ALGERIA: ALKARAMA RAISES THE ISSUE OF ILLEGAL LISTING OF PERSONS CONSIDERED "TERRORISTS" AT THE UN
Despite numerous calls by independent UN experts to revise its anti-terrorism legislation, which violates both domestic and international law, the Algerian authorities have unlawfully registered 16 people on "terrorist" lists.
In the absence of effective remedies against these listings, several of the individuals concerned decided to refer their situation to various special procedures mandate holders of the United Nations Human Rights Council to denounce the violation of their rights and fundamental freedoms.
As a recall, these lists had already been qualified in September 2021 as illegal by the independent human rights experts of the United Nations, both from the point of view of international law and Algerian law.
This is not the first time that UN bodies have reminded the Algerian authorities of their international obligations to respect the fundamental rights of Algerian citizens.
In 2018, the Human Rights Committee had already expressed its concerns "defines the crime of terrorism in overly broad and vague terms that would allow for the prosecution of actions that might constitute exercise of the freedom of expression or peaceful assembly”.
It was also concerned "by claims of inappropriate use of counterterrorism measures against human rights defenders and journalists", calling on the Algerian authorities to ensure that these provisions are no longer used to violate human rights.
This is not the first time that the Algerian authorities have used the "terrorist" lists against political opponents.
Indeed, in a letter dated 16 April 2003, the Algerian government, through its permanent representative to the United Nations in New York, Abdellah Baali, asked the UN Security Council to include several Algerian political activists on the Al Qaeda lists; the Security Council then rejected these claims on the grounds that the information given by the Algerian authorities was "unreliable".
MISUSE OF ANTI-TERRORISM LAWS TO REPRESS CIVIL SOCIETY
Alkarama recalled in its complaint that the anti-terrorism provisions contained in the Algerian Penal Code are in flagrant violation of Algeria's international obligations, rendering any listing of entities or individuals void under international law.
In September 2021, Alkarama submitted to several UN experts, including the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, an analysis of the various decrees issued by the regime in Algiers to criminalize the peaceful demands of the Hirak.
On 27 December 2021, the Special Rapporteur sent a communication to the authorities, co-signed by several other international experts, calling on the government to repeal the legislation adopted since the beginning of the Hirak.
Among the provisions targeted, those of Ordinance No. 21-08 and Law No. 20-06 of 22 April 2020 amending the Penal Code, which have been widely criticized, in particular because they "significantly infringe on human rights and fundamental freedoms, including the right to freedom of expression association and peaceful assembly, the right to security of the person and to a fair trial, as established in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights (ICCPR), ratified by Algeria on 12 September 1989.”
As a reminder, international law and practice indicate that in order to be qualified as "terrorist" an act must necessarily be violent and directed against civilians, with the intention of causing death or serious injury, in order to compel a government to do or not to do certain things.
However, in order to repress civil society, the Algerian authorities have enacted a particularly broad definition of terrorism, combining so-called "subversive" acts with "terrorist" acts and omitting to specify that these acts must be violent and aimed at spreading terror among civilians.
Thus, the definition adopted allows the authorities to prosecute people under anti-terrorism legislation for non-violent acts such as obstructing traffic during demonstrations or occupying public squares.
It is on the basis of these texts that, since 2019, an increasing number of activists, journalists and human rights defenders active in the Hirak have been prosecuted on terrorism charges.
LISTS DESCRIBED AS ILLEGAL AND ARBITRARY BY UN EXPERTS
On 18 May 2021, the High Security Council (HSC) announced in a press release issued by the state agency, Algeria Presse Service (APS), that it considered the two peaceful political opposition movements RACHAD and MAK (Movement for the Self-Determination of Kabylia) as "terrorists", in violation of the principle of legality.
Indeed, the HSC is an unelected consultative body composed of members of the military-majority executive and charged by the Constitution with preserving the "security of the state". Among its main powers, the HSC can establish a state of siege and a state of emergency without any democratic oversight, allowing it to designate individuals and groups as terrorists without any judicial review.
In its communication, Alkarama recalled that the UN experts had already stressed that "all members of the Council (HCS) are subject to the executive power and come, for the most part, from the security organs of the State”. Thus, these procedures could, according to them, "give rise to abuses and allow arbitrary decisions to be taken".
Thus, it was on the basis of a press release ordered by the HCS that many peaceful activists, journalists, lawyers and human rights defenders were prosecuted and imprisoned because of their real or supposed membership in one of the two movements.
In an attempt to give a semblance of legality to their approach, the Algiers authorities adopted the regulatory texts governing registration procedures, in particular Executive Decree No. 21-384 of 7 October 2021, which establishes a commission in charge of these procedures.
It is therefore in these conditions that Alkarama asked the experts to recall that the inscriptions of the complainants in these "terrorist lists" should be considered null and void under international law and to enjoin the Algerian authorities to repeal this legislation.
A SERIOUS FORM OF REPRISAL AGAINST PEACEFUL CRITICISM OF THE REGIME
In their complaint to the Special Rapporteur, the petitioners stated that these lists were based on Article 87bis of the Penal Code, which defines "terrorism" as "working or inciting, by any means whatsoever, to gain access to power or to change the system of governance through unconstitutional means".
In their communication of September 2021, the UN independent experts had stressed that the inclusion of the phrase "non-constitutional means" in the definition of terrorism undermines the exercise of the freedoms of association and peaceful assembly, particularly "given the current socio-political context in Algeria".
Indeed, the experts expressed concern that this expression "could effectively be used against non-violent activists and demonstrators seeking to advance their movement or demands through channels other than those proposed by the institutional framework established by the authorities" and that thus "any criticism or opposition to the system of governance as established by the 2020 Constitution" could be prosecuted as a terrorist act.
Thus, in their complaint, the applicants argued that, in practice, and given that the main demand of the popular Hirak movement is precisely a change in the nature of governance from a military state to a civilian and democratic state, all Algerians who publicly call for a "civilian and non-military state" (the Hirak's credo) can be prosecuted under this article for terrorism.
Similarly, the listed RACHAD members stressed that the mere fact that the movement's Charter states that its main mission is to work, according to the principles of non-violence, for a radical change "in the conception of power in Algeria", is enough for the Algerian authorities to consider the movement as "terrorist".
However, as the former Special Rapporteur on the promotion and protection of human rights while countering terrorism, Martin Scheinin, pointed out in his report on "the impact of the war on terror on freedom of association and peaceful assembly":
"The fact that an association calls for achieving through peaceful means ends that are contrary to the interest of the State is not sufficient to characterize an association as terrorist.”
“Basically, the qualification of any desire for popular change as a form of "terrorism" amounts to criminalizing the exercise of the most fundamental right of a people: that of self-determination”, said Rachid Mesli, Legal Director of Alkarama.
“Without respect for this right, which is at the very foundation of Algeria's collective history, no public freedom or fundamental right can be fully respected and exercised. The people will not be able to dispose of itself, nor the individuals who compose it to fully enjoy their rights, as long as their legitimate and peaceful demands for a change in governance towards greater accountability are considered as terrorist crimes.”
RECOURSE TO INTERNATIONAL PROCEDURES IN REACTION TO A SERIOUS DETERIORATION OF THE HUMAN RIGHTS SITUATION IN ALGERIA
In response to these serious attacks on the rights and fundamental freedoms of Algerian citizens exiled abroad, Alkarama called on UN experts to address the issue of the internationalization of repression by diverting the purpose of mutual assistance mechanisms in the fight against terrorism.
Alkarama stressed that these lists serve the Algiers regime as alternative sentences produced exclusively by a security body outside of any judicial procedure, particularly against opponents who are abroad.
The adoption of such measures can also be explained in light of INTERPOL's recent decisions to refuse to follow up on requests by the Algiers authorities to issue Red Notices against the listed individuals and the refusal of the judicial authorities of several States to extradite them due to the totally unfounded nature of the requests.
While some States such as France, Italy and Switzerland have refused to follow up on Algeria's extradition requests against peaceful opponents, considering that these requests were unjustified, other States cooperate directly with the Algerian authorities in their repressive policy.
Thus, Alkarama expressed its deep concern at the actions of the Spanish government which, while claiming to be respectful of fundamental rights, has cooperated with the authorities in Algiers in this serious form of persecution by illegally handing over Mohamed Abdellah and Benhalima Mohamed Azzouz to the authorities in Algiers.
Alkarama recalled that international cooperation against terrorism should in no way be used as a pretext to internationalize the repression of political opponents or human rights defenders.
Finally, Alkarama also decided to refer this issue to the United Nations bodies specialized in cooperation between States in counter-terrorism, such as the United Nations Organization against Drugs and Crime.