Egyptian military courts and civilian defendants

Al-Monitor is running this piece about the use of military courts to prosecute civilian defendants in Egypt. Defenders of the recent decree expanding this power to include attacks on a broad range of public facilities say it's necessary because the understaffed civilian courts are overloaded with terrorism cases and, anyway, military judges are independent and there's a right to appeal, just as in the civilian court system. From the article:

Mohammad Zare, a human rights activist and head of the Arab Organization for Penal Reform, told Al-Monitor that the Egyptian civil courts are able to deter and discipline terrorists without resorting to military justice. “The alternative is to increase the number of judges and not refer some cases to the military courts, which undermines and infringes upon the powers of the judiciary system,” Zare said.

Article 204 of the Egyptian Constitution stipulates that the military court is exclusively competent to adjudicate all crimes pertaining to the armed forces, and no civilian shall face trial before a military court, except for crimes that constitute a direct assault against military facilities or their equivalents.

The expression “or its equivalent” raises a constitutional debate about the public facilities law and the military trial of assaulting parties. [Legal expert Mahmoud] Kebaish said that the fact that the armed forces are assuming the role of protecting public facilities renders these facilities military ones, and the military trials of the assaulting parties shall be thus deemed constitutional.

However, Zare believes that the law is unconstitutional since the expression “or its equivalent” may not be construed as public utilities or transportation, or government services used by millions of citizens on a daily basis, since they are inherently different from military facilities used almost exclusively by the armed forces.

“There are fears that the application of the law will expand if public facilities are considered military ones," Zare said. "Any quarrel between two students at university or between two public transportation passengers that causes any damage to the premises, shall be deemed a crime whose perpetrator shall be referred to the military court.”

Human rights law strongly disfavors the use of military courts to prosecute civilians. Two members of the UN Human Rights Committee have taken the position that there are no circumstances under which civilians can be prosecuted in such a court. See Musaev v. Uzbekistan (June 6, 2012) (Fabián Salvioli and Rafael Rivas Posada, dissenting in part):

1. In general, we concur with the Committee’s conclusions regarding communications No. 1914, 1915 and 1916/2009, Musaev v. Uzbekistan. However, we wish to place on record our disagreement regarding the scope of military jurisdiction within the framework of the International Covenant on Civil and Political Rights.

2. We wish to highlight the need to review the current position of the Committee, which considers the trial of civilians in military courts to be compatible with the Covenant. This position is based on a paragraph contained in general comment No. 32, which has attracted criticism in a number of minority opinions regarding individual cases previously considered by the Committee.8

3. A close reading of article 14 would indicate that the Covenant does not even go so far as to suggest that military justice might be applied to civilians. Article 14, which guarantees the right to justice and due process, does not contain a single reference to military courts. On numerous occasions — and always with negative consequences as far as human rights are concerned — States have empowered military courts to try civilians, but the Covenant is completely silent on the subject.

4. It is true that the Covenant does not prohibit military jurisdiction, nor is it our intention here to call for its abolition. However, the jurisdiction of the military criminal justice system constitutes an exception which should be contained within suitable limits if it is to be fully compatible with the Covenant: ratione personae, military courts should try active military personnel, never civilians or retired military personnel; and ratione materiae, military courts should never have jurisdiction to hear cases involving alleged human rights violations. Only under these conditions can the application of military justice, in our opinion, be considered compatible with the Covenant. [Bold emphasis added.]

8 Human Rights Committee: communication No. 1640/2007, El Abani v. Libyan Arab Jamahiriya; Views adopted on 26 July 2010, separate opinion of Mr. Fabián Salvioli, paras. 1-15; Human Rights Committee: communication No. 1813/2008, Akwanga v. Cameroon; Views adopted on 22 March 2011, separate opinion of Mr. Fabián Salvioli, paras. 1-14.