By Rebecca Lowe
There is compelling evidence that the Egyptian military committed crimes against humanity against deposed president Mohamed Morsi and supporters of the Muslim Brotherhood, leading lawyers have told IBA Global Insight.
Lord Ken Macdonald QC, former UK Director of Public Prosecutions, and top British human rights barrister Michael Mansfield QC believe the International Criminal Court (ICC) should investigate allegations that gross atrocities were committed by security forces while crushing Brotherhood protests last year.
They form part of an international legal team hired by the Brotherhood’s Freedom and Justice Party (FJP) to pursue the case at the ICC.
‘On the face of it, it looks like a democratically elected government overthrown by a coup, in the course of which a number of people are killed, others disappear, others are tortured,’ says Macdonald. ‘It seems to be prima facie evidence of crimes that are justiciable by the ICC […]. One of the reasons the ICC was created was to deal with this issue of impunity.’
‘To me it is a rather obvious case whereby the rule of law has been bashed aside and the international community has done very little about it,’ adds Mansfield. ‘Whatever you may think about them, to overthrow [the Brotherhood] with a non-democratic process is a denial of everything that international law stands for.’
‘On the face of it, it looks like a democratically elected government overthrown by a coup, in the course of which a number of people are killed, others disappear, others are tortured’
Lord Ken Macdonald QC
Former UK Director of Public Prosecutions
Macdonald and Mansfield were recruited by ITN Lawyers, based in London, alongside former UN Rapporteur for Human Rights John Dugard SC and international law expert Rodney Dixon QC. Dugard compares the treatment of the Brotherhood to that of the African National Congress in South Africa, while Mansfield believes it is a clear case of ‘might is right’.
‘It’s a very familiar history,’ he says. ‘You have an opposition that has to be crushed in the eyes of those in power. It seems to me that when this sort of thing happens, those who are bothered about it really have to speak up.’
According to evidence compiled by ITN, the Egyptian regime killed at least 1,120 unarmed civilians during its fierce crackdown on sit-ins protesting against Morsi’s overthrow in July 2013. According to ITN partner Tayab Ali, security forces carried out a ‘widespread, systematic campaign’ against unarmed civilians. Crimes committed, he alleges, include murder, torture, persecution and enforced disappearances.
Egypt has not ratified the Rome Statute, which brought the ICC into being. However, non-member states may accept the Court’s jurisdiction on an ad hoc basis by lodging an ‘Article 12’ declaration. Ali’s team argues the declaration, signed by Morsi, is valid as he remains the ‘legal and legitimate’ leader of Egypt.
‘The question as to what is the lawful government of Egypt is expressly not a political judgment,’ stresses Macdonald. ‘It is a legal judgment.’
‘There is a national consensus that we must establish a democratic regime. The problem is how to go about it when we are under daily threat of terrorism.’
Former assistant foreign minister under President Hosni Mubarak
Mona Zulficar, founding partner of Zulficar & Partners and Vice-President of the committee tasked with re-drafting the Egyptian Constitution, disagrees. Speaking on behalf of the Egyptian Government, she stresses that ‘neither former President Morsi nor the Brotherhood have the legal standing to make any declarations on behalf of the Egyptian State or Government’. All Brotherhood claims against the security forces are being investigated by an independent committee led by Professor Fouad Riad, a former judge at the International Criminal Tribunal for the former Yugoslavia (ICTY), she says. ‘There is therefore no need for the ICC or any other forum to carry out such an investigation.’
Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia and Rwanda, and Chair of the IBA’s Rule of Law Action Group, says he would be ‘surprised’ if the ICC took on the case. ‘Morsi is no longer accepted by the international community as the head of state and his government has effectively been replaced, albeit by a coup,’ he says. ‘Egypt is not a party to the Rome Statute […]. It follows in my view that there are hardly any prospects of success.’
Hussein Haridy, former assistant foreign minister under President Hosni Mubarak, agrees. ‘Legally, the case seems weak to me,’ he says. ‘When you are imposing law and order and unfortunately some lives are lost, would this from a legal point of view be considered a crime against humanity? Is it comparable to what is happening in Syria?’
Morsi became the first ever democratically elected president of Egypt when he was voted into power in June 2012. He was deposed in July 2013 following widespread demonstrations against his rule, which was deemed increasingly autocratic. The Brotherhood have since been designated a terrorist organisation and all street protests have been banned.
On 18 January, a new Constitution banning religious political parties was voted in by an overwhelming 98 per cent of participants. The Brotherhood dismissed the referendum as a ‘farce’.
Hussein concedes the FJP came to power in democratic elections, but questions the validity of the process. ‘The 2011 and 2012 elections were not held in a normal situation. The country was in the throes of a highly unstable situation.’ He adds: ‘There is a national consensus that we must establish a democratic regime. The problem is how to go about it when we are under daily threat of terrorism.’
Bahey El Din Hassan, Director of the Cairo Institute for Human Rights Studies, says ‘excessive repression’ was used to disperse the pro-Morsi sit-ins, in which only ‘a few’ protesters were armed. He believes the ICC legal argument is weak, but calls on the international community to help Egyptians achieve justice for all crimes committed since the revolution.
‘Egypt is now more repressive than under Mubarak,’ he says. ‘If there’s no serious investigation into these crimes, this would definitely give moral support to the demands made of the international judicial system. It’s not just the Brotherhood that hasn’t had justice, but all the victims since January 2011. No-one has been held accountable.’
The International Bar Association’s Human Rights Institute (IBAHRI) will be launching its report ‘Separating Law and Politics: Challenges to the Independence of Judges and Prosecutors in Egypt’ at the Law Society of England and Wales on 10 February. Speakers include UN war crimes expert Cherif Bassiouni and Nasser Amin, Executive Director of the Arab Center for Independence of the Judiciary and the Legal Profession. RSVP at http://tinyurl.com/IBAHRIevent-10Feb2014.