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II. Torture in Egypt and the Prohibition Against Involuntary Return

Over the past ten years, Egypt’s campaign to eradicate armed militant Islamists moved from the streets of its large cities and the countryside of Upper Egypt to countries around the world where some of those militants had taken refuge.  The government has sought the return of alleged militants from Pakistan, Albania, Bosnia, Sweden, Iran, Jordan, Saudi Arabia, the United Kingdom, and Yemen. Torture in Egypt is practiced routinely, and systemically when it comes to suspected Islamist militants.3  In these circumstances, such returns are forbidden under international law, which prohibits the return of individuals to countries where they are at significant risk of torture.

Torture, although it is strictly forbidden under Egyptian law and the international human rights treaties Egypt has signed, has been a widespread and persistent phenomenon in the country, particularly during interrogation of security suspects. Methods of torture include beatings with fists, feet, leather straps, sticks, and electric cables; suspension in contorted and painful positions accompanied by beatings; the application of electric shocks; and sexual intimidation and violence. The government-appointed National Council for Human Rights, in its first annual report released in April 2005, acknowledged that torture is part of “normal investigative practice” in Egypt.4

Since the early 1990s, suspected Islamist militants have borne the brunt of these practices.5 The defeat of the Islamist insurgency by the end of the 1990s in no way mitigated the problem of torture, and deaths in custody as a result of torture and ill-treatment have once again shown a disturbing rise over the past several years. Egyptian human rights organizations reported at least ten cases in 2002 and ten more in 2003, several of which were at the hands of SSI perpetrators. 6  The Egyptian Organization for Human Rights (EOHR), in May 2004, reported 292 known torture cases in the eleven years between January 1993 and April 2004, 120 of which resulted in the death of the suspect or prisoner.7

The single greatest number of known cases of torture, and deaths resulting from torture, occurred in SSI offices.8 In November and December 2004, Human Rights Watch and Egyptian human rights groups found credible evidence that SSI routinely used torture during interrogations following the October 2004 bomb attacks against the Taba Hilton hotel and other tourist sites, when thousands of persons were taken into custody and held without charge in incommunicado detention.9

The U.N. Committee Against Torture, the U.N. Human Rights Committee, and the U.N. Special Rapporteur on Torture have frequently expressed grave concern at the persistent and credible reports of torture and cruel, inhuman, or degrading treatment at the hands of Egyptian law enforcement personnel, and in particular the security services. These bodies also have criticized the failure of the government to conduct investigations into such practices and punish those responsible. To date, Egypt has refused to permit the U.N. Special Rapporteur on Torture to visit the country.

The U.S. government has also consistently reported cases of torture at the hands of law enforcement and security officials. In the most recent Country Reports on Human Rights Practices, covering 2004, the State Department wrote that “torture and abuse of detainees by police, security personnel, and prison guards remained common and persistent,” and detailed numerous cases.10

The problem of torture in Egypt cannot be separated from the pervasive culture of impunity that prevails around this question, particularly with regard to the SSI. Egypt’s Prosecutor General’s office has investigated and prosecuted some cases involving police officials after human rights lawyers or family members filed formal complaints. None of those investigations, however, involved officials of the SSI, despite the fact that SSI officials were implicated in no less than thirty-three of the cases of torture documented by the EOHR. One of the most outrageous cases goes back more than a decade: in April 1994, SSI officers took Islamist defense lawyer `Abd al-Harith al-Madani from his office and the next day he was dead. Although the prosecutor-general at the time conceded that al-Madani’s death was “criminal,” the authorities have carried out no criminal investigation or held anyone accountable for the torture death.11 A top Egyptian interior ministry official, in meetings with Human Rights Watch in February 2004 and again in February 2005, confirmed that there have been no criminal investigations or internal disciplinary measures taken in response to allegations of torture and ill-treatment by SSI officials since 1986—nearly twenty years!12 In the face of a systematic failure of the Egyptian authorities to investigate and prosecute officials alleged to have perpetrated these practices, the problem of torture has reached epidemic proportions.

These cases reported by Egyptian human rights groups do not include the scores of suspects transferred involuntarily to SSI custody from abroad over this period, several of whom have made credible allegations that they were subjected to torture.13 One of these is Mamduh Habib, the Australian citizen captured in Pakistan in October 2001 whom the U.S. transferred to Egyptian custody where for six months, according to a court affidavit filed by his U.S. lawyer, “he was subjected to unspeakable brutality,” including severe beatings for hours at a time and electric shock treatment of “ingenious cruelty.”14 Habib was subsequently transferred to Guantanamo Bay, via Bagram Air Base in Afghanistan, until his release without charge in January 2005.

The Prohibition against Refoulement

The obligation to avoid the transfer, or refoulement, of individuals back to countries that practice torture, is a customary norm of international law. The prohibition against refoulement is also codified in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Under Article 3 of the CAT, states must not “expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture….”15  Article 3 further states, “For the purpose of determining whether there are such [substantial] grounds, the competent authorities shall take into account all relevant considerations, including where applicable, the existence in the State concerned of a consistent pattern of gross, fragrant or mass violations of human rights.”

Article 2 of the International Covenant on Civil and Political Rights also prohibits torture and other cruel, inhuman, and degrading treatment. The United Nations Human Rights Committee has interpreted this article to include an obligation not to engage in refoulement:

[The Article 2] obligation requiring that States Parties respect and ensure the Covenant rights of all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm… either in the country to which removal is to be effected or in any country to which the person may subsequently be removed.16

Despite this unambiguous prohibition, and in most cases without any judicial process in the countries concerned or in Egypt, the suspects have been sent back, typically directly into the hands of State Security Investigations (SSI) agents in the Ministry of Interior.  Most subsequently have been held incommunicado; family members, lawyers, and the public have remained completely in the dark as to their whereabouts. There is considerable evidence that many have been tortured or otherwise abused while in detention.

The Arab Convention for the Suppression of Terrorism

Most of the persons known to have been transferred involuntarily to Egypt have been Egyptians sent from other Arab countries.17 The return of men like Sayyid `Abd al-`Aziz al-Sharif and Muhammad al-Zawahiri from countries like Yemen and UAE to Egypt, though it violates international law, does not necessarily run afoul of the Arab Convention for the Suppression of Terrorism. Before the Convention came into force, such returns were governed by bilateral agreements between the individual states.

The Convention was signed by representatives of member states of the Arab League, with no small amount of ceremony, in Cairo on April 22, 1998. Within weeks of the signing ceremony, Arab human rights groups began to express concerns about the lack of human rights protections in the Convention, and the fact that the Convention, taken as a whole, seemed to be an effort to “contract around” certain basic international law obligations, including the obligation not to return an individual to a country where he or she will be at risk of torture.18 Nowhere does the document affirm the prohibition against refoulement, a peremptory norm of international law. Instead, the member states of the Arab League commit to “cooperate and coordinate” with other member states, and to extradite them “in accordance with the rules and conditions stipulated in this Convention.”19 Although the Convention does state that return is not permitted under certain circumstances—for instance, offenses of a “political nature” or if the offense “relates solely to dereliction of military duties”20—it does not ask that a government consider whether or not a person will be tortured or ill-treated upon return before making a decision whether or not to hand over a requested individual.

[3] See, for example, Human Rights Watch, Behind Closed Doors: Torture and Detention in Egypt (New York, 1992); “Egypt’s Torture Epidemic,” [Briefing Paper] February 2004; and Mass Arrests and Torture in Sinai (New York, 2005). On the general use of torture by Egyptian law-enforcement officials, see also Human Rights Watch, In a Time of Torture: The Assault on Justice in Egypt’s Crackdown on Homosexual Conduct (New York, 2004).  

[4] Heba Saleh, “Egyptian report denounces torture,” BBC News, April 11, 2005 [retrieved April 11, 2005].

[5] See Human Rights Watch, Behind Closed Doors: Torture and Detention in Egypt (New York, 1992), especially chapters 3 and 4.

[6] See “Egypt’s Torture Epidemic: A Human Rights Watch Briefing Paper,” February 2004, and the additional cases of deaths in detention of Radi Mustafa Ahmad Nassar, `Izzat Bayumi Saqr, and Mustafa Musa in Egyptian Organization for Human Rights, “Torture in Egypt…an unchecked phenomenon” (May 29, 2004), at [retrieved April 4, 2005].

[7] EOHR, “Torture in Egypt…an unchecked phenomenon” (May 29, 2004), at [retrieved April 4, 2005].

[8] Ibid.

[9] Human Rights Watch, Mass Arrests and Torture in Sinai, (New York, February 2005).

[10] “Egypt: Country Reports on Human Rights Practices – 2004,” released by the Bureau of Democracy, Human Rights, and Labor, February 28, 2005, at

[11] For details, see Human Rights Watch, World Report 1995, p. 263.

[12] The meetings were with Gen. Ahmad `Umar Abu al-Sa`ud, a member of the cabinet of Minister of Interior Habib al-`Adli, on February 28, 2004 and February 22, 2005, in Cairo.

[13] The Egyptian Organization for Human Rights (EOHR) told Human Rights Watch that it had tried unsuccessfully to meet with Khalifa Bidaiwi al-Sayyid al-Badawi and one other person from the group of Egyptians forcibly returned from Yemen in February 2004 after their wives had approached the group for assistance (telephone interview with Tariq al-Zaghloul, Cairo, April 12, 2005). According to al-Zaghloul, the wife of al-Badawi met with her husband at the end of Ramadan, in mid-November 2004, but the brevity of the meeting and the presence of security guards did not allow her to ascertain his treatment in detention. Al-Zaghloul also said that al-Badawi and the others were serving sentences that had been imposed in absentia by military tribunals in previous years—in al-Badawi’s case a seven year sentence imposed in 1989.

[14] Mamduh Habib, et al., petitioners, v. George Walker Bush, President of the United States, et al., Respondents, Civil Action No. 02-CV-1130 (CKK), filed in the U.S. District Court for the District of Columbia. (filed with the Court Security Officer for clearance on November 24, 2004).

[15] United Nations Covention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, 39 UN GAOR Supp. No. 51, at 197, UN Doc. A/RES/39/708 (1984).

[16] HRC General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004).

[17] See appendix: thirty-two of the sixty-three known cases were from Jordan, Saudi Arabia, Yemen, Kuwait, Libya, Sudan, Syria, and the United Arab Emirates.

[18] Arab Center for the Independence of the Judiciary and the Legal Profession, Commentary on the Arab Convention Against Terrorism: the agreement protects the security of Arab governments and threatens the security of citizens and political opponents, Cairo, May 7, 1998.

[19] The Arab Convention for the Suppression of Terrorism, Article 5. An English translation of the Convention is provided as Annex II in Amnesty International, “The Arab Convention for the Suppression of Terrorism: A serious threat to human rights,” AI Index IOR 51/001/2002, January 9, 2002, available at [retrieved April 21, 2005].

[20] Ibid., Article 6.

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