2. Amend the Code of Military Justice to End Military Trials of Civilians
Under the Mubarak government, trials of civilians before military courts were limited to very high-profile political cases. Since January 2011, however, the SCAF has expanded the use of military trials, using them to prosecute more than 12,000 civilians, for both ordinary criminal charges and political arrests of protesters or critics of the military. In addition, the SCAF has continued to detain some protesters. Military officers arbitrarily arrested protester Amr al-Beheiry, along with at least eight others, on February 26 after forcibly evicting protesters from Tahrir Square, and a military tribunal sentenced him to five years imprisonment. He remains in prison but on January 10, 2012 a military court of appeal ordered a retrial.
The Code of Military Justice (CMJ) allows the president to refer civilians to military tribunals under the exceptional powers granted to him by the Emergency Law. However, articles 5 and 6 of the CMJ also provide a much broader basis for referral, stating that military tribunals will have jurisdiction in cases where the crime takes place in an area controlled by the military, or if one of the parties involved is a military officer. This broad wording has allowed military authorities to refer individuals arrested anywhere in Egypt to military courts, since the military argues that it currently controls the entire country. Previously, only an individual arrested in a military zone, for example the Sinai, would come under the jurisdiction of military courts. In its 2008 report Sinai Perils, Human Rights Watch documented how this practice included thousands of sub-Saharan migrants who were arrested in Sinai in recent years and tried before military courts without due process.
Military courts in Egypt do not meet the requirements of independence since judges are subject to the orders of their superior military officers. Human rights lawyers representing defendants before military courts have on several occasions been able to informally obtain information about what ruling the military judge plans to issue before the trial has even started, especially in the case of the arrest of political activists. In the case of youth leader Asmaa Mahfouz, who was subpoenaed by the military prosecutor on charges of “insulting the military,” General Adel Morsy, head of the military justice system, issued a press release in which he stated that her comments had been inappropriate before her interrogation by the prosecutor had taken place.
Judges must be free from constraints, pressures, or orders imposed by other branches of government. According to the UN Basic Principles on the Independence of the Judiciary (UN Basic Principles), “[i]t is the duty of all governmental and other institutions to respect and observe the independence of the judiciary,” and the judiciary “shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.” Judicial decisions cannot be subject to change by authorities other than superior courts. The UN Basic Principles state that “[t]here shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision.”
In a democratic government, the penal military jurisdiction should have a restrictive and exceptional scope and limit their jurisdiction to the functions that laws assign to military forces. Consequently, civilians must be excluded from military jurisdiction, and only military personnel should be judged by military courts, but only for alleged crimes relating to their military function.
A clear doctrine has evolved in the jurisprudence of international human rights bodies over the last 15 years that the jurisdiction of military tribunals over civilians violates the due process guarantees protected in article 14 of the ICCPR. In its General Comment 32 interpreting article 14, the Human Rights Committee stated that:
Trials of civilians by military or special courts should be exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials.
During the 1990s the Human Rights Committee rejected the use of military tribunals to try civilians under any circumstances, or to try military personnel for infractions other than those committed in exercise of military functions. This jurisprudence includes the committee's "concluding observations" on the reports submitted by states party to the covenant, such as Algeria (1992), Colombia (1993), Russia (1994), Peru (1996), Poland (1999), and Cameroon (1999), as well as decisions on individual cases. In the case of Chile, the committee noted in its 1999 concluding observations:
[T]he Committee recommends that the law be amended so as to restrict the jurisdiction of the military courts to trials only of military personnel charged with offences of an exclusively military nature.
The wide jurisdiction of the military courts to deal with all the cases involving prosecution of military personnel also contributes to the impunity that such personnel enjoy from punishment for serious human rights violations.
- The SCAF should stop referring civilians to military tribunals;
- The Egyptian parliament should amend the Code of Military Justice to restrict the jurisdiction of military courts to trials of only military personnel charged with offences of an exclusively military nature;
- The Code of Military Justice should be amended to explicitly state that the public prosecutor shall be competent to investigate complaints regarding military abuse and that members of the military can be tried before civilian courts in cases of abuse and ill-treatment.
“Egypt: Retry or Free 12,000 After Unfair Military Trials,” Human Rights Watch news release, September 10, 2011, http://www.hrw.org/news/2011/09/10/egypt-retry-or-free-12000-after-unfair-military-trials.
Code of Military Justice, arts. 5, 6.
Human Rights Watch, Egypt: Sinai Perils, November 12, 2008.
“Egypt: Military Intensifies Clampdown on Freedom of Expression,” Human Rights Watch news release, August 17, 2011, http://www.hrw.org/news/2011/08/17/egypt-military-intensifies-clampdown-free-expression.
 UN Basic Principles on the Independence of the Judiciary, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, August 26 - September 6, 1985, http://www2.ohchr.org/english/law/indjudiciary.htm (accessed September 9, 2011).
Ibid., art. 4.
Human Rights Committee, General Comment No. 32, art. 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (2007).