World courts must hold Egyptian rulers accountable

Human rights lawyers have the principle of universal jurisdiction to prosecute international crimes. The people in control of Egypt need to be accountable to the law

By Michael Mansfield and Tayab Ali  /  The Guardian

Sun, Aug 18, 2013 - Page 9

Just over a year ago, Egypt threw off the shackles of its military dictatorship and took on the mantle of a civil democracy becoming, for a short period, the torchbearer of liberty and equality throughout the Arab world. On June 24 last year, Mohamed Morsi of the Muslim Brotherhood’s Freedom and Justice party won the country’s first contested election. It was the first time that an Egyptian president had been freely elected from outside of the military establishment.

By July 3 this year, Morsi had been ousted in a coup d’etat. The uprising against the previous Mubarak regime resulted in the free and fair election of Morsi — a new dawn of democracy and human rights for Egypt. The current spate of protests have seen the rapid destruction of that promise and have become an excuse for the military to regain control.

The immediate aftermath of the July coup reminds us what Egypt is without its democracy and that cannot have been what the many who were angry at President Morsi’s government had in mind when they chose (and were allowed) to vocalize their discontent in street protests.

Everyone in Egypt should now be concerned about the legality and consequences of the military overturning its first democratically elected government. Whatever the justification, disenchantment with a democratically elected leader does not legitimize the use of force and should never be used to remove a democratically elected government.

We can see where Egypt has descended to in the aftermath of the coup. The new military-installed regime does not appear to be interested in safeguarding Egypt’s democracy. The hallmarks of a democratic state have vanished almost immediately. Morsi has been detained in a secret location along with much of his administration. Dubious and historic criminal charges have been leveled against them. So far the detainees have not had access to their families or legal teams. How they are being treated is anyone’s guess.

Many of Morsi’s supporters have gathered in various parts of the country in order to peacefully protest against the military intervention. As tensions escalated the military responded to the civilian protests in an all-too-predictable manner. On July 8, 51 people were killed when lethal force was used on protesters gathered outside an officers’ club believed to be where Morsi was detained. There was greater violence on July 27 when 74 people were reported by advocacy group Human Rights Watch to have been killed, many shot in the head and chest.

By July 31, Amnesty International was reporting that the Egyptian junta’s cabinet had declared, in a televised statement, that pro-Morsi sit-ins in greater Cairo were to be considered a “threat to national security.”

There are worldwide concerns about the escalation of violence with non-governmental organizations (NGO) and governments urging the Egyptian military to show restraint.

Not long ago, autocrats could invoke the notion of “national sovereignty” and avoid any interference from the international community during the internal repression of their citizens. Following World War II, this cozy arrangement is no longer something that heads of state or military commanders can hide behind. It is rapidly becoming the case that leaders responsible for human rights violations will be pursued for their crimes by the International Criminal Court (ICC), NGOs and their own expatriates. No longer can they assume that they will live out their days without seeing the inside of a prison cell.

With the increase in violent unrest, it is time for the international community to take a good long look at itself. The mechanisms of redress need to be strengthened as there are certainly many difficulties in finding justice for the victims of atrocities. Traditional human rights mechanisms, such as the UN special rapporteur on the rights to freedom of peaceful assembly and of association, are notoriously slow and unable to impose any meaningful punishment.

Egypt is not subject to the jurisdiction of the African Court on Human and Peoples’ Rights (ACHPR) as it has not signed the appropriate protocol. This means that the ACHPR cannot adjudicate on the atrocities of the Egyptian military. Similarly, Egypt has not ratified the Rome Statute which established the ICC. As such, it is not subject to the ICC’s automatic jurisdiction.

The authors of the statue recognized that many regimes would try to avoid the court’s jurisdiction by not signing up, so they created another way for the ICC to be granted jurisdiction. Article 13(b) of the Rome Statute allows the ICC to exercise its jurisdiction where international crimes appear to have been committed in a situation that has been referred to it by the UN security council. The clearest precedent for such a referral is in the case of Sudanese President Omar al-Bashir, who was indicted by the ICC after his case was referred by the security council.

Democratic nations should recognize the great promise shown in the wake of the Arab Spring in Egypt. The fledgling democracy that is Egypt should not be allowed to escalate into another Syria or fall into a perpetual cycle of coup after coup like Pakistan. The British government should rise to its responsibilities and take a global leadership role on this issue as a permanent member of the security council.

It is absolutely vital that the ICC steps in where countries are unable or unwilling to bring to account those who use lethal force to undermine the rule of law and democracy. It is clear that the Egyptian military will not investigate, let alone bring to justice, those who have committed these atrocities. It should be made clear to the Egyptian military, police and coup government that they will not be allowed to betray the Egyptian people and continue these abhorrent practices.

Some human rights are so important that it is the responsibility of all states to protect them. This is encapsulated in the Latin maxim erga omnes meaning “toward all.” In July 2004 the International Court of Justice found, when deliberating on the legality of the wall in Palestine, that the right of self-determination was an erga omnes right. All states have an obligation to protect it.

While the international community contemplates the best word to use when describing the coup and how they should react to it, there are already preparations being made by others to ensure that those responsible for atrocities against Egyptian civilians can be brought to justice.

NGOs and human rights lawyers are organizing themselves to bring the prosecution of perpetrators of international crimes using the legal principle of universal jurisdiction. At its simplest this principle allows states to criminalize acts which are perpetrated beyond their territory, by people who are not their citizens, upon victims who have no connection to their country.

This is an important, cherished and long-established principle of international law and dates back to 19th-century efforts to combat piracy on the high seas. Numerous cases have been initiated in countries as diverse as the UK, the Netherlands and Senegal. As Human Rights Watch director Kenneth Roth said, universal jurisdiction “was also the concept that allowed Israel to try Adolf Eichmann in Jerusalem in 1961.”

Prosecuting military leaders using the principle of universal jurisdiction can be difficult, but let it be a warning to the military leadership in Egypt who might today be contemplating using unlawful violence against Egyptian citizens that the principle is gaining strength across the globe.

As recently as January, police officers from Britain’s specialist Metropolitan Police unit targeting suspected war criminals and human rights abusers arrested and charged Nepalese Colonel Kumar Lama for human rights abuses committed in Nepal. At the time of his arrest Colonel Lama was working as a UN peacekeeper in the Republic of South Sudan. He was visiting the UK for a Christmas vacation.

The Arab Spring has shown us that there is huge power in being globally connected as protesters. Those in positions of military power in Egypt will be well advised to remember this when they consider how effective lawyers have become in their work to end impunity.

Egypt has for too long been treated as a client state in the cause of geopolitical struggle. Its military has been central to this and has consistently acted with impunity. It is time for governments to lead the way in bringing this to an end. The situation in Egypt must be referred to the ICC by the security council. Failing that, human rights lawyers will be waiting in courts across the world for Egypt’s military, with evidence that they have committed heinous international crimes.