JURIST Guest Columnist Liesel LeCates, University of Utah – S.J. Quinney College of Law Class of 2014, discusses the recent sentences by an Egyptian military tribunal against protesters supporting of the ousted president Muhamad Morsi, and whether the sentences were legitimate and fair …

Historically, many insurgencies have been justified with the revolutionaries hailed as heroes for standing up against oppression. Yet, in Egypt the situation is unique and the details reported regarding protest violence are limited, leading to a difficult determination of right and wrong.

Egypt has undergone three major changes in authority since 2011. Mobs have gathered in the streets for months to protest the ousting of President Muhamad Morsi, and the military has resorted to the use of force in order to suppress the demonstrations. Despite this turmoil, some judicial organs appear functional. For the first time since President Morsi was overthrown in July, a military tribunal convened on September 3, 2013, to intervene in the chaos. This tribunal sentenced pro-Morsi protesters who were convicted of “shooting and adopting violent means” against the army in Suez, after a military crackdown against the Morsi supporters resulted in hundreds of deaths in Cairo. Twelve were acquitted, several others received judgments ranging from five to fifteen years, while only one man received a life sentence.

The tribunal-imposed sentences have been criticized as harsh. However, in order to determine the legality of prison sentences received by the pro-Morsi protesters, the following must be considered: first, the legitimacy of the Egyptian government; second, whether the demonstrators received a fair trial; and third, the justification of life-prison sentences for violent protests.

I. Is the current Egyptian government legitimate; if not, what rights should be extended to unrecognized governments?

There are differing views regarding the legitimacy of the Egyptian government. The Muslim Brotherhood believes that Morsi, democratically elected, was removed illegally and the resultant use of military force to control protesters was unfounded. The Egyptian military justifies its actions were necessary after Morsi failed to abide by democratic principles.

According to Locke, governments become legitimate through the concept of citizen consent. Under this theory, the Egyptian government would be considered legitimate when groups flocked to the streets challenging the authority of President Morsi. Following the public outcry, the military imprisoned Morsi and appointed an interim president in his stead. Although the Muslim brotherhood contests the legitimacy of the current leadership, if the Egyptian military overthrew President Morsi in an effort to establish a democratic government at the request of the majority, then the government is legitimate.

If the Egyptian government’s legitimacy is not recognized by the international community, providing stability to protect the public in preparation for democratic elections gives the military a moral right to arrest and charge violent demonstrators. While the military has been accused of other crimes and overzealous use of force, based upon the isolated circumstances in Suez, these military tribunals could be a necessary step to reduce future violence.

II. Did the protesters receive a fair trial?

The International Covenant on Civil and Political Rights in Article 14 [PDF], states: “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” In Egypt, “military courts do not have due process” unlike civilian courts. Military courts have authority to prosecute civilians in cases of “national security” and “terrorism.”

While military tribunals are a favorable alternative to violence, great care should be taken when contemplating negating individuals’ rights in the name of public security. An automatic prison sentence should never be justified without some form of due process. The government interests in protecting individual rights and public safety should be balanced. Extreme circumstances could necessitate minor restrictions to the western idealization of individual rights, but these exceptions should not withhold fundamental human rights such as freedom from torture.

A report [PDF] by the UN Commission on Narcotic Drugs and the Commission on Crime Prevention and Criminal Justice specifies that although “some rights (such as freedom of expression, for example) may be limited on the grounds of public safety, order, health, morals and the rights and freedoms of others, other rights may not be limited under any circumstances.”

Superficially, the story in Egypt appears to be another unfair ruling in which the politicized judiciary was swayed by current executive leadership; however, a close analysis suggests the contrary. Details regarding the specific process afforded the imprisoned protesters is limited, but the available information implies the judiciary reasoned impartially. While this tribunal had multiple incentives and opportunity to prosecute harshly, like in June when an Egyptian court sentenced a man to death for drug trafficking, it used restraint even though the accused allegedly shot at military personnel.

Although the government has a duty to safeguard the public, individuals should always be afforded the necessary process to ensure protection from indiscriminate punishment. Judicial organs should be extremely wary not to encroach needlessly on personal rights while considering the government’s need to safeguard the public. This balance is difficult and should be tailored to specific circumstances, but the use of force is never justified when peaceful alternatives are available.

Even though the tribunal judgments appear fair and unbiased, the potential for prejudice without fundamental due process protections are so great, that the rights to a fair trial were likely violated.

III. Does the punishment fit the crime?

Article 20 of the Universal Declaration of Human Rights states, “Everyone has the right to freedom of peaceful assembly and association.” This right to protest does not extend to violence; however, violent protests can be justified, but only when there have been extreme violations of fundamental rights and all peaceful alternatives have been explored.

The Egyptian government is motivated to halt the violence in order to protect the country’s economic stability. Since July, oil prices have increased and the political unrest has required a stronger military presence in the area. These attempts by protesters to close the Suez Canal could significantly burden [PDF] the Egyptian economy by immobilizing exports. Current instability, combined with attempts to thwart economic activities will likely lead to increased deadly protests which in turn will accelerate current uproar. Despite these motivating factors, Egypt must punish humanely.

The Declaration Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [PDF] is devoid of exceptions stating: “No State may permit or tolerate torture or other cruel, inhuman or degrading treatment or punishment. Exceptional circumstances, including state of war, internal political instability or public emergency, may not be invoked as justification of such acts.” A life-prison sentence is not inherently inhumane; therefore, the question still remains: Considering the violent acts of the Morsi-supporters, is a life prison-sentence justified, or should the international community condemn the punishment as cruel and unfitting the crime?

Viewed through a utilitarian lens, a life-sentence for violent protesting, absent other cruel circumstances, could be necessary punishment to prevent further death and violence. In this instance, protesters were accused of “opening fire at soldiers during a riot.” Yet, each individual protester was sentenced to a varying degree. The information distinguishing the individuals’ crimes is unavailable, but the fact that twelve of the accused were acquitted, and only one received a life sentence, implies that the court attempted justice and mercy.

The Egyptian transition in power, and excessive use of military force to quash demonstrations, has spurred differing opinions concerning the current government’s legitimacy and the legality of using military tribunals when trying civilians. Additionally, the use of military tribunals to sentence civilians infringes upon the western idealization of fundamental rights; however, considering the situation in Egypt, the life-sentence imposed on an individual for “shooting” at military personnel is a reasonable and peaceful alternative to the violent military interventions in August.

Liesel LeCates is a J.D. candidate at the University of Utah focusing on international law. She serves as the President of the International Law Society. She received her B.S. from Utah Valley University.

Suggested citation: Liesel LeCates, A Fair Judiciary Amidst Egyptian Turmoil, JURIST – Dateline, Sept. 18, 2013, http://jurist.org/dateline/2013/09/liesel-lecates-egypt-sentences.php.