Cairo — The law that President Mohamed Morsy of Egypt issued on December 9, 2012, grants the military authority to arrest civiliansand refer them to military courtsuntil results are announced in the scheduled December 15 constitutional referendum. Morsy should immediately amend the law to prohibit trials of civilians before military courts and require the military to promptly hand over any detained civilians to civilian prosecutors.
Law No. 107 of 2012, the 11th law Morsy has issued since taking over legislative authority from the military in August, grants law enforcement powers to the armed forces without any protections against the referral of civilians for military trials. Past Human Rights Watch research, primarily during military rule, found that military involvement in law enforcement was accompanied by serious abuses including excessive use of force, torture, and sexual assault.
"Any deployment of the Egyptian military to help maintain security needs to be accompanied by guarantees to respect basic rights," said Sarah Leah Whitson, Middle East director at Human Rights Watch. "President Morsy should be ending, not expanding, military trials of civilians."
The new law ignores a June administrative court decision annulling a similar decree issued by the justice minister during military rule. 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, with over 12,000 civilians tried before military courts.
Law No. 107 gives the military law enforcement powers that raise serious human rights concerns, Human Rights Watch said. Article 1 provides for deploying the military to provide security until the referendum results are announced. Article 2 states that members of the armed forces shall have "all powers of judicial arrest authority." Article 3 provides that military officers should hand over those arrested to the appropriate prosecution, "without contravening the jurisdiction of the military justice system." Articles 2 and 3 are of particular concern because over the past two years the Egyptian military has considered any involvement of a military officer in law enforcement sufficient jurisdictional basis to bring those civilians before military courts, Human Rights Watch said.
Human Rights Watch strongly opposes any trials of civilians before military courts. The African Commission on Human and Peoples' Rights, in interpreting the African Charter on Human and Peoples' Rights, has said that military courts "should not, in any circumstances whatsoever, have jurisdiction over civilians."
A similar decree issued on June 13 by the justice minister during the rule of the Supreme Council of the Armed Forces (SCAF) raised similar concerns, Human Rights Watch said. Commenting on the decree at the time, presidential candidate Morsy told an Al Jazeera program that "this was a strange decision" and said that the timing "raised suspicions because it was just before the elections." He added that "giving military intelligence officers, who are unknown to the public, the right to judicial arrest warrant, based on their assessment, will be open to abuse, in particular with voters, and the electoral process itself." On June 26, the Council of State, Egypt's highest administrative court annulled the justice minister's decree.
The panel ruled that, "Citizens have a right to be tried by their natural judge, a corollary of the principle of the independence of the judiciary and its impartiality, and to prove a feeling of safety to the accused." It also found that "exceptional measures that threaten procedural legitimacy should not be used in the name of maintaining security" and that "only the president has the right to deploy the military and only in a state of emergency."
The Egyptian military's involvement in law enforcement has been characterized by widespread and serious human rights violations over the past year-and-a-half, Human Rights Watch said. December marks the one year anniversary of the "cabinet protests," which military police used excessive force to disperse, including beating and kicking women, which was captured on video. Despite pledges to investigate and prosecute these abuses, the military has not investigated or prosecuted military personnel for these offenses, for the torture of protesters in Abbasiya in May 2012, or for the torture and sexual assault of female protesters in detention under the guise of "virginity tests" in March 2011.
Despite Morsy's promises after his election in June to end military trials of civilians, these trials have continued. On November 18, military police arrested 25 civilians during an attempted forced eviction on the island of Qursaya, on the Nile in the Giza area of Cairo, and took them to military prosecutors. The prosecutors charged the civilians with assaulting the military and their property, despite a February 2010 court order granting the civilians the right to live and work on the island. The military trial opened on December 2, 2012, and is ongoing.
The proposed constitution would permit military courts to try civilians and would severely harm efforts to hold abusive military personnel accountable, Human Rights Watch said. The final draft constitution submitted by the Constituent Assembly to the president on December 1 fails to limit military trials of civilians, backtracking on language in earlier drafts that stated that, "No civilian shall be tried before the military justice system." Assembly members removed this language after military justice officials formally objected. Article 198 of the final draft now provides that, "Civilians may not be tried before the military justice system except for crimes that harm the armed forces, and this shall be defined by law." This leaves intact the military's discretion to try civilians under the Code of Military Justice.
Article 198 also stipulates that only the military justice system will have jurisdiction over crimes involving military personnel, preventing any attempts by the civilian justice system to investigate military officers in the future and effectively providing them immunity from prosecution, Human Rights Watch said. In places with a history of abusive and unaccountable militaries, such as Mexico and Chile, Human Rights Watch has found that having military tribunals prosecute alleged human rights violations committed by military personnel facilitates impunity.
"If approved, the draft constitution will effectively end any hopes of holding the military accountable for crimes over the past two years by allowing it to keep prosecutions in the family," Whitsonsaid. "It also embeds the right of the military to continue to try civilians, a serious obstacle to limiting military authority and privileges in the future."