Egypt: Retry or Free 12,000 After Unfair Military Trials

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(New York) – Since it took over patrolling the streets from the police on January 28, 2011, Egypt’s military has arrested almost 12,000 civilians and brought them before military tribunals, Human Rights Watch said today. This is more than the total number of civilians who faced military trials during the 30-year rule of Hosni Mubarak and undermines Egypt’s move from dictatorship to democratic rule, Human Rights Watch said.

“Nearly 12,000 prosecutions since February is astounding and shows how Egypt’s military rulers are undermining the transition to democracy,” said Joe Stork, deputy Middle East and North Africa director at Human Rights Watch. “The military can end these trials today – all it takes is one order to end this travesty of justice.”

In a September 5 news conference Gen. Adel Morsy of the ruling Supreme Council of the Armed Forces (SCAF) said that between January 28 and August 29, military tribunals tried 11,879 civilians. The tribunals convicted 8,071, including 1,836 suspended sentences; a further 1,225 convictions are awaiting ratification by the military.

Under the Mubarak government, such trials were reserved for high-profile political cases, such as the2008 conviction of the former deputy guide of the Muslim Brotherhood, Khairat al-Shatir, and 24 others; cases in which the defendants had been arrested in a military zone such as the Sinai; or bloggerswho criticized the military.

Human Rights Watch strongly opposes any trials of civilians before military courts, where the proceedings do not protect basic due process rights and do not satisfy the requirements of independence and impartiality of courts of law. Defendants in Egyptian military courts usually do not have access to counsel of their own choosing and judges do not respect the rights of defense. Judges in the military justice system are military officers subject to a chain of command and therefore do not enjoy the independence to ignore instructions by superiors.

Over the past months there has been growing consensus among all political parties and activist groups in Egypt against the military trial of civilians.

Morsy also said the referral of civilians to trial before military courts for violations of the Egyptian penal code would end as soon as the state of emergency is lifted. SCAF generals previously have said that the Code of Military Justice gives them the jurisdictional grounds to bring civilians before tribunals. This law provides overly broad jurisdiction to the military justice system in articles 5-6, which allow for civilians to be brought before military tribunals for crimes under the penal code if the crime takes place in an area controlled by the military or if one of the parties involved is a military officer. Since taking over the government, the military appears to consider the whole country “controlled by the military” and therefore everyone is potentially subject to military trials.

“The military should end the state of emergency immediately, but even that will not be enough to end military trials of civilians,” Stork said. “The Egyptian authorities should amend the Code of Military Justice in line with its obligations under international law to limit military jurisdiction to military offenses.”

International human rights bodies over the last 15 years have determined that trials of civilians before military tribunals violate the due process guarantees in article 14 of the International Covenant on Civil and Political Rights (ICCPR), which affirms that everyone has the right to be tried by a competent, independent, and impartial tribunal. Egyptian human rights lawyers have filed two cases before Egypt’s administrative court, the Council of State, appealing against SCAF’s administrative decision to bring civilians before military tribunals, which the court will hear in September.

Military courts have acquitted only 795 of the nearly 12,000 cases they have tried, a conviction rate of 93 percent, Human Rights Watch said.

In July, the SCAF issued statement number 68 in which it announced that it was limiting the use of military tribunals to three categories of crimes: “thuggery,” rape, and assault against police officers, a limitation of little practical relevance since these categories cover the vast majority of cases before tribunals over the past months. The vast majority of those sentenced by military tribunals are not political cases but involve individuals arrested in connection with alleged regular criminal activities. Those sentenced included a 16-year-old child, Islam Harby Raga, currently in Tora prison serving a seven-year sentence after a military trial in February in which he was convicted on charges of assaulting a public official.

One of the political prisoners who remain in detention after an unfair military trial is protester Amr al-Beheiry. Military officers arrested al-Beheiry, along with at least eight others, in the early hours of February 26 after forcibly evicting protesters from Tahrir Square, beat him, and brought him before a military prosecutor. Al-Beheiry’s family learned of his arrest from a newspaper and found out that al-Beheiry had been tried and sentenced on February 28 in the absence of his lawyer. Al-Beheiry is serving a five-year sentence in Wadi Gedid prison, 400 miles from his home, rather than in Tora prison outside Cairo. The military appeals court has scheduled his appeal for May 1, 2012.

Another protester, 21-year-old Mu’aty Abu Arab remains imprisoned in Wadi Gedid prison. Military officers arrested him on February 3 in Tahrir Square. They took him to the military prison and brought him before a military court, which sentenced him to five years on charges of breaking curfew and “thuggery.” His lawyer, Adel Ramadan, told Human Rights Watch that his appeal had been scheduled for February 24, 2012.

“One of the basic due process protections is the right to an effective appeal,” Stork said. “Those wrongfully detained should not have to wait a year and a half before being able to appeal a patently unfair conviction.”

Blogger Maikel Nabil, currently on hunger strike, is serving a three-year prison sentence for “insulting the military establishment” and “spreading false information” – in fact, for peaceful expression of his views on his blog and on Facebook. Nabil’s lawyers have appealed his sentence and another military court will hear his appeal on November 1. On September 5, Morsy insisted that there were no cases regarding freedom of expression before the military courts, saying that Nabil was a case of “insulting the armed forces.”

In response to growing public calls for an end to military trials of civilians, the military has chosen instead to criticize the media for its coverage of the trials. In a news release on September 7, Morsy warned the media to stop commenting on military trials and spreading “false” information about proceedings. “We call upon all parties to pursue the legal route to appeal decisions and to directly submit complaints to the competent parties for those who have standing or their legal representatives instead of spreading rumors without basis,” he said. In response to criticism of the military, the military prosecutor has thus far summoned nine people on charges of “insulting the military” for questioning though so far he has not referred any of these cases to court, with the exception of Nabil.

In a speech on February 12, Gen. Mohsen Fangary, a member of the SCAF, declared that Egypt would abide by its international obligations under the treaties it had signed. Those international treaties include the International Covenant on Civil and Political Rights, which obligates states to protect and ensure the right to fair trial and freedom of expression.

The Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, presented before the former United Nations Human Rights Commission in 2005, states that “the jurisdiction of military tribunals must be restricted solely to specifically military offenses committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international law, of an international or internationalized criminal court.”

“The military cannot pick and choose which parts of international law it considers relevant or convenient,” said Stork. “By insisting on using military trials to try civilians the military is showing contempt for Egypt’s obligations under human rights law.”