The trials of Mohamed Morsi

This was written for Middle East Eye and was originally published here.


The postponed and pending trials of former Egyptian President Mohamed Morsi have punctuated the news coming from Egypt in 2014. But below the transparent cover of legal procedure lies the base political desires of the judiciary: to marginalize and eliminate the defiant Muslim Brotherhood from Egyptian political life.

On 3 July 2013 Mohamed Morsi was removed as President of Egypt. Shortly thereafter, the new interim government detained him; he has been in the custody of the Egyptian state ever since. Later in 2013 the government began to level a series of charges against Morsi, leading to a string of various trials which can best be characterized by Morsi’s defiance to recognize the court as legitimate and the frequent postponements.

Here is a short update as to the status of the trials of Mohamed Morsi. He faces:

• A trial for espionage, which includes a total of 36 defendants. Most recently, it was postponed earlier this month and will resume on 14 September, at which time media will be allowed to cover the proceedings. The charge alleges the senior leadership of the Muslim Brotherhood conspired with foreign organizations such as Hamas and Hezbollah regarding terrorist activity within Egypt;
• A trial regarding the charges faced with respect to Morsi’s 2011 escape from prison. On 18 August the case was postponed to 23 August, and then was postponed again until 15 September. An additional 130 defendants await that trial date;
• A trial for the charge of inciting murder, postponed to 11 October. That trial includes 14 other defendants and is regarding the deadly protests in late 2012 outside the Ittihadeya presidential palace; and
• Two other charges: insulting the judiciary and economic fraud. Dates are not presently associated with the potential trials originating from these charges.

The noted frequent delays have been most often due to the availability of witnesses or due to the wishes of attorneys involved for the purposes of preparation.

It must be stated unequivocally: these trials are political. This past year has left little doubt that the Egyptian judiciary has become a political actor, and there is no reason to view these Morsi trials as in any way above the political fray. Egypt’s judiciary has not only tried hundreds of defendants at once during trials lasting only a few hours with no procedural protections, but has upheld many of the resulting convictions. 

The charges against Morsi range from the possibly sound pending the evidence presented (inciting murder against protesters at Ittihadeya, escaping from prison), to the incredibly weak (insulting the judiciary), to the fanciful (conspiring with Hezbollah to commit terrorism). 

The legal merit to these charges under existing Egyptian law at the times of commission will have little to no influence on the outcomes of the trials themselves. Ironically, last October I wrote about Morsi’s potential legal liability under Egyptian and international law regarding the death of four Shia shortly after he spoke nearby in the presence of rather explicit anti-Shia hate speech. That is not among one of the charges here, however. While that case would by no means be a ‘slam dunk’, it stands on more firm legal ground than several of the charges Morsi faces presently.

If the judiciary wishes for the law, and therefore their decisions, to give behavioral guidance to Egyptians and be respected by Egyptians, they must have judicial consistency - or at least provide legally defensible arguments therefor. No reconciliation has been made between the hundreds of death sentences handed down after a few hours of trial and a few dozen charges of insulting the judiciary requiring months of delay occurring within the same legal system and under the same laws. It is clear, then, that the structural health of the judiciary or the legitimacy of Egypt's greater legal system is not the primary concern with respect to these trials.

Viewing the subject more broadly, the trials of both former Egyptian presidents Hosni Mubarak and now Mohamed Morsi represent an ad hoc and ill-conceived version of transitional justice. Each deposed president has been strung along after many delays and multiple charges which are often peripheral to why they were so despised. This is either the result of an attempt to take extreme procedural care when trying a former head of state or a desire to neuter their respective followings by continually placing both men in the public consciousness as merely medium-level criminals, while also being careful not to create new martyrs. 

Regardless of the intention, the approach is ineffective. Those who support Morsi will clearly not disappear as a result of court verdicts, and those who were felool (derogatory term relating to the old regime) with respect to Mubarak’s government have already done their damage by continuing to occupy the machinery of the state to this day. Instead, these drawn-out trials, juxtaposed with the blistering speed of the trials of low-level Muslim Brotherhood supporters, merely give the impression that the judiciary does what serves its own political ends.

The immediate results of the charges against Morsi will follow the political prudence of the judiciary: the trials will be postponed when beneficial, the charges dropped when needed, and the defendant convicted when desired. 

As always, unfortunately, the real victims of the Morsi trials are the Egyptian people. While ideal transitional justice mechanisms remain unlikely to surface in Egypt in the foreseeable future, Morsi’s treatment by a demonstrably biased institution serves only to further polarize, not heal, a public in desperate need for moderate politics. This past year has given no evidence to even the most optimistic observer that the judiciary in Egypt can be a properly principled institution which can be so crucial to a democratic transition.

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. 

Pillar of autocracy: Egypt’s presidential election law

This post was written for Middle East Eye and can be found here.

Earlier this year Egypt’s interim government promulgated a new law to govern the country’s presidential election. That law regulates the administration, adjudication, and validation of the campaign period and electoral process of this week’s vote. The law has created a legal structure which has buttressed the political context created by the interim government to guarantee an electoral result amicable to the state’s interests.

Like any law, the presidential election law contains many unremarkable articles. For example, the total number of required endorsements needed to collect from the Egyptian people decreased from 30,000 for the 2012 presidential election to 25,000 this year. Nonetheless, in 2012 there were 13 candidates for the presidency; this year there are only two: former Field Marshal Abdel Fattah el-Sisi and Hamdeen Sabbahi. This likely has more to do with the process being viewed as a sham than the legal requirements for candidacy. However, the most important feature of the law is the new Presidential Election Committee (PEC), which is composed of present judicial Egyptian authorities who will act as an electoral management body.

The PEC has a broad range of powers and discretion: it alone creates a timeline of the election, approves the candidates, creates voter lists, administers penalties for interfering with the election, decides on polling locations, and reviews challenges to any election-related governmental action or claims of election fraud. Under Article 6, the PEC has the power to ensure equal treatment of the presidential candidates in state-owned media. Generally, it has broad control over the media, candidate campaigning, and campaign finance during the electoral period, and has prohibited campaigning two days before voters go to the polls.

Under the 2014 Egyptian constitution, polling stations will be supervised by members of the judiciary appointed by the PEC. The presidential election law allows for each presidential candidate to have a representative at each polling station, as well. Interestingly, the International Foundation for Electoral Systems (IFES) has suggested that the PEC should require the polling station official to initial or sign ballot papers before distributing them to voters as a protection against ballot counterfeiting. It remains to be seen if this recommendation is incorporated this week. After the election is over vote-counting will occur at the polling stations in front of the authorized observers such as the PEC and candidates representatives, and approved external actors such as the EU, the African Union, and Democracy International.

The most troubling characteristic of the presidential election law is that all decisions of the PEC are only reviewable by the PEC itself. No decisions can be appealed to an external judicial or government entity. Especially interesting, under Article 228 of the 2014 Egyptian constitution, this will be the only election managed by the PEC; future presidential elections will be managed by the national election commission (NEC), which will be in charge of Egypt’s legislative elections later this summer. The decisions of the NEC are in fact appealable. So why did the military-backed interim government create a body of named members of the maligned judiciary to have un-reviewable authority over only one election in which former Field Marshal Abdel Fattah el-Sisi has been heavily favored for some time? As the interim government could have easily allowed for appeals to the Supreme Constitutional Court, the answer can only be political in nature: the assurance of a state-desired result.

Beyond the law itself, there will be no surprise on 5 June if the results are heavily in favour of Sisi. Religiously-based parties, the Muslim Brotherhood, and April 6 have been banned and dissenters have been jailed, leading Marc Lynch, Director of George Washington University’s Institute for Middle East Studies, to write that the election is occurring “amidst a massively repressive atmosphere of intimidation, arrest, and institutional bias.” A free election cannot occur in the context of violence and fear which the interim government has created, as the opposition has no reasonable measure of confidence that free expression will not be met with imprisonment. Just last week hundreds more suspected Muslim Brotherhood members were thrown in jail.

Sisi does not support reconciliation with the Muslim Brotherhood (though the Brotherhood has expressed no interest in serious negotiation and will boycott the election), suggesting ongoing tensions in the immediate future. Sisi also supports the protest law which has been used continuously to arrest human rights advocates and regime opponents. The former field marshal also views the legitimate security threats to the state stemming from Sinai, Libya, and Syria as part of a war against terrorism. This ‘war on terror’ rhetoric of the interim government and Sisi alike may explain the apparent need felt for armored vehicles from the UAE in order to maintain order during this election.

The presidential election law has not itself created a fraudulent election. However, the legal infirmaries of the law, combined with an electoral context of fear and oppression, will insure that this week’s vote will not be free and fair: many regime opponents are in jail or banned from the political process, dissent has been criminalised by the protest law, and there exists no recourse for electoral decisions made by the PEC. Elections are necessary, but not sufficient for a democratic state: the people must be free to express their opinions and openly hear the opinions of their compatriots in order to make an informed electoral decision. That has not occurred over the past seven months and will not occur this week, either. 

Episodes of oppression: the banning of April 6

This was posted on Middle East Eye and can be found here.

Last month, the April 6 Youth Movement was banned in Egypt for allegedly engaging in espionage and defaming the Egyptian state. The informal protest group likely caught the ire of the interim government by actively opposing its actions.

While the group has not kept quiet since the ban, urging the EU to cancel their observation of Egypt’s upcoming presidential election and contemplating actively campaigning against Sisi, the short-term future of open dissent in Egypt is bleaker than ever.

April 6 leaders Ahmed Maher and Mohamed Adel were sentenced to three years in prison in December under last November’s Protest Law which requires, among other things, government approval for gatherings of more than 10 people in a public place. Of course, many countries and international agreements (Article 19(3) of the International Covenant on Civil and Political Rights, for example) recognise reasonable time, place, and manner restrictions on free expression.

However, Egypt’s protest law should be, and could be, much more narrowly tailored as to not prohibit peaceful and legitimate political expression - vital for an open and democratic society.

However, the banning of April 6 did not result from the Protest Law. It was instead a result of a lawsuit which alleged the group was guilty of espionage and defaming the Egyptian state. The first charge is a result of an accusation that April 6 received funding from foreign sources. Accusing the movement of receiving foreign funds is not new, and has been refuted in the past.

The second charge is merely a modern equivalent of violating what are called laesa maiestas laws, which unquestionably attempt to limit legitimate political dissent by shielding the state from criticism. Such criticism is necessary for citizens to be able to make decisions on their approval or disapproval of state actions. As such, this is a clear violation of the ICCPR’s Article 19 and the Egyptian constitution’s Article 65 on free expression.

Moreover, April 6’s lawyers claimed they were not notified of the judicial hearing in question, a clear violation of Egypt’s own due process standards, including the constitution’s Article 96 guaranteeing the right of legal self defense. Thus, this ruling is both procedurally and substantively problematic.

The ruling should have been no surprise, however. The banning of April 6 marks only the latest step in the interim government’s oppression of all forms of dissent.

The past 10 months have seen the following episodes of oppression: the violent clearing of the Raba’a and Nahda sit-ins, the imposition of a curfew and a state of emergency, the aforementioned Protest Law and related prosecutions, the raid of Egyptian Centre for Social and Economic Rights, the declaration of the Muslim Brotherhood as a terrorist organization,the Al Jazeera trial, the mass death sentences of suspected Muslim Brotherhood members,the Terrorism Law, and now the banning of April 6. Many commentators have separated these actions into a ‘War on Islamists’.

However, if these twin wars were actually being waged by the interim government, the Tamarod protest movement and the Salafist Nour Party would be been banned and subject to similar state oppression as April 6 and the Muslim Brotherhood, respectively. Instead, both groups have chosen to be at the right hand of the government instead of in its path. As such, it is clear that these actions are part of a singular effort to silence all forms of dissent against the state. There is no ideological focus or reason; the most relevant division in Egypt is between supporters of the autocratic regime and its opponents.

A more nuanced analysis of the progression of the marginalization actions taken by the interim government shows an important trend. The actions begin as mostly executive (the clearing of the sit ins, the state of emergency), transition to legislative (the protest law, the terrorism law), and have now entered a judicial stage (the mass death sentences, the Al Jazeera trials).

While the lack of existence of a legislative branch makes the first transition less institutional than the second, each step is indicative of a further legalization of the authoritarian actions of the regime.

This step-wise process shows that the present interim government is methodically seeking long-term legitimacy by utilizing instrumentalities of each constitutional branch of government to meet its ends at silencing dissent. While this does not make the banning of April 6 a necessarily predicable move, it offers contextualization within a framework which explains the otherwise capricious actions of the interim government.

This legal entrenchment of the authoritarian suppression of dissent will create more generational problems for Egyptian democracy, as now even more laws and legal institutions must be repealed and reformed to allow for institutional democracy to consolidate. In the short term, the upcoming presidential and legislative elections will test first whether the interim government will allow free and fair elections.

They will also show how willing Egyptians are to again risk life and limb to oppose an authoritarian government. The banning of April 6 has shown little reason to hope the interim government has any intention to allow for open and free political debate and little hope that the Egyptian people will be left with political space in which to peacefully dissent.

Could a Maliki Win Hurt Democracy in Iraq?

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


Iraqis went to the polls on April 30 to elect a new Council of Representatives, which will produce a new government and prime minister. These elections come in the face of intense sectarian violence and bring forth deeply important questions about how the government should address these and other issues moving forward. These questions will not be answered in a novel way, as present Prime Minister Nouri al-Maliki’s political opportunism has closed his grip on the Iraqi structures of governance, leaving little chance for an electoral rout of his State of Law alliance, spelling trouble for the future of Iraqi democracy.

Maliki, a man deeply involved in political Shiism, rose to power during the US-led occupation of Iraq which produced a new Iraqi constitution and quick national elections. Since that time, sectarian violence has played an important role in Iraqi politics—which Maliki and other political elitesexacerbated for political gain. Maliki was emboldened by what he perceived as his success in mitigating violence after 2008. Since 2010, he has been effectively consolidating political power, centralizing authority over the military, and undermining judicial independence. With this tightening grip, Maliki has sought to marginalize political opponents, regardless of sect, under the name of national security and a fight against terrorism. 

As Zaid Al-Ali describes in The Struggle for Iraq's Future, Iraq has tried several electoral variations within proportional representation, such as open lists and closed lists, but have seen the original US-based politicians return to power each time. Maliki’s State of Law alliance saw an embarrassing defeat at the polls in 2010, but the prime minister was able to ensure he stayed in power with the help of political de-Ba’athification and a judicial decision allowing for the formation of new coalitions after the election results have been announced. In this election cycle, Iraq’s entire Independent High Electoral Commission resigned to protest political interference in the electoral process. Maliki forced the commission members to rescind their resignations. Political corruption, unfortunately, is the norm in Iraq, not the exception.

Despite the past year’s painful uptick in violence, and its likely effect of keeping many Iraqis home out of fear, Maliki has portrayed himself as the candidate for security. The appeal of stability is an important strength in the face of growing fear and prominence of the Islamic State of Iraq and Syria (ISIS)—an al-Qaeda-related group located around the porous border between Iraq’s Anbar province and a troubled Syria. When presented with shortcomings in other areas, Maliki has blamed his government for foiling his legislative attempts at governance. It is true that the previous National Unity Governments (GNUs) constrained effective governance more than they alleviated extremism. This trend partly came about because politician-brokered agreements in Baghdad’s Green Zone have no influence over the actions of the various militias. But it also resulted from governments that were formed specifically on ethno-religious grounds, with no regard for individual competencies or abilities to govern. For these reasons Maliki will aim to form a more unified governing coalition in the coming months. Less consequential portfolios and other positions may be given to outsiders to create the façade of multipartisan governance. 

Structurally, Maliki has taken advantage of his ability to influence the judiciary, as well as the wide reaching membership of the GNUs to decrease both the presence and effectiveness of legislative opposition. He has alsogained control over government agencies which have previously been independent or demarked for legislative oversight in the constitution. Because the president of Iraq is mostly a figurehead, Maliki’s undermining of judicial independence and the ineffectiveness of the legislature leaves the prime minister as the sole power in Iraq’s federal government, nullifying the constitution’s aim at a separation of powers. Though Maliki’s alliance continues to win elections, the context is important. While reports of outright fraud have been low in Iraqi elections post-2003, the presence of widespread corruption, continued violence, and a lack of electoral andcampaign finance regulations bring into question whether today’s election can be considered free and fair.

Nonetheless, Maliki’s alliance will likely get largely undivided support from Iraqi Shiites, as well as other Iraqis who see the prime minster as the individual most able to keep Iraq together and return it to the relative calm of 2009. That view may have validity, as a third Maliki term will likely see questions of Iraq federalism sidelined while political opponents and Sunni militias will be pursued ruthlessly. However, the unfortunate ramification for Iraqi democracy will be to reward Maliki’s cooptation of democratic institutions and the politicalization of the Iraqi military. The isolation of political influence for a young democracy sprung out of authoritarianism is deeply important, as the fear of slipping back toward an illiberal state is real. However, Maliki has shown a propensity for circumventing institutional boundaries to achieve his goals and has received no international scorn to dissuade him. There is little reason to assume the next four years will be any different.