Egypt: Military Power Grab Creates Conditions for Abuse

Decrees issued by the Egyptian ruling military council and the Justice Minister in recent days sharply reduce civilian oversight of military actions, creating conditions ripe for further serious human rights violations, Human Rights Watch said today.

A June 4, 2012 Justice Ministry Decree empowers the military to arrest civilians. On June 17, the ruling Supreme Council of the Armed Forces (SCAF) issued new Constitutional Declaration provisions that set out an expanded role for the military in civilian law enforcement, including continued trials of civilians before military courts. And a June 18 decree restructuring the National Defense Council gives the military expanded decision-making powers on internal as well as national security issues, Human Rights Watch said.

"The generals' relentless expansion of their authority to detain and try civilians now goes far beyond their powers under Hosni Mubarak," said Joe Stork, deputy Middle East director at Human Rights Watch. "These decrees are the latest indication yet that there won't be a meaningful handover to civilian rule on June 30."

Increasing military authority over law enforcement will invite continued abuses from an unaccountable military, Human Rights Watch said. Abuses by the military over the past year-and-a-half, including torture of protesters in detention and excessive use of lethal force in dispersing protests, have gone unpunished because civilian prosecutors do not have jurisdiction to investigate complaints against military personnel. That leaves victims of human rights abuses without a remedy, in violation of international law, Human Rights Watch said.

The Justice Ministry Decree
On June 13, the Official Gazette published Decree No. 4994, which Justice Minister Adel Abdel Hamid issued on June 4, four days after Egypt's longstanding State of Emergency expired.

The decree states:

Without prejudice to the mandate set out in the Code of Military Justice Law 25 of 1966, military police and military intelligence officers granted a law enforcement role by the Minister of Defense shall have judicial arresting authority for crimes committed by non-military personnel.

The decree says it would apply to crimes set out in chapters 1, 2, 2bis, 7, 12, and 13 of the Penal Code. These include crimes such as the one described in article 102 ("spreading false information with the purpose of affecting national security"); article 98(c) ("operating an unregistered association"); article 133 ("insulting a public official"); and article 184 ("insulting the military or parliament").

On June 14, the SCAF general for legal affairs, Gen. Mamdouh Shaheen, appearing on the live Egyptian television show Al Qahira Al Youm, said this decree was "for the general good... so that we can organize and bring security to the street. The good of the country requires a presence for the armed forces in the street to protect the country since the police are still unable to fully perform."

Lawyers and human rights organizations have filed at least five appeals before the Council of State, Egypt's highest administrative court, contending that the Justice Minister had exceeded his authority in issuing this decree. The judge assigned to the case held the first hearing on June 19 and the judge adjourned the trial to June 26.

"This decree authorizing military arrests of civilians appears to be an attempt to embed exceptional emergency law-like powers into regular law," Stork said. "The result is likely to be a continuation of abusive law enforcement practices."

Lack of Civilian Oversight and Military Accountability During Policing
Decree No. 4994 is of particular concern because the Egyptian military considers that its arrests of civilians constitute sufficient jurisdictional basis to then bring those civilians before military courts. International human rights law applicable in Egypt prohibits trials of civilians before military courts. Moreover, the military's close 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.

Human Rights Watch has documented dozens of cases of torture by the military during arrests and in detention, most recently in Abbasiya in May, and before that, brutal beatings of male and female protesters in December 2011. On March 9, 2011, military officers subjected female protesters in detention to virginity tests. In October, Human Rights Watch documented the excessive use of force by the military in policing protests, as well as apparent extrajudicial killings of protesters at Maspero, the state media center in downtown Cairo.

Decree No. 4994 also provides that chapter 2 of the Code of Criminal Procedure will regulate the involvement of military officers. Article 23 of chapter 2 provides that law enforcement officers are subject to oversight by the public prosecutor, who can order investigations in cases of violations or infractions.

However, the SCAF contends that the public prosecutor does not have oversight over military personnel and that only the military prosecutor can initiate an investigation into any violations on their part. As reflected in the latest amendments to the Code of Military Justice, passed on May 6 by parliament, and in the discussions in parliament with General Shaheen that preceded parliament's action, the military has refused to allow civilian prosecutors to determine when military courts have jurisdiction, insisting that only military prosecutors are competent to make that determination.

The absence of any civilian oversight of the military's involvement in law enforcement and the fact that civilian prosecutors cannot investigate military abuses has already led to a climate of impunity that encourages such abuses, Human Rights Watch said.

Legislative Developments Expand Military Role
The SCAF's military decree of June 17, which it called a "Constitutional Declaration," greatly expands the military's powers in law enforcement. Article 53 bis(2) states that:

[I]n cases of internal disturbances that require the intervention of the armed forces, the president may ask the SCAF for permission to order the armed forces to share in law enforcement duties and the protection of public institutions. The mandate and tasks of the armed forces, as well as regulations on the use of force, arrest, detention, jurisdiction, and accountability mechanisms shall be determined by law.

The SCAF has frequently considered peaceful protests criticizing its policies to be a threat to internal security.

On June 18, the Official Gazette published another previously unannounced military decree re-structuring the National Defense Council to augment its yet undefined mandate on "national security issues." Under the decree, the council has 11 military and six civilian members and can only make decisions through absolute majority, thereby giving the military a controlling role on issues of security, further limiting civilian oversight.

In the June 17 Constitutional Declaration, which came three days after the SCAF declared the recently elected parliament dissolved, the military granted itself legislative authority until a new parliament is elected. Since it took over legislative authority on February 13, 2011, the military has issued a number of laws that violate Egypt's obligations under international human rights law. In April 2011, the SCAF issued Law 34/2011, which effectively criminalizes the right to strike. In September 2011, the SCAF expanded the scope of application of the Emergency Law to include for the first time a charge limiting freedom of expression - "spreading false information."

The SCAF contends that the Code of Military Justice is a sound law and has used it to justify the trials of at least 12,000 civilians before military courts since it took power in February 2011. It clearly intends to rely on this law to protect its prerogative of trying civilians before these courts, Human Rights Watch said.