A Renewed Case for a Syria Tribunal

This post was written for the Atlantic Council and can be found here.


Last month, China and Russia predictably vetoed a French UN Security Council proposal to refer Syria to the International Criminal Court (ICC). Without Syria’s ratification of the Rome Statute, the Security Council is the only body that can refer investigation of the conflict to the ICC. Although this window has effectively closed, other options exist to hold accountable the perpetrators of the gross human rights violations that have occurred in Syria over the past three years. 

In the spring of 2012 at Syracuse University College of Law, Professor David Crane began a new course, which would become the Syrian Accountability Project (SAP). Professor Crane is a former Chief Prosecutor for the Special Court in Sierra Leone, the tribunal which held former Liberian President Charles Taylor responsible for war crimes. The task of the students in that course was to connect news reports, social mediadocumentation (viewing pictures on Twitter and watching videos on YouTube was perhaps the most difficult task), and other data to attempt to corroborate claims and create a comprehensive narrative of the Syrian Civil War, from the beginning to contemporary accounts. The goal was accountability: the SAP sought to identify individuals who either commanded or performed major acts of violence. Next, the SAP sought to match each entry in its database with applicable law to identify possible violations of international humanitarian law or the Syrian penal code. 

Since then, the international community’s attention toward Syria has waned. Nonetheless, the Syrian people continue to languish in one of the most devastating and thoroughly documented man-made tragedy in our lifetime. The world at large has done nothing to seek justice for Syria.

The SAP nonetheless continued these efforts over the past two years, bringing on other esteemed international jurists and organizations to consider the legal options for transitional justice once the widespread violence ends. Last year this group released the Chautauqua Blueprint, a draft statute for a Syrian tribunal for the prosecution of human rights atrocity crimes. The document is much like a legal Mad Lib, allowing specific decisions to be made at a later time. The drafters of this document understand first-hand the glacial pace of international bureaucracies and internal negotiations when creating transitional justice mechanisms. As such, they attempt to help provide a key structural framework to accelerate the process in any way, because justice delayed is justice denied. 

At the release of the document, the drafters acknowledged that the political context needed for such a transitional justice mechanism might not materialize anytime soon—or perhaps ever. Religious extremism, the Saudi Arabia-Iran regional rivalry, and the US-Russia international rivalry have exacerbated the conflict, made unlikely a diplomatic resolution, and prevented international intervention, respectively. That same political context has kept the conflict going for three years, with no hope to curb the massive loss of home and life, and has now prevented the ICC from gaining jurisdiction over the country. 

Previously, ICC prosecutor Fatou Bensouda stated she would support a special tribunal for Syria if the ICC was not granted jurisdiction over the conflict. This option is not without critics, however: the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia were hugely expensive endeavors that give pause to many when discussing transitional justice. However, the structures recommended in the Chautauqua Blueprint more closely resemble the Special Court in Sierra Leone, which was one of the least expensive ad hoc tribunals to date. The international community also now has greater experience in creating and managing a variety of ad hoc trials, allowing for the implementation of best practices and a more efficient justice institution. 

Any transitional justice mechanism for Syria cannot begin functionality until a majority of the violence has ended and either a peace is brokered or a side is vanquished; sovereignty dictates that those in power must accept such a judicial mechanism. Any such structure would benefit from the incorporation of the Syrian penal code under the principle of complementarity and charge the gravest crimes against humanity as representative of the acts that have been occurring throughout the Syrian Civil War. A formal transitional justice institution should also complement an iteration of a truth commission which would concentrate on restorative justice for victims. Most importantly, a tribunal for Syria must be able to seek the justice which the Syrian people want. The Chautauqua Blueprint is an example of just that structure. 

Last week the international community again failed the Syrian people by not submitting the country to the jurisdiction of the ICC. The world has been unable or unwilling to stop the violence and now appears unwilling or unable to hold the perpetrators of that violence accountable. An ad hoc criminal tribunal for Syria, however, can still help bring justice to a people that have been victimized for so long. It is, quite honestly, the least we can do. 

Human Rights Treaties in Egypt: as Good as the Government that Upholds Them

This post was written while at the Tahrir Institute for Middle East Policy and can be found here.

Egypt’s constitution has recently garnered praise for its “commitment to abide by international human rights treaties signed by Egypt.” Yet a close analysis shows that such praise may yet be premature; the commitment can be easily circumvented by Egypt’s soon-to-be elected House of Representatives.

The relevant section of the new constitution, Article 93, states in full:

“The state is committed to the agreements, covenants, and international conventions of human rights that were ratified by Egypt. They have the force of law after publication in accordance with the specified circumstances.”

Plainly, ratified human rights treaties are now considered Egyptian domestic law. Nathan J. Brown and Michele Dunne call this article “a potentially major innovation,” but note that it is only as good as the courts which interpret it. Heba Morayef of Human Rights Watch noted that the article offers Egyptians stronger human rights protections than the 2012 constitution.

This constitutional article incorporates international treaties as part of Egyptian domestic law without the requirement of enabling legislation, exhibiting the characteristics of legal monism. In a monist legal system, the judiciary can generally interpret and apply international law as it would domestic law. Like other legal monist countries, Article 151 requires the legislature to approve treaties in order for them to be ratified.¹ This approval is taken as the requisite sovereign action of affirming the role of a treaty as law within the state.

The key issue here, then, is how a treaty functions as a statute within a domestic legal system. The Egyptian constitution is unusually lucid on this point: treaties have the force of law. (That is, international treaties are to be treated the same as legislation.) As such, these treaties enter Egyptian law as statutory law; they are subject to the legal concept of leges posteriores priores contrarias abrogant, which holds that if two laws are passed which are prima facie contradictory, the law passed most recently is enforced.

Of course, in most legal systems a more recent statute is often interpreted in an attempt to avoid the implicit repeal of a previous statute. Moreover, the rebuttable presumption of conformity² assumes that domestic legislation is intended to comport with the treaty obligations of the state. What is clear, however, is that the Egyptian legislature can nullify the force of previously ratified human rights treaties by passing legislation which explicitly contradicts them.

Brown and Dunne are certainly correct in pointing out the importance of the judiciary in enforcing the statutory role of international human rights treaties within Egyptian domestic law. However, perhaps just as important will be the role of the House of Representatives. While any political discussion must wait until the body is actually elected, the House has the effective ability to negate the legal effects of a ratified treaty by a simple majority vote.³

It is possible, however, that such a statute would be considered complementary legislation under Article 121, as it may be construed to “organize the rights stipulated in the constitution.” In this case, such a statute would require a two-thirds majority approval in the House. Nonetheless, this is still quite different from a formal amendment process to change the constitution, which is found in Article 226. That article states that a constitutional amendment must be approved by two-thirds of the House and pass a public referendum.⁴ While it is unclear how exactly legal challenges of this nature would play out, it is clear that Article 93 can be effectively appealed without consulting the Egyptian people, in contrast with any other constitutional article. As Article 93 has been widely considered a high point in the constitution, this subtle fact of the Egyptian constitution is important to note.

This analysis thus far has ignored the Article 2 requirement that legislation is to be crafted with sharia as a source of inspiration. While this language has evaded precise definition during its decades of presence in various Egyptian constitutional documents, its place in the constitution undoubtedly holds it superior to the statute-equivalent ratified human rights treaties. That is to say that international human rights conventions are held inferior to Egypt’s Supreme Constitutional Court’s interpretation of Article 2.⁵

While this is important to note when considering legal challenges in Egyptian courts, the Supreme Constitutional Court generally does not strike down legislation for violation of Article 2. Additionally, as the Article 93 text specifically mentions treaties, it is silent regarding customary international law. This means that enabling legislation in the House is possibly required to bring in customary international law in as part of Egyptian law. As such, international norms not codified in treaties ratified by Egypt have no domestic legal effect.

What does this all mean for the average Egyptian? Right now the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (with important reservations) are all a part of Egyptian law. But Egyptians will want to be careful about those for whom they vote over the next few months—they will be empowered with the ability to negate these documents.

Former President Morsi’s Legal Liability for Incitement to Violence

This post was written for the Tahrir Institute and appears here.


In early September, former Egyptian President Mohamed Morsi and others in the Muslim Brotherhood were charged under Egyptian domestic law withincitement to the murder of protesters in December 2012. Egyptian authorities have provided no details of the evidence against him. However, Morsi and the Brotherhood were responsible for several other instances of incitement during their year in power, and a legal case can be made specifically regarding the incitement of violence against Shiites. 

Morsi neglected to enforce domestic criminal law by failing to denounce inciting speech by Muslim Brotherhood members and those in his presence during the Egypt-Syria Solidarity Conference on June 15, 2013. In the process, he violated international law and international obligations to which Egypt is bound. The result of Morsi’s abdication of duty was the killing of four Shiites in Egypt. 

The most widely accepted international standards of free speech are found in the International Covenant on Civil and Political Rights (ICCPR). Egypt is one of 167 states parties to have signed and ratified the 1966 ICCPR. Article 20 in the ICCPR states, “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Article 20 goes on to name group hatred as to be prohibited by law. The language here is strong: an international treaty is directing domestic legal prohibitions of expression. This is not suggestive or aspirational language most commonly found in international documents; this language is mandatory.

Next, the Convention on the Elimination of All Forms of Racial Discrimination (CERD), also a 1966 document, has 175 states parties, one of which is Egypt. The CERD says that all states parties shall declare punishable by law “all dissemination of ideas based on incitement to racial discrimination, acts of violence or incitement to violence against any group of persons of another color.” The document goes on to proscribe any organizations or governmental institutions themselves which may create such utterances. The CERD is applicable here because in 2008 the UN Human Rights Council (UNHRC) passed a resolution that reaffirmed that the CERD was equally applicable to incitement of religious hatred.

In 2011 the Organization of Islamic Cooperation (of which Egypt is a member) introduced a resolution, which was adopted by the UNHCR, on discrimination and free speech. Point 3 of the resolution condemns “any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence…” Point 5(g) of the resolution demonstrates “…the need to combat denigration and negative religious stereotyping of persons, as well as incitement to religious hatred…”

The preceding sources all point to an international legal consensus on the issue of incitement—they all condemn the advocacy of group hatred. It is important to note that an imminent physical manifestation of such hate is not required—the intent to cause hatred toward a group itself is proscribed. Hate speech can be restricted for reasons such as respect for the rights of others and public order. Incitement to discrimination, hostility or violence are also prohibited.

However, international standards are not the only relevant measures of incitement in Egypt. A part of Egypt’s complex legal system is the Penal Code, which dates from 1937. The Code is periodically updated andremains in force to this day. The Code criminalizes the use of religion in public incitement or the mocking or ridicule of religion in public. Specifically, article 98(f) proscribes the use of religion in propagating by speech extremist thoughts aimed at instigation division or disdain, and article 176 criminalizes the incitement to hate or deride a sect of people. 

The 2012 Annual Report of the United States Commission on International Religious Freedom pointed out several incidents in 2011, one of which Morsi was in the presence of incendiary speech, but failed to denounce it. The report notes an October 19 statement against Jews, and several statements against Copts, such as on November 4 and 22. The 2013 Report found no improvement, and wrote that in the early months of 2012, an increase in government-funded mosques contributed to sectarian tensions. 

Ikhwanonline reported that high-ranking Muslim Brotherhood members including Dr. Mohamed Wahdan stated at an event in April 2013 that, “that the Egyptian people and government would not allow the spread of Shiism in Egypt.” Similar comments were made at the Egypt-Syria Solidarity Conference on June 15, 2013. Morsi was in attendance, and the conference was initiated by prominent Egyptian Sunni clerics. Several clerics “labeled Shiites as ‘impure’ or ‘filthy’ and protesters as infidels.” Specifically, Ali Ahmed Salus referred to the Shia Assad regime in Syria as “atheists.” Mohammed Hasaan asked Morsi to not open the gates of Egypt to “deserters,” a derogatory term for Shiites. Hasaan further noted that jihad is the obligation of able Muslims. Mohammed Abdel Maqsud spoke of June 30 as a fight against infidels. Former President Morsi spoke last and did not denounce any such remarks. While Morsi avoided direct incitement, his Muslim Brotherhood encouraged listeners to engage in jihad against theShiite government in Syria.

The language used by Muslim Brotherhood-associated clerics and those who spoken in front of former President Morsi falls on the president’s responsibility to denounce such incitement. A head of state is expected to hold such speakers responsible under the domestic Penal Code, and such an omission subjects the Muslim Brotherhood and Morsi to international legal liability.

The language heard at the conference clearly constitutes the use of religion in speech for extremist thoughts aimed at instigation division or disdain, which is specifically proscribed by Egypt’s Penal Code Art. 98(f) and 176. As the CERD clearly proscribes groups (such as the Muslim Brotherhood) which may create utterances that disseminate ideas based on incitement to group-based violence, the Muslim Brotherhood is in violation of that document, and should be subject to legal punishment. It is important to repeat that Morsi is a member of the Muslim Brotherhood. Further, the language also violates Points 3 and 5(g) of the Resolution Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief. They proscribe advocacy of religious hatred that constitutes incitement to discrimination, hostility, or violence, and requires the government to combat religious denigration and incitement to religious hatred. Lastly, the ICCPR, a legal treaty signed and ratified by Egypt, requires that state parties prohibit advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence. 

Morsi’s lack of enforcement of both domestic and international law was not harmless. Eight days after the speeches at the stadium four Shiites were lynched in a Giza village. Human Rights Watch (HRW) wrote that Morsi, “failed to make it a priority to create a strategy to protect religious minorities and has failed to speak out against months of hate speech against Shia.” A local village official told the Arab Network for Human Rights Information (ANHRI) the Shiites were targeted because, “The sheikhs from the mosques went out last Friday and said that Shiites are apostates and we have to kick them out of the village.” HRW noted the actions of the police to protect the Shiites in the wake of the incitement was insufficient, as were the responses from both the government and the Muslim Brotherhood. The Muslim Brotherhood has been responsible for religious-based incitement to violence in the past, as well as immediately before the bloody killings of June 2013. Former President Morsi knew, should have known, or had a substantial certainty that violent actions would follow from the words of his supporters spoken in his presence—yet he did nothing. 

As such, by not denouncing the inciting speech of those from his own party or those who spoke directly before him at a major conference, former President Morsi failed to enforce domestic law and failed to uphold his international legal obligation as a head of state under the ICCPR and other international obligations to which Egypt is a party. 

Equal and Inalienable: Natural Human Rights and the ICCPR

This paper about a possible scientific basis for natural human rights can be found here.


Abstract:      

This paper first seeks to establish a scientific basis for the finding of natural human rights and how rights relate to morals, law, and culture. Next, the paper focuses on the derogation mechanism of article 4 of the ICCPR, compares derogable rights and non-derogable rights, and investigates the assumptions of derogation. Lastly, the paper finds an over-inclusive nature of the ICCPR, which results in the artificial imposition of extra-natural rights, leading to low levels of any compliance. Thus a lack of compliance to the ICCPR in whole violates the actual natural human rights which are enumerated. It suggests that an international human rights regime which is restricted to demonstrable natural human rights, without derogation, and including more forceful enforcement mechanisms would be a more effective tool of promoting human rights throughout the world.