Behind the sun: Is this the end of the rule of law in Egypt?

The saga of young student Esraa al-Taweel, who disappeared for two weeks last year before security officers admitted to detaining her, is the best-known example of what appears to be a systematic policy of forced disappearances in Egypt.

Security officers kidnap individuals they believe are activists, force them to provide information or testify to wrongdoing, and deny for days, weeks or months that they are keeping them in custody. Some of those kidnapped are then taken to court — or released — while the whereabouts of others remains unknown.

The National Council for Human Rights (NCHR) received around 200 complaints in 2015 alone about such cases. Independent human rights groups have documented hundreds of cases of forced disappearances in the past two years. Some commentators have compared the growing trend with the terrifying crackdown in Argentina in the 1970s, when a military junta, headed by General Jorge Rafael Videla, kidnapped thousands of dissidents, students and other innocent citizens — most of whom were disappeared forever.

Why do Egyptian security agencies engage in such a practice? How do they benefit from it? Why are other state institutions turning a blind eye? And, most importantly, why do a significant number of Egyptians accept, and even cheer, a wide array of rights violations?

Taweel was kidnapped, along with her friends Omar Mohamed Ali and Sohaib Saad, from the streets of Cairo. Blindfolded, they were taken to the notorious State Security headquarters, where they were interrogated for days without access to a lawyer or family members. Interrogating officers threatened to detain Taweel’s relatives if she didn’t cooperate. She could hear the screams of her friends, who were apparently being tortured nearby.

The government later showed a video of the young men testifying about their involvement in acts of violence — a so-called confession their families dismissed as resulting from torture. Taweel’s trial came under the media spotlight. Cameras captured her weeping in court as she leaned on crutches for injuries she reportedly sustained while taking photos of a public protest a year earlier. Her iconic status prompted her release months later, but she is still under house arrest.

Forced disappearances are now on a long list of human rights violations committed by the Egyptian state that includes torture, death in custody from torture, extrajudicial killings, the excessive use of force during street clashes and medical neglect in detention facilities. Even in everyday situations, police officers have violently broken the very law they are meant to uphold. Not a month passes without one policeman or another shooting at a driver to settle a traffic altercation, for example.

In one police station alone in Matareya (northeast Cairo), 14 detainees reportedly died in custody over the past two years, including a young lawyer, whose death under torture in early 2015 led to the unusual conviction of two National Security officers. Policemen from the same station also reportedly assaulted doctors at a nearby hospital, leading to last week’s unprecedented protest by several thousand doctors and a partial nationwide strike until their demands are met.

All these incidents have reinforced the prevailing conviction that security forces are above the law.

Leading pro-government talk-show hosts and columnists describe these violations as isolated incidents that should be treated as misconduct. They claim Egypt is in the midst of a “war on terror,” in which security forces should be empowered, not criticized. These forces, they say, have suffered to protect the nation, sacrificing over 700 officers and soldiers in the past two years in a violent confrontation in Sinai with armed militants. But recurrent police violations existed before the rise of this terrorist wave. Moreover, there is no evidence whatsoever that allowing security officers to act outside the law helps in their pursuit of armed militants. It is impunity and the lack of accountability that best explains the entrenched attitude of Egypt’s security forces, who have long prioritized the protection of the government over the interests of the state. Security bodies often perceive the law as an obstruction or a procedural formality that can be surpassed in exceptional circumstances. And for them, Egypt is always experiencing one exceptional circumstance or another.

There is indeed popular support for this law-despising approach. The first response of many people to reports of torture, forced disappearances or illegal detentions is to ask if the victim is affiliated with the Muslim Brotherhood. It is as if alleged affiliation to an outlawed organization is justification for violating the law, torture and extrajudicial killing. And if there is no proven link to the Brotherhood or a secret Masonic organization, and the individual isn’t a spy for a foreign power, people commonly claim the treatment of this individual is an isolated violation by a misbehaving officer.

How do all these concerns about higher interests benefit Islam Khalil, who spent 122 days in detention without access to a lawyer and without his family knowing anything about his whereabouts? Khalil was not a prisoner, at least not legally. He was disappeared by force. As far as the state’s agents were concerned, he belonged to a twilight zone of torture. His brother Nour didn’t recognize him after four months in detention. His hair and beard were gone and the skin around his eyes had paled from being blindfolded. Khalil, an electronics sales agent at an Egyptian company, was accused of joining a terrorist organization — most probably the Brotherhood. He was arrested from his house in a village in the Delta on May 24, 2015, but police reports indicate he was arrested in Cairo on September 21, leaving no official trace of the 122 days in which he was disappeared. Khalil has not yet stood trial. His case is not unique.

Hend and Rasha Mounir spent 27 months in prison before a court cleared them of trumped up charges. Rasha’s husband died while standing in line to visit his wife. Mohamed al-Imam spent 20 months in detention before a court freed him. He was charged with joining a protest at Alexandria University.

These cases and many others reveal the growing cracks in Egypt’s legal institutions, cracks that many think are too difficult to fix and that the government doesn’t care about.  

Forced disappearances and universal jurisdiction

The United Nations working group on forced and involuntary disappearances issued a report in August 2015, listing 70 new cases of forced disappearances between May 2014 and May 2015 in Egypt, and communicating its findings to the Egyptian government. The Egyptian Commission for Rights and Freedoms additionally reported 340 cases of forced disappearances from August to November 2015, an average of 85 cases per month. Egypt’s National Council for Human Rights, whose members are appointed by the president, submitted 191 complaints of forced disappearances to the Interior Ministry in 2015. After months of persistent denial and claims that some of those missing had joined Islamic State militants in Syria, the Interior Ministry admitted in January 2016 that 99 disappeared people were in its custody and that it had released 15 others.

The numbers and geographical distribution of these cases is important in determining whether such violations are an aberration or a systemic problem. This has implications in terms of international law. Article 2 of the International Convention for the Protection of all Persons from Enforced Disappearances defines forced disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or by persons or groups of persons acting with the authorization, support or acquiescence of the state, followed by a refusal to acknowledge the deprivation of liberty, or by concealment of the fate or whereabouts of the disappeared person, which places such a person outside the protection of the law.” The convention unequivocally indicates that “no exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency, may be invoked as a justification for forced disappearance.”

Even though the Egyptian state is not a signatory to this convention, which was introduced in 2010, its officials still risk facing extraterritorial trials under the principle of universal jurisdiction. Courts in over 160 countries have the right to prosecute suspects of international crimes, which include crimes against humanity, even if the criminalized acts took place in other countries. Forced disappearance is recognized as a crime against humanity. In order for international courts to have universal jurisdiction, however, the national courts in the country where the crimes were committed must be unable or unwilling to perform their duties, or not have the necessary laws to handle such acts, or violations must be considered systemic and widespread in such a way that they are “crimes against humanity.” Egyptian law does not, in fact, define crimes against humanity, including forced disappearance, or stipulate penalties. No one committing such a crime in Egypt has been held accountable — not even in a mock trial — even when the state has admitted culpability. Determining if the crime is systemic does not only depend on the number of victims or the rate and consistency of the crime, but also on the length of the disappearances, their geographical distribution, and the gravity of the harm inflicted on the victims. In short, it is possible that Egyptian officials could face trials in other countries for cases of forced disappearance. Even if national impunity is guaranteed, it is not the case with international accountability.

According to human rights lawyers, Egyptian security agencies have resorted to kidnapping political activists because they no longer have the aid of the emergency laws that were in place under President Hosni Mubarak. The Supreme Council of the Armed Forces officially ended the state of emergency in 2012. Arrest and detention warrants are now — formally at least — issued by the judiciary. This is in accordance with Article 54 of the Egyptian Constitution, which stipulates, “Every person whose freedom is restricted shall be immediately notified of the reasons, shall be informed of his/her rights in writing, shall be immediately allowed to contact his/her relatives and lawyer and shall be brought before an investigation authority within 24 hours of the restriction of freedom. Investigations may not start with such individuals unless his/her lawyer is present.” The prosecutor is then required to file charges based on evidence, or release him/her. The new counterterrorism act extended the above period from 24 hours to eight days, but a detention order must be issued by a prosecutor within 24 hours.

This leaves victims of forced disappearance in an extremely vulnerable state. Knowing they are cut off from the outside world and could die without a trace, as they are often told by interrogators during torture sessions, they can easily be forced to admit to anything officers suggest. This practice is reminiscent of the 1960s under Gamal Abdel Nasser, when officers threatened political dissidents to send them “behind the sun,” where they would be untraceable. Some have disappeared for months, but the average period seems to range between two and four weeks.

Egyptian security agents still resort to torture as an interrogation technique, even though several studies have concluded that a person under torture, especially if innocent, will say anything to spare them from pain. The notorious acts of American interrogators at Abu Ghraib and Guantanamo Bay were scandalous not only because they were illegal and unethical, but because they were also unnecessary in terms of advancing interrogations and extracting information. When one suffers electric shocks to limbs and testicles, or is hung upside down for hours, or deprived from sleep for days, all of which are techniques included in testimonies by people detained by security agencies in Egypt, one is ready to read whatever confession is necessary to make it stop.  

The normalization of violence

It is hard to justify police violations as a necessary method for curbing the violence of terrorist organizations. According to a 2015 report by the Tahrir Institute for Middle East Policy, violent terrorist attacks jumped from 30 a month in 2014 to 100 a month in the first eight months of 2015. Additionally, the nature of the attacks evolved from badly improvised roadside bombs and drive-by shootings, limited largely to Sinai, to assassinations, such as the murder of Prosecutor General Hesham Barakat in June, and the downing in October of a Russian aircraft over Sinai, which Sinai-based militant group Ansar Beit al-Maqdes claimed responsibility for. Deadly attacks against soldiers and policemen have become a daily affair in North Sinai.

It seems that the main objective of massive and systematic police brutality is to establish a state of fear. Tens of thousands are unfairly, or inexplicably, imprisoned, including those who have spent over two years in pre-trial detention. Hundreds have reportedly died in detention facilities due to torture and/or medical neglect. When security forces kill suspected individuals in raids, it is officially labeled “liquidation” by the press and not scrutinized or investigated properly. The government has defended the actions of security bodies by claiming disappeared individuals have harmed national security, threatened public order, offended public decency, or insulted religion.

Fear-mongering has become a daily practice for politicians, television talk shows, preachers in mosques and churches, and even public schools. The Ministry of Education has organized at least one event to burn books that could harm Egypt’s stability and discussed proposals for “Intellectual Security” by revising the curriculum in public schools. This has created a state in which violence against alleged conspirators has become normalized.

State institutions and supporters think they are immune from such violence; they justify it in private and deny its existence in public. This hysterical environment feeds on and breeds theories of conspiracy and xenophobia, in which all opponents of the government and those calling for reform and accountability have been labeled foreign agents and traitors, or naïve, brainwashed youth. Commenting on the recent gruesome murder of Italian student Giulio Regeni, a pro-government columnist claimed his death was a conspiracy to sabotage the visit of an Italian trade delegation that had to abruptly leave the country after Regeni’s tortured body was found.

This environment also drives victims of violence, even previously non-politicized detainees, to react violently, or at least threaten to do so. After Talaat Shabeeb died of mistreatment and possible torture by police in Luxor in November 2015, his family threatened to avenge his death if the police officers responsible were not properly tried and sentenced. After trying to avoid accountability for a few days, state prosecutors ordered the trial of several policemen. Such attempta at accountability have not taken place when allegations of torture or death were credibly reported against policemen in many other cases.

The unavoidable outcome of such normalization is that more and more people will abandon the rule of law. Violence, or the threat thereof, will become the preferred, if not the only, tool of the state. When radical militants choose violence, the threat is obvious. But when the government uses the same tactics, bypassing legal institutions, people lose trust in the judiciary as a safety net against the violent grip of the executive authority.

The situation in Egypt today is dangerous. It is beyond the suspension of rights until the war on terrorism is over. Widespread police violations threaten the rule of law at its core and are consuming the foundations of the Egyptian judiciary, undermining the social values of justice, dignity, equality, empathy, mercy and solidarity. After all, it is these values that guarantee the stability of societies when legal institutions falter. If Egypt continues on this path without drastic reforms, it will be very difficult to stop an ensuing spiral of violence, the aim of which is to exterminate or liquidate the “other.” And, since this “other” is a moving target, we could easily reach a day when we are all afraid of each other and are all “behind the sun.” The current government sees people as subjects, not citizens, and institutions and elites as “sects” or “guilds” that do not work for the public good.

Khaled Mansour 

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