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Report: The past and present of military jurisdiction


July 12, 2016
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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.

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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.

Stage 1:

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.

Stage 2:

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.

Stage 3:

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:

  • Numerous civilians were referred to military courts in 1954 after the Mansheya Accident. They were sentenced to life imprisonment and seven were handed death sentences.
  • In 1965, thousands of Muslim Brotherhood members were accused, including women, in four main cases. Sentences issued in these cases are as follows:
    • Case 1: 7 persons were sentenced to death; 26 to life imprisonment; 7 persons to 15 years in prison; and 4 persons to 10 years in prison.
    • Case 2, 3 and 4: 99 persons were sentenced to imprisonment for periods ranging from 7 to 15 years.

Stage 4:

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:

  • From 1992 to 2000: 36 cases were referred to military courts, including the Afghanistan Returns’ case in which 1136 were accused. These cases culminated in the issuance of 94 death sentences; 701 persons were sentenced to prison and 341 were acquitted.
  • In 2001, 22 Muslim Brotherhood leaders were referred to military courts; 5 persons were sentenced to 5 years’ imprisonment; 11 persons to 3 years; and 6 persons were acquitted.
  • In 2007, a presidential decree issued by President Hosni Mubarak sentenced 25 persons to prison for periods ranging from 3 to 10 years.

Stage 5:

The period after the January 25, 2011, Revolution (Rule by Supreme Council of the Armed Forces).

  • From January 28, 2011 to June 29, 2012, 8,071 civilians (minimum estimate) were arrested and 1,270 were handed out varying sentences ranging between 1 and 15 years’ imprisonment on different charges. This statistic is according to the estimates of the Supreme Council of the Armed Forces which ruled Egypt during the aforementioned period.

Stage 6:

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.

Stage 7:

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:

  • 7,800 civilians (minimum estimate) were tried in military courts between October 2014 and June 2016. Most accused were sentenced after mass trials which violated the most basic rights of fair trial procedures. Some courts relied on confessions obtained under duress.
  • The courts sentenced 86 minors (minimum estimate) in addition to students, professors and activists some of whom were victims of enforced disappearance and torture.
  • Military courts have issued 21 death sentences from October 2014 to date.
  • A military court sentenced to 3 years’ imprisonment a minor who was 15 years old at the time of his arrest during a mass trial of 27 accused persons. The court alleged that the aforementioned accused was a participant in an illegal demonstration.
  • Six men were hanged pursuant to verdicts issued by a military court in August 2014. The sentence was executed in May 2015. There was evidence which indicated that some of the accused were in custody when their alleged crimes took place.
  • 1,478 accused from al-Minya governorate were referred to military courts which conducted mass trials on charges of raiding churches, homes of Christians and targeting their business interests in August 2013. Hundreds of residents from al-Minya were retroactively referred to military courts on charges of participating in the 2013 acts of violence.
  • In February 2016, a military court erroneously sentenced a 4-year old child after it conducted a mass trial of 116 demonstrators who belonged to al-Fayum governorate. Their case was referred to a military court pursuant to al-Sisi’s presidential decree.
  • A military court in Alexandria delivered a preliminary death sentence to 7 accused on February 1, 2016, in the Kafr al-Sheikh case. The court upheld the death sentence on March 2, 2016.

 

Military judiciary in the democratic world

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.

 

Why do human rights organisations demand the repealing of 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

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