Jon Yorke

Jon Yorke

Dr Jon Yorke, Reader in Human Rights Law, School of Law

As a law student at Birmingham City University students will have an opportunity to engage with human rights issues, and participate in protecting them around the world. For more information on BCU’s Human Rights programmes contact Dr Jon Yorke at jon.yorke@bcu.ac.uk , follow him on twitter at @DrJonYorke or read his blog.

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The United Nations’ World Humanitarian Day, was a day in which the global human rights community was encouraged to envisage and reflect upon a future of peace, dignity and freedom. However, we were witnessing mass human rights violations inflicted by Egyptian peoples upon one another. The Egyptian military and security forces under the command of Adly Mansour, acting President of Egypt and Head Judge of the Supreme Constitutional Court, and the ousted President Mohamed Morsi and his Muslim Brotherhood’s Freedom and Justice Party, continue to cause mass violence across the country. Since the 3 July 2013 ousting of President Morsi, the civil upheaval has escalated into various conflict scenarios which have been reported by the world’s media and civil society networks. They have streamed to us the growing death rates and injuries, state curtailment of protests in and around Cairo and across the country, threats to the security of the state, threats to journalists, civil society and peace keeping missions.

On 19 August, Aljazeera News reported that the Head of Egypt’s armed forces, General Abdul Fattah al-Sisi, stated that the government will not hold the military forces back from engaging the “attackers that want to destroy Egypt.” Egyptian policemen are being killed in daily ambushes around the Sinai peninsula including a rocket propelled grenade attack at the Rafah border crossing. The Egyptian MENA news agency has reported that 612 detainees transported to Abu Zaabal prison suffered attacks, and that 35 people had been killed due to suffocation and being shot while trying to escape. The Anti-Coup Alliance puts the total death figure since 3 July at about 2,600 dead, with 600 killed on Saturday 14 August. However, “counting the casualties” has been problematic. Various journalists, such as, Bel Trew, in Egypt, have reported that the government is pressuring healthcare professionals to document that those who they examined, died as a result of suicide and not a trauma inflicted upon them by bullets or other brutal means. The reason for this medical determination is that it would make it more difficult to hold the government to account for the human rights violations at both the domestic and international levels. Many believe this is evidence of illegitimate state sponsored killing, terror and coercion.

The international community have been active through both multilateral and bilateral initiatives. The United Nations Secretary-General, Ban Ki-moon, has unreservedly denounced the human rights violations, and on 15 August, Mrs Navi Pillay, the United Nations High Commissioner for Human Rights, stated, “I deplore the loss of life and call on all in Egypt to seek a way out of the violence. I urge the Egyptian authorities and security forces to act with the utmost restraint. What is needed is a genuinely inclusive reconciliation. I therefore appeal to all sides to engage in urgent dialogue and avoid further violence and hate speech, with the aim of restoring constitutional order through free and democratic elections.”

The Peace and Security Council of the African Union, at its 390th meeting on 16 August, called upon, “all Egyptian stakeholders, including the interim authorities and the Muslim Brotherhood, to exercise utmost restraint in order to avoid further losses of human lives and destruction of property.” The Council further urged the Egyptian stakeholders to, “embrace the spirit of mutual accommodation, dialogue and national reconciliation and to refrain from any act of violence and retribution.” To facilitate these processes from the regional level, the Council established a, “High Level Panel for Egypt,” and called on all African Union bilateral and multilateral partners to support the work. The Panel will engage with the League of Arab States to form a strategic partnership to further their, “shared interest for a peaceful, stable and democratic Egypt.”

To establish peace in Egypt the interim authorities, under Adly Mansour and General Abdul Fattah al-Sisi, and Mohamed Morsi’s the Muslim Brotherhood, will have to shed their history of internal conflict, cease the violence and the continuation of the crisis, and come to a shared political understanding on democratic constitutionalism. This will be a difficult and nuanced political journey as the statements from both sides, with many examples of hate speech, reveal that neither is currently willing to accept the political legitimacy of either party. Each holds that the other is an illegitimate terrorist organisation.

Even so, once the hostilities have quelled, the question will be what mechanisms will be needed for Egypt to maintain peace. Will a Truth and Reconciliation Commission be the best option to provide a transparent and open process for the healing of the psychological and physical trauma? Or will an adversarial process be more appropriate and the use of the courts to punish those responsible for the human rights violations? A Truth and Reconciliation Commission was extremely effective in South Africa, under the vision of Nelson Mandela and the leadership Desmond Tutu from 1996-1998. However, it may be argued by some that in Egypt there is not a political will for this form of restorative justice.

The issue here is that in Egypt, sovereignty has been taken away from the ruling elite, and has been claimed by the people, but the people have not yet been able to solidify their will within a coherent (and legitimate) political regime. The current violence is the result of the sovereignty of the elite clashing with the sovereignty of the people. What this demonstrates is that the Arab Spring is still in motion, but the political mess and violence may continue as long as the Egyptians prioritize a “retributive” ideology over a “restorative” view of justice.

The crisis has somewhat shifted the focus away from the fact that the Egyptian courts are currently considering the appeal against sentence by Hosni Mubarak, the Fourth President of Egypt (1981-2011). Mubarak is currently receiving life sustaining medical treatment as he became ill during his trial. He was convicted of abuse of power and negligence for not preventing the killing of peaceful protestors during the 2011 revolution. The appeals timeframe is running out for the Egyptian courts to keep Mubarak imprisoned, and his sentence must be affirmed or quashed. Some journalists in Egypt are of the opinion that the courts will overturn his sentence in an effort to quell the uprising, and others say that a lot of evidence against him has been lost so the blame for the killings is difficult to substantiate.

Al-Jazeera report that 100s of “terrorists” have been arrested and await trial. The Egyptian courts will become inundated with new defendants charged with crimes against the state. It is crucially important that the Egyptian judiciary observe fair trials and human rights standards for any persons charged. For example, the African Charter on Human and Peoples’ Rights (1981) Article 3 establishes that every individual is equal before the law, and Article 7 affirms that everyone shall have the right to a fair trial. These rights are also protected within the Arab Charter on Human Rights (2004), Articles 12 and 13, and the League of Arab States’ protection of human rights includes:

Everyone has the right to a fair trial that affords adequate guarantees before a competent, independent and impartial court that has been constituted by law to hear any criminal charge against him or to decide on his rights or his obligations. (ACHR, Article 13).

The future of Egypt lies in it being able to cease the violence that is currently destroying the country, and for all parties to engage in dialogue. There needs to be a solidification of constitutional democracy in which all parties can participate. This will be a difficult challenge as it will mean the different sides putting aside the history of the conflict between the military and the Muslim Brotherhood from at least the Gamal Abdel Nasser revolution in 1952. South Africa overcame its traumatic history of the apartheid era, and while the history of this conflict is particular to Egypt, it must find a way of making a political transition and a political future.

No group should be excluded if they consent to peaceful dialogue and a democratic political process. All persons must be subject to the rule of law, and all those who break the law need to be brought to account. One of the difficulties resulting from the internal conflict will be the identification of “responsibility” for the crimes. Those who order the offences to occur (from the top political levels) and those who commit the killings and inflict inhumane treatment on individuals and groups need to be held to be responsible for their actions. Whether this will be done through an adversarial process or through a Truth and Reconciliation Commission, should be for the Egyptians to decide. Help from the international community should only facilitate an Egyptian healing of Egyptian wounds.

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Jon Yorke

Jon Yorke

Reader in Human Rights Law, School of Law