(Beirut) – An October 27 decree by President Abdel Fattah al-Sisi of Egypt vastly extended the reach of the country’s military courts and risks militarizing the prosecution of protesters and other government opponents.
The new law, decreed by al-Sisi in the absence of a parliament, places all “public and vital facilities” under military jurisdiction for the next two years and directs state prosecutors to refer any crimes at those places to their military counterparts, paving the way for further military trials of civilians. Egypt’s military courts, which lack even the shaky due process guarantees provided by regular courts, have tried more than 11,000 civilians since the 2011 uprising.
“This law represents another nail in the coffin of justice in Egypt,” said Sarah Leah Whitson, Middle East and North Africa director. “Its absurdly broad provisions mean that many more civilians who engage in protests can now expect to face trial before uniformed judges subject to the orders of their military superiors.”
On November 16, a Cairo criminal court referred five al-Azhar University students to military court on charges related to repeated protests that have broken out at the university against al-Sisi’s government. The students are charged with joining a terrorist organization, displaying force, threatening to use violence, possession of Molotov cocktails, and vandalism, according to the Aswat Masriya news service. The criminal court reportedly ruled that it lacked jurisdiction in the case.
Al-Sisi issued the decree three days after an attack in the Sinai Peninsula killed dozens of soldiers, the deadliest strike yet in an insurgency that has grown since the army ousted Egypt’s democratically elected president, Mohamed Morsy, in July 2013.
The new decree, Law 136 of 2014 for the Securing and Protection of Public and Vital Facilities, states that the armed forces “shall offer assistance to the police and fully coordinate with them in securing and protecting public and vital facilities,” including electricity stations, gas pipelines, oil wells, railroads, road networks, bridges, and any similar state-owned property.
Military judges have presided over trials of civilians in Egypt for decades, despite efforts by activists and some politicians to eliminate the practice. In the months following the 2011 uprising, for example, Egypt’s military courts tried almost 12,000 civilians on an array of regular criminal charges. But the new law greatly expands the jurisdiction of military courts, giving them their widest legal authority since the birth of Egypt’s modern republic in 1952. Before al-Sisi’s decree, Egypt’s constitution and code of military justice theoretically limited military prosecutions to cases that directly involved the armed forces or their property, though the country’s 31-year state of emergency, which expired in 2012, allowed the president to refer civilians to military courts.
Egypt’s military appears intent on interpreting the new law broadly. Interviewed on the CBC television channel on November 1, General Medhat Ghozy, who heads the Military Judiciary Authority, said that military jurisdiction now extends over any building or property that provides a “general service” or is state owned.
“If there’s a public facility, or a vital one, when it’s assaulted, who’s the attacker?” Ghozy said. “[It doesn’t matter] if it’s a woman, or a man, or a teacher, or a student, or a teenager, or a child … the law is a general, abstract rule. We can’t say now: these are universities, these are factories, these are electricity stations.”
Since al-Sisi – a former defense minister and army chief – oversaw the forcible removal and imprisonment of Morsy in the wake of mass protests in July 2013, military courts have tried at least 140 civilians, according to the Cairo Institute for Human Rights Studies, including three children and four journalists. Most of the accused have faced charges of assaulting military personnel or equipment.
On October 21, a military court imposed death sentences for seven men and life sentences for two others for their involvement in three violent incidents in March 2014 that left nine soldiers dead. Authorities alleged that the men belonged to Ansar Beit al-Maqdis, Egypt’s most prominent insurgent group. On November 10, the group pledged allegiance to the Syria-based organization Islamic State, also known as ISIS.
Police claim to have arrested the nine men in a March 19 raid on an abandoned warehouse in the Qalyubia governorate, north of Cairo, and to have found evidence of explosives and weapons used in the lethal attacks on soldiers earlier that month. But the trial, conducted before a panel of generals at the Hikestep military base northeast of Cairo, lacked basic due process guarantees, putting its fairness in question.
Ahmed Helmy, a lawyer for four of the men, told Human Rights Watch that families of three defendants first sought his help in January, two months before the police say they arrested the men, suggesting that the authorities’ account of the raid was inaccurate.
“These three defendants simply disappeared separately in November and December 2013, months before the events they are charged with – they were kept in Azouli prison,” Helmy said, referring to a secret military facility inside al-Galaa army base in the Suez Canal city of Ismailia, which the authorities have used to hold up to hundreds of civilian detainees, according to human rights groups and media reports. “We filed a complaint to the public prosecutor but the authorities kept denying that the three guys were in custody.”
Helmy said that the authorities would not allow him to visit his clients in custody before the trial and that he first met them at the initial court hearing in June.
A brother of Hani Amer, one of the defendants, told Human Rights Watch that Amer disappeared on December 16, 2013, after visiting the district director’s office in Ismailia to obtain a permit for his information technology company. The brother said that witnesses told the family that men in civilian clothes had detained Amer and his business partner, Ahmed Suleiman, as well as the district director. The director, whom authorities released hours later, eventually told the family that police had taken Amer to the Galaa base.
Amer later told his brother that authorities had moved him in March from Azouli prison to the high-security Scorpion facility inside Tora Prison in Cairo. When his brother visited him there on August 10, Amer showed no obvious signs of injury, although Suleiman, the business partner, had told the brother that Amer’s shoulders had been dislocated by torture when he was held in Azouli prison months earlier.
Another defendant appeared at the military trial in a wheelchair. His father told Human Rights Watch that his son had disappeared on March 16 or 17, 2014, following which the father filed complaints with the Interior Ministry without success. Later, he said, a man who refused to disclose his identify visited the father’s home and told him that authorities were holding his son in Tora Prison.
When the father eventually obtained permission to visit his son, for only a few minutes, he found his son using crutches.
“He said that they tortured him,” the father said. “His left knee was completely destroyed and his left femur bone was broken. I asked him directly, ‘Did you meet with a prosecutor?’ He said he couldn’t know because he was blindfolded during most of the interrogations. All the confessions were dictated by officers under torture.”
Helmy, the lawyer, told Human Rights Watch that even though the men can appeal their sentences, the authorities have made the defendants wear the orange jumpsuits worn by prisoners who have received final verdicts, apparently to “pressure them psychologically.” He has tried to convince the men to lodge appeals, but so far they have declined.
The father of the other said he had also urged his son to appeal, but that his son responded: “You don’t hire a room from someone who stole your house.”
The nine men also face trial before a regular criminal court as part of a group of more than 200 defendants accused of belonging to Ansar Beit al-Maqdis.
Egypt’s military courts operate under the authority of the Defense Ministry, not the civilian judicial authorities. They typically deny defendants rights accorded by civilian courts, including the right to be informed of the charges against them, and the rights to access a lawyer and to be brought promptly before a judge following arrest.
In April, a military court sentenced a social media manager for the online news website Rassd to one year in prison for helping to leak a tape of remarks by al-Sisi during his time as defense minister. The court acquitted one Rassd employee and sentenced two others who remain at large and an army conscript to three-year prison terms. In May and September, military courts handed down one-year sentences against 10 defendants – mostly Muslim Brotherhood members or allied politicians – for attempting to cross into Sudan illegally. In Suez, a military court has repeatedly postponed the trial of 20 civilians arrested in August 2013 and charged with attacking government buildings.
The use of military courts to try civilians violates the 1981 African Charter on Human and Peoples’ Rights, which Egypt’s parliament ratified in 1984. The African human rights commission Principles and Guidelines on the Right to a Fair Trial and Legal Assistance explicitly forbid military trials of civilians in all circumstances.
Al-Sisi’s law closely resembles a pair of decrees that Justice Minister Adel Abdel Hamid and Egypt’s then-ruling military council issued in June 2012, just before Morsy’s election and immediately after the country’s long-running state of emergency expired. Abdel Hamid’s decree empowered military police and intelligence officers to arrest civilians, while the military council’s decree empowered the president to call in soldiers “to share in law enforcement duties and the protection of public institutions.”
Article 204 of Egypt’s constitution, drafted and approved by popular referendum in January during the interim government that followed Morsy’s removal, specifies a range of crimes for which civilians can be tried in military courts, including assaults on military personnel or equipment, or crimes that involve military factories, funds, secrets, or documents. It is largely the same as Article 198 of the previous constitution, passed during the Morsy administration, which also allowed military courts to put civilians on trial over the protest of activists and some politicians.
“This new decree is pernicious and contrary to basic standards of justice,” Whitson said. “Egypt’s authorities should annul all the military court verdicts against civilians handed down since the new government took power, and President al-Sisi needs to act quickly to amend his decree.”