New York — Military prosecutors should immediately refer to the civilian judiciary 25 civilians arrested on November 18, 2012, during an attempted forced eviction by the military police that left one of the inhabitants dead. Civilian prosecutors should investigate the excessive use of force by the military police, in particular the lethal shooting, and prosecute any members of the military responsible for unlawful use of force.
The 25 inhabitants of the island of Qursaya, on the Nile in the Giza area of Cairo, were detained for resisting efforts by the military police to evict them. The military claims they are on military property, despite a 2010 court verdict overruling previous eviction orders and recognizing the inhabitants' right to live and work on the island.
"The fact that the military is evicting people, arresting civilians, and bringing them before military courts is a serious challenge to civilian rule and President Mohamed Morsy should put a stop to it," said Joe Stork, deputy Middle East and North Africa director at Human Rights Watch. "Egypt's Constituent Assembly should once and for all put an end to military trials by enshrining in the constitution that the military has no power to detain or try civilians."
Military police brought the 25 island residents they arrested on November 18 before military prosecutors at the military courts, who charged them with assaulting the military and seizing land owned by the armed forces and ordered their detention for 15 days.
In the early hours of November 18, hundreds of military police stormed Qursaya, which has an estimated population of 2,000, to evict residents from the part of the island the military claims is its property. A local resident, Ahmad Abdel Moneim, 40, told Human Rights Watch what happened:
There was no discussion. We were all sleeping. They came to the room where I was sleeping with my family. They threatened us and gave us two minutes to evacuate the room. When my cousins, Abdel Moaty Ahmed and Mostafa Ali Yassin, told the lieutenant that this is our land, he ordered their arrest, brought a tank of gasoline, poured it in the room, and set it on fire. They arrested my cousins just for claiming the ownership of the land. One of my cousins is the imam of the island's mosque.
Another resident, Ali Mahmoud Mohammed, 20, told Human Rights Watch:
I sleep every night on the floor with a couple of people my age to guard land. It was around 5 a.m. when the island was raided. I was sleeping and all of a sudden heard the shootings, started running like everyone. I saw 200 to 250 soldiers firing at everyone without any introductions.They shot a boy my age in the leg while [he was] trying to jump into the water, then they shot him in the chest. He died. They arrested more than 25 people, mostly those who couldn't run. They struck people with tasers and arrested them.
The subsequent clashes between inhabitants and the military killed Mohamed Abdel Mawgoud Mohamed, a 20-year-old fisherman from the island, and injured 10 people, including 5 soldiers. Researchers from the Egyptian Initiative for Personal Rights told Human Rights Watch that they had documented excessive use of force by the military during the morning operation.
The burial permit obtained by lawyers stated that Mohamed had been shot twice in his side with live ammunition and had died within eight minutes. Alaa Farouk, a lawyer from the Egyptian Initiative representing the victim's family, filed a complaint before the South Giza prosecutor's office, asking it to summon the military police deployed that day for questioning. However, the prosecutor refused to summon witnesses and the next day referred the investigation to the office of the military prosecutor.
Human Rights Watch has consistently contended that the key step to ensure accountability for serious human rights abuses by the military in Egypt is to bring military personnel accused of serious human rights abuses against civilians before civilian courts.
Basma Zahran, a lawyer with the anti-torture group the Nadim Center for the Rehabilitation of Victims of Torture, was present during the interrogation of two of the detainees from the November 18 episode by the military prosecutor and told Human Rights Watch that they had cuts and bruises on their faces from the clashes on the island. Both detainees had told the military prosecutor that military police beat them and used electroshock guns on them during the arrests.
In a statement posted on his official Facebook page on November 18, a military spokesman, Colonel Ahmad Mohamed Ali, said that the land in question was the property of the armed forces and that they planned to use it to "conduct operations to secure the capital." In 2007, the government had issued an eviction order and the Agriculture Ministry had ordered that farmers' land contracts not be renewed, claiming that the island, whose central location makes it valuable real estate property, was state property and would be turned into an environmental protectorate. However, the inhabitants appealed the eviction order before the administrative courts and won the case.
Egypt's highest administrative court in February 2010 ordered the cabinet and Agriculture Ministry to halt any eviction plans, confirming the right of its inhabitants, both farmers and fishermen, to continue to live and work there on the basis of the constitutional right to housing and work.
The UN Committee on Economic, Social and Cultural Rights has stated that under the right to housing in the Covenant on Economic, Social and Cultural Rights, forced evictions are strictly prohibited. Forced evictions are defined as "permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection."
"The question is why the military is trying to evict these residents despite this court ruling?" Stork said. "And on what legal basis, when the military is no longer ostensibly ruling Egypt, are military police involved in assaulting and arresting civilians?"
Unfair military trials of civilians were one of the most serious violations Egyptians experienced during the more than a year-and-a-half of military rule, which effectively ended in August. In 2011, military courts tried over 12,000 civilians, convicting at least 9,000, including hundreds of political activists, but most of the cases related to ordinary criminal activity. After his election, President Morsy had vowed to end military trials of civilians and set up a committee to review cases of civilians sentenced by military tribunals, among others. The committee completed its work in October but failed to recommend the release or retrial of all those convicted by military tribunals, excluding from review 1,100 who remain imprisoned on grounds of "security concerns."
The current draft of Egypt's constitution includes Article 63, which provides for fair trial guarantees and specifically states that, "No civilian may be tried before military courts." In a memo sent to the Constituent Assembly on November 11, the head of the military justice authority, Radwan Ghazy, formally objected to this language. He said the provision would limit the jurisdiction of military courts, which can currently bring civilians to trial on 14 grounds under the Code of Military Justice, and that it was not appropriate to retain this language without qualification.
As it stands, Article 63 reflects international law and should be retained, since it is the Code of Military Justice that violates international law, Human Rights Watch said. International human rights bodies over the last 15 years have determined that trials of civilians before military tribunals violate the fair trial guarantees in article 14 of the International Covenant on Civil and Political Rights (ICCPR) and article 7 of the African Charter on Human and Peoples' Rights, which affirms that everyone has the right to be tried by a competent, independent, and impartial tribunal.
However, the November 11 draft of the constitution published in the Egyptian daily Al Masry al Youm also includes in the chapter on the armed forces Article 199, which states that, "Only military personnel and those under their rule shall be brought before the military justice system." The term "under their rule" lays the provision open to abuse since it may include civilians working in military-owned factories, including pasta or mineral water factories owned by the Egyptian military. A provision that would even more clearly violate international law, first included in the October 22 draft, is currently still listed under Article 199 as an "alternative provision," which states:
The military justice system is an independent judicial body with sole competence to try all crimes related to the armed forces and military personnel (during their performance of military duty). Civilians can be tried before military courts in the circumstances defined by law, and the law shall determine their jurisdiction, within constitutional principles.
In the memo to the Constituent Assembly, the head of the military justice referred to this formulation as the military's preferred language. This language would allow for military trials of civilians to continue unabated since the Code of Military Justice gives the military overly broad discretion to try civilians, Human Rights Watch said.
"Egypt will never move on from the abusive legacy of military rule while the military can still arrest civilians at will and bring them before the military justice system." Stork said. "Members of the Constituent Assembly should once and for all insist on the primacy of the civilian justice system and reject pressure from the military to protect their privileges in the constitution."