Egypt’s campaign against homosexual conduct strikes at the most intimate relations between human beings. It embodies an extreme form of legally enforced inequality. It sets a dangerous precedent for arbitrary and discriminatory treatment. Its official defenders degrade the promises of legality enshrined in international covenants as well as in Egypt’s constitution, by implying that basic rights are subject to a popularity contest. It expands and deepens existing serious violations of the right to privacy; the rights to freedom from torture, arbitrary arrest and detention; and the rights to a fair trial and to liberties of association, assembly, and expression. As such it threatens the freedoms of all Egyptians.
That Egypt’s Law 10/1961 (the “debauchery” law) is meant, and used, to criminalize consensual sexual activity between adult males can no longer be questioned. That laws so written and enforced stand in breach of the right to privacy is an established principle of international human rights law. In addition, such laws also violate Egypt’s constitutional protections of the sanctity of homes and “the inviolability of the private life of citizens.”432
In the 1994 case of Nicholas Toonen v Australia, the U.N. Human Rights Committee, which monitors compliance with and adjudicates violations under the International Covenant on Civil and Political Rights (ICCPR), held that “sodomy laws” punishing consensual, adult homosexual conduct violate article 17 of the ICCPR, which protects the right to privacy. 433 It also held that they violate ICCPR protections against discrimination.
Egypt’s Constitutional Court has affirmed the importance of privacy protections:
Yet in the disputes over Law 10/1961, Egypt’s government has claimed that cultural and community values override this right with a complex of obligations to conform.
An emerging body of domestic jurisprudence in several countries addresses this. It articulates a conception of privacy as more than a negative right limiting state interference or a space defined by the absence of intrusion. This jurisprudence affirms that privacy is a sphere where people choose and construct their lives for themselves, enjoying precisely that intimacy and autonomy which are conditions for their full, mature, and independent participation in public life, community, and culture. This broad conception of privacy has been eloquently expressed in post-apartheid South Africa.
South Africa's Constitutional Court has held that “rights, like the right to privacy, are not based on a notion of the unencumbered self, but on the notion of what is necessary to have one’s autonomous identity . . . In the context of privacy this means that it is . . . the inner sanctum of the person such as his/her family life, sexual preference and home environment which is shielded from erosion by conflicting rights of the community.” In a major decision overturning “sodomy laws” in that country, the Constitutional Court found that
Justice Albie Sachs of the Constitutional Court asserted that privacy is inextricably bound to full and equal citizenship. In invalidating sodomy laws, he observed, the Constitutional Court affirmed a right to difference in private life which confirmed equal dignity in the public sphere.
In its decision in Toonen v Australia the U.N. Human Rights Committee also found laws criminalizing consensual sexual acts between adults of the same sex to violate protections against discrimination. Specifically, the Committee held that “the reference to ‘sex’ in articles 2, para. 1, and 26 is to be taken as including sexual orientation.” The Human Rights Committee has thus urged states to bar discrimination based on sexual orientation.
Achieving equality means eliminating stigma. The U.N. Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions has observed the relationship between sodomy laws, stigma, and violence:
In its review of Egypt in 2002, the Human Rights Committee criticized the “criminalization of some behaviors such as those characterized as 'debauchery' (articles 17 and 26 of the Covenant),” and urged Egypt to “refrain from penalizing private sexual relations between consenting adults.”441
Article 7 of the ICCPR states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This basic, non-derogable protection is violated when state agents beat, maltreat, and abuse people on the basis of their sexual orientation, or their consensual conduct with others of the same sex.
Protection against torture is needed for those whom stigma renders especially at risk. A lengthy recent statement by the U.N. Special Rapporteur on Torture to the General Assembly examines, and condemns, many of the causes and consequences of abuses detailed in this report:
In its review of Egypt in 2002, the U.N. Committee Against Torture voiced concern at “the reports received concerning ill-treatment inflicted on men because of their real or alleged homosexual inclinations, apparently encouraged by the lack of adequate clarity in penal legislation.” It called on Egypt to “remove all ambiguity in legislation which might underpin the persecution of individuals because of their sexual orientation.” 443
Forensic anal examinations of men suspected of homosexual conduct, conducted in carceral conditions, are abusive, degrading, and a form of torture. The Egyptian government is culpable for their continuation. Those doctors who participate in them violate international standards adopted by the medical profession.
The U.N. Committee Against Torture, in its 2002 review of Egypt, investigated the issue of forensic anal examinations and called on the government “to prevent all degrading treatment on the occasion of body searches.”444 In the case of men accused of “debauchery,” this can only be accomplished by ending the examinations.
The United Nations’ “Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment” instruct physicians to refrain from any direct or indirect participation in torture. They also state:
Guidelines proposed by the International Dual Loyalty Working Group, an initiative of Physicians for Human Rights and South African medical professionals, also lay out principles for physicians working in “difficult” settings, including carceral conditions. Guideline 14 states, “The health professional should not perform medical duties or engage in medical interventions for security purposes.” 446 The Working Group comments that“Health professionals should never engage in medical interventions that are not in the individual’s therapeutic interests, even when requested to do so by authorities for security purposes.”447
While the World Medical Association (WMA), has given qualified endorsement to some highly specialized non-therapeutic medical interventions in prison conditions, it has emphasized that body cavity searches should be restricted to security-related searches for materials that can be used to injure the prisoner herself, or other detainees or personnel.448 These terms exclude the forensic anal examinations conducted in Egypt, which have no security-related purpose.
The British Medical Association (BMA) holds “that no medical practitioner should take part in an intimate body search of a subject without that subject's consent”—defining “an intimate search [as] a search which consists of a physical examination of a person's body orifices other than the mouth.”449
The evidence amassed in this report shows that authorities and physicians conducting forensic anal examinations in Egypt make no effort to obtain consent. The BMA observes, “A fundamental ethical principle guiding medical practice is that no examination, diagnosis or treatment of a competent adult should be undertaken without the person's consent. The ethical obligation to seek consent applies even where this is not a legal requirement.”450 The World Medical Association also requires that physicians should “obtain the subject’s freely informed consent” to medical research, “preferably in writing,” and should exercise particular caution in situations where subjects “may consent under duress.”451
The forensic anal examinations, in addition to their questionable medical value, endanger the bodily and psychological integrity of those who undergo them. The Egyptian government and the Egyptian medical profession must bring them to a halt.
Article 9(1) of the ICCPR states:
The U.N. Working Group on Arbitrary Detention has affirmed that the detention of people solely on the basis of their sexual orientation violates fundamental human rights—even when the laws under which they are detained do not expressly refer to homosexual conduct. It did so specifically in regard to the Queen Boat arrests in Egypt.453 The Working Group held that
The ICCPR’s protections are violated when state agents arrest or detain people on the basis of their sexual orientation, or their consensual sexual conduct with others of the same sex.
Article 14 of the ICCPR affirms that “All persons shall be equal before the courts and tribunals,” and that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” It protects the presumption of innocence in criminal trials; guarantees the accused “adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing”; bars compelling anyone “to testify against himself or to confess guilt”; and confirms the right to have convictions “reviewed by a higher tribunal according to law.”
These provisions are violated when stigma and prejudice are permitted to interfere with the evaluation of law and evidence, and provide the overriding basis for judgment. They are violated when state-controlled media, and other media operating with information leaked by state officials, create an atmosphere of outrage and vilification around a trial, and preclude the possibility of objective decision. They are violated when, in such an atmosphere, the opprobrium attached to an alleged crime is so great that defendants cannot find competent legal representation, much less an unbiased hearing.
They are violated when (as in the Giza case, above) lawyers are not allowed to communicate with their clients or to see crucial evidence in a timely fashion before the trial. They are violated when children are tried without the protections guaranteed them by their status as children.455 They are violated when courts accept confessions allegedly obtained through torture without question or investigation. They are violated when defendants are led before courts (such as the Emergency State Security Courts) which do not allow review by a higher tribunal. They are violated when (as in the second Queen Boat trial) judgment is handed down without key defense witnesses or evidence appearing, or defense arguments being heard.
Finally, unrestricted use of informers and undercover police (as in Internet cases) gravely affects the possibility of a fair trial, and the resulting risk of entrapment damages due process more generally. The European Court of Human Rights drew this conclusion in its decision in Texeira de Castro v Portugal (1998), involving the use of undercover police. The court found that “The use of undercover agents must be restricted and safeguards put in place. . . The public interest cannot justify the use of evidence obtained as a result of police incitement [emphasis added].” The court held police had not investigated a suspect's “activity in an essentially passive manner, but exercised an influence such as to incite the commission of the offence. … That intervention and its use in the impugned criminal proceedings meant that, right from the outset, the applicant was definitively deprived of a fair trial.”456
Article 19(2) of the ICCPR affirms that:
This article provides—similarly to articles 17, 21, and 22 of the ICCPR—that the exercise of the rights in paragraph 2 may be “subject to certain restrictions,” which must be clearly provided for in law and necessary for “respect of the rights or reputations of others,” or to protect “national security,” “public order,” or “public health and morals.” With regard to all these articles, these restrictions must not be applied in a discriminatory fashion—that is, they fall under the ICCPR’s protections against discrimination, which the Toonen decision, as noted above, found to include sexual orientation as a protected status. It is clear that restrictions on the expression of sexual orientation or gender identity per se will not withstand such scrutiny—nor are they necessary to such ends; indeed, such expression in many situations contributes to public health in the context of HIV/AIDS. 457
States violate this right when they use laws on public conduct or behavior to harass and penalize people for the expression of their sexual orientation or gender identity—including expression over the Internet. And states violate this right when they encourage public officials (or incite or excuse other agents) in violence or harassment against men or women who dress, walk, or act in ways at odds with social norms, among them norms for expressing gender.
Article 21 of the ICCPR states that “The right of peaceful assembly shall be recognized.” Article 22(1) of the ICCPR affirms that “Everyone shall have the right to freedom of association with others.”
States violate these rights when they use raids or police dragnets to impede or prevent men who have sex with men, or women who have sex with women, from gathering peacefully. States also violate these rights when they promulgate laws or help create cultural or social situations which bar such people from organizing to assert and defend their rights or hinder others from doing so on their behalf. 458
The U.N. General Assembly’s Declaration on Human Rights Defenders calls attention to the role of the freedoms of association and assembly in the defense of all human rights.459 Indeed, the Special Representative of the U.N. Secretary General on Human Rights Defenders has called attention to the “greater risks… faced by defenders of the rights of certain groups as their work challenges social structures, traditional practices and interpretations of religious precepts that may have been used over long periods of time to condone and justify violation of the human rights of members of such groups. Of special importance will be… human rights groups and those who are active on issues of sexuality, especially sexual orientation.”460
Human Rights Watch calls on the government of Egypt to:
Human Rights Watch calls on the government of Egypt to:
Human Rights Watch calls on the government of Egypt to:
Human Rights Watch calls on the government of Egypt to:
Human Rights Watch calls on the Doctors' Syndicate of Egypt to:
Human Rights Watch also calls on the government of Egypt to:
Human Rights Watch calls on agencies and countries offering aid to Egypt to:
Human Rights Watch also calls on the international medical profession, and bodies including the World Medical Association and the World Health Organization, to:
432 Article 44 of the Constitution states: “Homes shall have their sanctity and they may not be entered or inspected except by a causal judicial warrant prescribed by the law.” More sweepingly, article 45 states: “The law shall protect the inviolability of the private life of citizens. Correspondence, wires, telephone calls and other means of communication shall have their own sanctity and secrecy and may not be confiscated or monitored except by a causal judicial warrant and for a definite period according to the provisions of the law.” Constitution of the Arab Republic of Egypt, articles 44, 45.
433 Egypt ratified the ICCPR in 1982. Article 17 of the ICCPR reads:
It should be stressed that the term “unlawful” in this as in other provisions does not imply that any interference embodied in national law is ipso facto legitimate in light of the Covenant. In its general comment on the right to privacy, the Human Rights Committee noted that restrictions on privacy “authorized by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant” [emphasis added]—a Covenant which the Committee has found to bar such restrictions when based on sexual orientation. The Committee added, “The expression ‘arbitrary interference’ is also relevant to the protection of the right provided for in article 17. In the Committee’s view the expression ‘arbitrary interference’ can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.” U.N. Human Rights Committee, “General Comment No. 16, Article 17,” 32nd Session (1988), at 3, 4.
The U.N. Human Rights Committee also declared in Toonen that it “cannot accept either that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy.” Nicholas Toonen v Australia, Human Rights Committee, 50th Sess., Case no. 488/1992, U.N. Doc. CCPR/c/50/D/488/1992, para. 8.6.
434 Constitutional Court ruling in case no. 23/Judicial Year 16, March 18, 1995. The case involved an article in the Administrative Court Law barring a judge in the State Council from marrying a foreigner; the court ruled the article unconstitutional.
435 Bernstein and Others v von Weilligh Bester and Others NNO, 1996  SA 751 (S. Afr. Const. Ct.).
436 National Coalition for Gay and Lesbian Equality et. al. v Minister of Justice et. al., 1999  SA 6 (S. Afr. Const. Ct.).
437 National Coalition for Gay and Lesbian Equality et. al. v Minister of Justice et. al., 1999  SA 6 (S. Afr. Const. Ct.) (Sachs, J., Concurring).
 Nicholas Toonen v Australia, U.N. Human Rights Committee, 50th Sess., Case no. 488/1992, U.N. Doc. CCPR/c/50/D/488/1992, at 8.7.
For example, see U.N. Human Rights Committee, “Concluding Observations of the Human Rights Committee: Poland,” 66th Session, U.N. Doc. CCPR/C/79/Add.110, at 23: the Committee urged the inclusion of constitutional protections against sexual-orientation-based discrimination. In the case of Trinidad and Tobago, the Committee urged that it “extend the provisions” of anti-discrimination legislation “to those suffering discrimination on grounds of age, sexual orientation, pregnancy or infection with HIV/AIDS.” “Concluding Observations of the Human Rights Committee: Trinidad and Tobago,” U.N. Doc. CCPR/CO/70/TTO,November 3, 2000, at 11.
 “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,” U.N. Doc. E/CN.4/1999/39, 6 January 1999, at 77.
441 U.N. Human Rights Committee, “Concluding observations of the Human Rights Committee: Egypt,” U.N. Doc., CCPR/CO/76/EGY, November 28, 2002.
442 “Report of the Special Rapporteur on the question of torture and other cruel, inhuman and degrading treatment or punishment,” U.N. General Assembly, U.N. Doc. A/56/156, July 3, 2001.
443 U.N. Committee Against Torture, “Concluding Observations: Egypt,” U.N. Doc. CAT/C/XXIX/Misc.4, November 20, 2002, at D(e) and E(k). Egypt acceded to the U.N. Convention Against Torture in 1986.
444 U.N. Committee Against Torture, “Concluding Observations: Egypt,” U.N. Doc. CAT/C/XXIX/Misc.4, November 20, 2002, at E(k).
445 “Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” G.A. Res. 37/194, annex, 37 U.N. GAOR Supp. (No. 51) at 211, U.N. Doc. A/37/51 (1982).
The “Declaration of Tokyo,” adopted by the 29th Assembly of the World Medical Association in 1975, sets forth comparable ethical principles governing physicians’ conduct in relation to torture. It mandates that:
“Guidelines for Medical Doctors concerning Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in relation to Detention and Imprisonment,” adopted by the 29th World Medical Assembly, Tokyo, Japan, October 1975.
446 “Proposed Guidelines for Practice in Difficult Settings,” in Dual Loyalty and Human Rights in Health Professional Practice: Proposed Guidelines and Institutional Mechanisms, A Project of the International Dual Loyalty Working Group, A Collaborative Initiative of Physicians for Human Rights and the School of Public Health and Primary Care, University of Cape Town, Health Sciences Faculty (Cape Town: University of Cape Town, 2002), pp. 73-76.
448 “Statement on Body Searches of Prisoners,”adopted by the 45th World Medical Assembly, Budapest, Hungary, October 1993.
449 “Policy on Body Searches,” adopted at the Annual Representative Meeting of the British Medical Association, 1989.
450 Ibid. In carceral conditions, however, the medical practitioner's should not merely seek the consent of subjects, but ascertain whether it is informed and freely given. The British Medical Association, again specifically addressing body searches, states:
The acuity of all these pressures upon a prisoner facing trial for “debauchery” in Egypt makes it unlikely that even express effort to obtain consent would elicit an unequivocal expression of the detainee's will.
451 “Ethical Principles for Medical Research Involving Human Subjects” (Declaration of Helsinki), adopted by the 18th World Medical Association General Assembly, Helsinki, Finland, June 1964.
452 The travaux preparatoires to article 9 of the Convention make clear, in the words of one commentator, that “arbitrary” does not simply mean “unlawful” arrest or detention, but includes police or judicial actions that display “elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality,” though the reason for the arrest may lie within the letter of the law. In particular, “the specific manner in which an arrest is made must not be discriminatory and must be able to be deemed appropriate and proportional in view of the circumstances of the case.” Manfred Nowak, CCPR Commentary (Kehl: N.P. Engel, 1993), pp. 172-73.
453 U.N. Working Group on Arbitrary Detention, “Opinion no. 7/2002 (Egypt)”, at 7 and 14-15.
454 The Working Group stated that it “based its opinion on that of the Commission on Human Rights [sic], according to which the reference to 'sex' in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation. “ “Report of the Working Group on Arbitrary Detention,” U.N. Doc. E/CN.4/2003/8, December 16, 2002, at 68 and 69. The Working Group sent an urgent appeal (with the U.N. Special Rapporteur on the Independence of Judges and Lawyers, and the U.N. Special Rapporteur on Torture) to the Egyptian government on May 17, 2001, concerning the arrests at and around the Queen Boat; it sent another appeal on November 19, 2001, with the U.N. Special Rapporteur on the Independence of Judges and Lawyers, concerning the arrests in Boulaq al-Dakrour. See “Report of the Special Rapporteur on the Independence of Judges and Lawyers,” U.N. Doc. E/CN.4/2002/72, February 11, 2002, at 57, 59, 64.
455 Articles 37 and 40 of the U.N. Convention on the Rights of the Child protect children against torture and arbitrary arrest, and defend the child’s rights both to due process and to respect for “the needs of persons of his or her age” (article 37c), including separation from adult prisoners and regular contact with his or her family.
456 Teixeira de Castro v. Portugal, European Court of Human Rights judgment, 44/1997/828/1034, 9 June 1998, at 36, 38, 39.
457 Manfred Nowak, an authoritative commentator on the ICCPR, notes that a “liberal interpretation of public morals is correct… as a general principle [if] freedom of expression and information is to fulfill its function as one of the most important civil and political rights.” He also observes that “there can be no doubt that every communicable type of subjective idea and opinion, of value-neutral news and information, of commercial advertising, art works, political commentary regardless of how critical, pornography, etc., is protected by Art. 19(2), subject to the permissible limitations in para. 3. It is thus impossible to close out undesirable contents, such as pornography or blasphemy, by restrictively defining the scope of protection.” Manfred Nowak, CCPR Commentary, pp. 358 and 341.
458 Egypt’s Law on Non-governmental Organizations (NGOs) (Law 84/2002) prohibits associations which violate “public order or morals” (article 11)—one of many provisions in the legislation which could be used to restrict the activities and threaten the existence of civil society. The law has already been used to ban human rights organizations, including an attempt by activists to found an Egyptian Association Against Torture: See Human Rights Watch press release, “Egypt’s New Chill on Rights Groups: NGOs Banned, Activist Harassed,” June 21, 2003, at http://www.hrw.org/press/2003/06/egypt062103.htm.
459 U.N. Declaration on the Rights and Responsibilities of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (U.N. General Assembly Resolution 53/144, March 8, 1999), article 5.
460 “Report of the Special Representative to the Secretary General on human rights defenders,” U.N. Doc. E/CN.4/2001/94, at 89(g).