Discretion

The first of these is the scope of the remedial discretion of the HRC. This disagreement surfaced in  Bariza Zaier v Algeria, where the complainant’s counsel requested the HRC to order Algeria to issue an official apology to victims of human rights violations. The HRC did rejected the counsel’s request for a formal apology and opted to order Algeria merely to provide “appropriate satisfaction for the author and her family.” Nonetheless, a member of the Committee, Mr. Gerald L. Neuman, took this opportunity to express his dissent pertaining to the Committee’s General Comment No. 31 in which the Committee stated that, in appropriate situations, reparation can involve measures of satisfaction, such as public apologies and memorials. Mr. Neuman argued that the Committee would not be justified ordering such measures as “The Human Rights Committee is not the Inter-American Court of Human Rights, and should not try to be.” (Concurring Opinion, Bariza Zaier v Algeria)

Indeed, no provision in ICCPR provides an express basis for the HRC to indicate which remedies should be used. However, the Committee gradually adopted remedy specification approach and blurred the lines of its remedial power. Put differently, giving specific indications on how to remedy the violation (such as asking the state party to pay compensation, to review the legislation in question, or to conduct a thorough and effective investigation into the complainants’ allegations), the HRC slowly enlarged its remedial discretion. In fact, despite the absence of an express provision, even Mr. Neuman accepts that the Committee is entitled to order the investigation of the violation and bringing the perpetrators to justice as they are “always necessary to an effective remedy for enforced disappearance”.

Regarding such specific remedies, the Committee relies on Article 2(3) of the ICCPR for the individual and Article 2 of the ICCPR as a whole for the general measures whereas it is not clear from where the Committee derives its authority to pick the appropriate form of satisfaction for a State party. Indeed, Mr. Neuman argues that the HRC does not hold the power either to “order a particular measure of satisfaction” or select a “soft preference among the available options”. Nonetheless, in Franck Kitenge Baruani v. Democratic Republic of the Congo, the Committee did ordered DRC to render a formal public apology to the author and his family for the violations suffered.

Notably, Baruani decision was rendered prior to Mr. Neuman’s dissent and the Committee did not grant such remedy after its member’s vociferous criticism. Yet, in its latest session (i.e. nearly two years after Mr. Neuman’s dissenting opinion), the HRC still referred to General Comment No. 31 by stating that:

Redress could take the form of restitution, rehabilitation, satisfaction, public excuse or apology, testimony, guarantees of non-repetition, changes of laws and practices, and bringing perpetrators to court.

All these show that the extensive remedial power referred in the General Comment no. 31 is hitherto valid for the majority of the Committee. Perhaps until we see Mr. Fabián Salvioli’s acclaimed report on specific remedies, we will not completely understand to what extent the HRC has taken into account Mr. Neuman’s criticism for the current remedy specification trend.

Notwithstanding the terms of Ordinance No. 06-01…

The second noteworthy internal discussion among the HRC members relates to the Committee’s use of the word “notwithstanding”. At the end of many HRC Views for Algerian communication, there is a passage that reads as

Notwithstanding the terms of Ordinance No. 06-01, the State party should also ensure that it does not impede enjoyment of the right to an effective remedy for crimes such as torture, extrajudicial killings and enforced disappearances.

Mr. Fabián Salvioli, joined by Mr. Cornelis Flinterman in their concurring opinion for Berzig v. Algeria interpreted this passage as the Committee’s “indirect request” to the Algerian judicial branch to disregard the provisions of the Ordinance preventing investigations of acts concerning serious violations of human rights. However, much to the dissatisfaction of Mr. Salvioli, the Committee’s use of the word “notwithstanding” does not (and should not) go beyond highlighting the ineffectiveness of the “domestic law argument” and definitely does not include a request to disregard the domestic law for two reasons.

First of all, despite its use of the word “notwithstanding”, the Committee never endeavored to add the connotation that Mr. Salvioli sought. The only place where we see this “request” explicitly is Mr. Salvioli and Mr. Flinterman’s dissent and even after their dissent, the Committee’s Views never included a blunt suggestion to disregard the Ordinance. Secondly, the Committee in fact does not have the authority to order a State party to disregard its domestic law – at least not under the current sovereignty-centric international law system that we have.  Therefore, it appears that by saying “notwithstanding the terms of Ordinance No. 06-01” the Committee merely states that Algeria’s domestic law does not and cannot justify its violation of rights under the Covenant.

Algeria’s Future before HRC

On 12 November 2013, Algeria was elected to become a member of the Human Rights Council by the UN General Assembly. Interestingly, in its aide-mémoire, the Charter was listed as part of Algeria’s contributions and commitments to the promotion and protection of human rights. However, given the fact that HRC raised its utmost concern regarding the Charter as early as 2007, Algeria’s inclusion of the Charter as part of its endeavor to promote and protect human rights in 2013 is rather startling, and indicates apathy towards the HRC Views by Algeria.

As apparent in Algeria’s observations in the aforementioned Views, Algeria’s membership to the Human Rights Council (which will expire in 2016) seem not to change its apathy towards HRC’s criticisms. Despite the gravity of the violations and the seriousness of the remedies recommended by the HRC, its constant failure to tackle the problem created by the Charter makes Algeria one of the most condemned State parties by the HRC.

As Oxford International Human Rights Law reporters when the fact patterns and the Views of the UN Treaty Committees regarding the same country are nearly identical we prepare a “No Need to Report” (NNR) headnote to signify the similarity. If the current trend continues (and there is no evidence suggesting otherwise) Algeria might have the biggest pile of NNR headnotes and “violation decisions” among the States parties which is highly unsuitable for a member of the Human Rights Council.