Below is a research paper translated from the Egyptian Coordination for Rights and Freedoms which discusses military trials of civilians in Egypt.
The paper is divided into three sections: (i) The history of military jurisdiction in Egypt, (ii) Military jurisdiction in the contemporary world and lastly, (iii) Why we refuse to accept the referral of civilians to military courts.
This paper has been prepared by Osama Nasif and Ali Nagah, who are human rights researchers in Egyptian Coordination for Rights and Freedoms.
Military trials of civilians has been among the oldest matters of contention in Egypt. The development and evolution of Egyptian military laws has been taking place since the days of the British occupation and continues today. The development through the aforementioned period will be discussed as seven key stages.
On June 7, 1884, a law was passed mandating compliance to procedures followed by the British army (the occupational forces). In 1893, all these provisions were supplemented with the procedures being followed by the British army and the resulting code was named Martial Provisions. This set of laws was republished as and when the British army’s procedures underwent amendments in 1917, 1939 and lastly in 1949 (courts in Egypt then were known as the ‘Mixed Courts’) i.e. Civil courts functioning under the mandate of the military.
The most infamous transgression committed during this period was the Denshawai Incident where 92 persons were presented before the court, 36 were convicted and varying punishments were handed out among which four were death sentences; the rest were either hard labour or flogging.
This period began from October 15, 1949, onwards. Despite its impact on achieving virtual independence and the subsequent annulment of mixed courts and foreign privileges, it was still characterised by foreign influence.
This stage began from July 23, 1952, onwards. The charter adopted during this period states in the fifth chapter:
“The new revolutionary concepts of a sound democracy are bound to be imposed on those parameters which affect the characterisation of citizens. The foremost among those are education, laws and administrative regulations. Similarly, laws should be formed in a way through which they are able to serve the new social relationships which shall be established by a sound democracy in order to express the manifestation of a socialist democratic nation.”
Following this, civilians were referred to military courts and subjected to most of the laws that were in force previously. In fact, such referrals became more frequent compared to the occupational period and were mainly directed towards suppressing political opposition.
Prominent transgressions during this period:
Law 25 of 1966 states:
“The General Department of Military Judiciary is a high command department of the armed forces. The military prosecution, military courts and other branches thereof shall conform to the orders of this department in accordance with the laws and regulations of the armed forces.”
Prominent transgressions during this period:
The period after the January 25, 2011, Revolution (Rule by Supreme Council of the Armed Forces).
This period began from June 30, 2012, and culminated on June 29, 2013. From the beginning of Mohamed Morsi’s presidency until the return of power to the army once again. During this period, a fundamental change occurred in the constitution (constitution of 2012) and primarily to the articles pertaining to the referral of civilians to military courts.
Article 198 of the 2012 Constitution stated:
“The Military Judiciary is an independent judiciary that adjudicates exclusively in all crimes related to the armed forces, its officers and personnel. Civilians cannot stand trial before military courts except for crimes that harm the armed forces. The law defines such crimes and determines the other competencies of the Military Judiciary.”
Despite this, the ground reality did not change much. Military jurisdiction was not completely abolished. Nonetheless, no person was referred to military courts for trial during this period but neither were persons convicted by such courts during previous regimes released.
This is the period from July 3, 2013, to date. It is considered to be the worst period in the history of Egypt wherein the military judiciary has been bestowed extensive powers over civilian affairs in order to repress political dissidence.
The 2013 constitution does not differ greatly from the 2012 constitution in this regard. The 2013 constitution states:
“The Military Judiciary is an independent judiciary that adjudicates exclusively in all crimes related to the armed forces, its officers, personnel, and their equals, and in the crimes committed by general intelligence personnel during and because of the service. Civilians cannot stand trial before military courts except for crimes that represent a direct assault against military facilities, military barracks, or whatever falls under their authority; stipulated military or border zones; its equipment, vehicles, weapons, ammunition, documents, military secrets, public funds or military factories; crimes related to conscription; or crimes that represent a direct assault against its officers or personnel because of the performance of their duties. The law defines such crimes and determines the other competencies of the Military Judiciary.”
In order to further strengthen the constitutional stipulation, a group of laws regarding military trials were issued:
Law 136 of 2014 issued by President al-Sisi through presidential decree in the absence of parliament “with regards to the security and protection of vital public facilities”. This law places almost all public facilities under the authority of the Military Judiciary for a period of two years.
On November 11, 2014, former public prosecutor Hisham Barakat issued a notification to all public prosecutions ordering them to review case files that fall under the newly promulgated law and to present such files and refer them to the military prosecution “whenever they require so”.
Similarly, Article 204 of the Egyptian constitution which was introduced following a public referendum in January 2014 under the transitional government after President Morsi was deposed defines a set of crimes for which civilians may face military trials. The Article defines such crimes by limiting them to those which represent a direct assault on military personnel or equipment, and crimes which are a direct assault upon military factories, funds, secrets or documents.
Transgressions during this period:
Military trials are considered to be a gross violation of covenants of international law including the African Charter on Human and Peoples’ Rights of 1981 which was ratified by Egypt in 1984. The African Commission on Human and Peoples’ Rights stated that:
“Civilians should not face trials before military courts.”
The Child’s Commission is a United Nation’s body tasked with the interpretation of the Rights of the Child. It emphatically stated that:
“Criminal proceedings against children must be avoided in military courts.”
Egypt ratified the agreement in 1990.
Comments of Amnesty International on February 19, 2007, regarding the referral of civilians to military courts wherein it stated:
“Trials which are held before military courts violate the fundamental requirements of international law for fair trials which include the right to trial before a competent, fair and independent court which has been established by law and the right to submit an appeal before a higher court.”
Some examples of what democratic constitutions say about military trials:
Austria, Article 84: Military jurisdiction, except in times of war, is repealed.
Greece, Article 96: Military, naval and air force courts shall have no jurisdiction over civilians.
Denmark, Article 61: The exercise of the judiciary power shall be governed only by Statute. Extraordinary courts of justice with judicial power shall not be established.
Turkey, Article 145 amended in 2010: Military justice shall be exercised by military courts and military disciplinary courts. Non-military persons shall not be tried in military courts, except during a state of war.
France, Belgium, Czech Republic and Honduras are some examples among other democratic countries which have repealed military trials.
Firstly, because military courts are exceptional courts. Military courts have been created for military personnel only. They are meant for those who are subject to military law. Military courts are only competent to try military crimes like evading conscription etc. or crimes which occur on military establishments like theft, sabotage of equipment etc.
Verdicts issued by any military court are not valid outside Egypt since they have not been issued by a regular judge. Judges of military courts are officers functioning under the command of the armed forces. Their training is based on a military perspective and they view an accused as though he is guilty.
Military upbringing, to which judges of military courts are subjected, entails cruelty as a form of discipline. As such, their verdicts are in contradiction of the law.
The factor of seniority plays an important role in military life. Some forces are considered to be superior to others (such as the air force and the military judiciary). This leads the court to view the accused as an inferior.
Secondly, military courts do not provide guarantees to a fair trial. It is a military establishment and not a civilian one. The life of one entering a military court is at peril. The procedures of a regular court are guided by law; for example, perusal of exhibits is the first procedure to be conducted in a regular court, then witnesses are questioned. As for a military court, first witnesses are heard and then exhibits are perused.
Military courts do not adhere to the code of criminal procedure and the procedures law. Defence cannot respond to the court in a military court. There is no defined mechanism to apprise the defence on cases and neither can it request a formal copy. Military courts do not allow journalists to cover the proceedings and as such, the element of transparency is absent.
The tribunal is supposed to be addressed as ‘Honourable Officers’. A military court does not provide adequate time to the defence to prepare for the case. A military court does not alter the course of investigation, it does not correct errors and does not interfere in the descriptions and records provided to them by the prosecution. The rate of acquittal in military courts is less than 2%.
Thirdly, military courts are not independent courts. Judges of military courts are appointed, promoted, transferred and discharged by the armed forces. Judges draw their salaries from the armed forces. Verdicts are not final and they can only be appealed after the Minister of Defence (executive authority) ratifies the verdict, amends it or annuls it.
No judge of a military court can issue a ruling of non-jurisdiction of the court for any case presented before it. Armed forces reserve the right to transfer any judge from the military judiciary to any other branch of the armed forces.
Translated from Egyptian Coordination for Rights and Freedoms