In the wake of the world outrage at the viciousness of reporters’/journalists’ assassination (killing), lawmakers and human rights activists have said “enough.” Under the United States federal law, the Treasury Department is “empowered to prohibit entry into the U.S. and freeze assets of people considered responsible for corruption and human rights violations … effectively blocking their access to the U.S. financial system.” Sections 284 and 3 of The Global Magnitsky Human Rights Accountability Act emphasized that the President have the authority “to impose U.S. entry and property sanctions against any foreign person (or entity) who is responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals in any foreign country seeking to expose illegal activity carried out by government officials, or to obtain, exercise, or promote human rights and freedoms; . . .” In addition to finding a decision by a State not to prosecute results from unwillingness, for the International Criminal Court (ICC) to interfere and prosecute the crimes committed, instead of being prosecuted by the domestic courts, Article 17(3) of the Rome Statute states that the domestic judicial system is incapable of prosecuting criminal acts by launching fair measures to identify the failure of the state’s judiciary. This provision emphasized that ‘due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.’ The incapacity of the domestic judicial system could be physically when the state’s judiciary are distorted substantially or legally due to the legal obstacles which render the state’s judiciary (incapability of case’s proceeding).

Within the Egyptian status quo, the state’s physical powerlessness along with the judiciary is out of question, as the substantial collapse is not applicable to the Egyptian scenario, where the three main governmental branches (legislative, executive, and judicial) are sort of functioning theoretically – even without any recognition of separation of powers, checks and balances, and accountability principles. Regarding the legal ability of the Egyptian judicial system, the situation is totally different, as the legal inaccessibility of the judicial system occur in several cases:

(1) Presidential Immunity

According to the 2014 Egyptian Constitution, the President is entitled to a judicial immunity if “A charge of violating the provisions of the Constitution, treason or any other felony against the President…is to be based on a motion signed by at least a majority of the members of the [Congress]. An impeachment is to be issued only by a two-thirds majority of the House’s members and after an investigation to be carried out by the Attorney General . . .” Thus, any charge against the President of treason or of committing a criminal act shall be made upon a proposal by at least one-third of the Congress’s members and no impeachment shall be issued except upon the approval of two-thirds Parliament’s majority. Also, the President’s criminal liability is regulated constitutionally and was governed by Law No. 247/1956, which identifies the procedural rules of the presidential prosecution. In Contrast, Article 27 of the Rome Statute reads expressly that “(a) this Statute shall apply equally to all persons without any distinction based on official capacity […] as a Head of State or Government . . . shall in no case exempt a person from criminal responsibility […], constitute a ground for reduction of sentence, and (b) immunities or special procedural rules … shall not bar the Court from exercising its jurisdiction over such a person.” Accordingly, comparing presidential immunity granted domestically and internationally would reveal that there is a loophole. The impunity granted to Egypt’s President is a mere procedural immunity than a substantive immunity, meaning that he/she neither exempt from the criminal accountability nor the criminal punishment. However, it establishes special procedural rules different than the regular rules applicable in ordinary criminal proceedings (Crim. Pro. Code 150/1950).

This debate supported practically by the Egyptian government since the ratification of several international conventions enshrining leader’s responsibility irrespective of the official capacity regarding serious international crimes. For instance, Article 4 of the Convention on the Prevention and Punishment of the Crime of Genocide stipulates “Persons committing genocide or any of the other acts enumerated […] shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.” Since the Egyptian legal system adopted the monism not the dualism approach, Egypt is bound by the principles they establish. Based on the complementarity principles – and if Egypt decides to ratify the Rome Statute – one could argue that if international crimes were committed and the president’s accountability was invoked for these crimes, the ICC have to check if the national proceedings have been taking place as it would not be able to intervene merely based on the procedural immunity exists under the current domestic Egyptian criminal law. One question is critical, what would be the ICC’s reaction if national courts were incapable of prosecuting the President if required congress’s majority lacks?

It has been argued, that based on the President’s procedural immunity, Egypt would not be – under any obligation – to prosecute the President before a domestic court. This argument creates a serious challenge to the complimentary norm and recalling the broad interpretation of the inability test (judicial system is unattainable) as of procedural limitations. Thus, amending Article 159 of the Constitution is required – not to allow a prosecution before the ICC – but to allow the Egyptian courts to act effectively if core crimes are committed by the president. This excludes the core crimes from the ambit of crimes covered by the current presidential immunity and hence the national courts would be able to prosecute the president for core crimes without the parliamentary threshold. This claim is supported by the restrictive theory of sovereign immunity which limits the immunity of the head of states to act relating to jure imperii (public position) but it doesn’t extend to jure gestionis (private acts). The French experience is landmark in this regard, as the French legislator – after a careful examination – of the Rome Statute before ratification, had to amend the Constitution as the latter’s inconsistency with the Statute, especially on presidential immunities.

(2) Statute of Limitations (Prescription)

This universal rule justified by the fact that time lapse of discovering the truth becomes increasingly difficult, since ‘evidence disintegrates, testimony by witnesses becomes more difficult or even impossible, the traces of the offense are lost, other means of proof disappear,’ and thus a fair trial for the accused becomes very difficult. Article 15 of the Egyptian Criminal Procedural Code reads “the prosecution of the most serious crimes and felonies are time barred upon the lapse of ten years from the date of their commission” and Article 29 of The Rome Statute provides that “the crimes within the Court’s jurisdiction are not subject to any Statute of limitations.” The non-applicability of prescription to specific crimes is not alien to the Egyptian legal system, as the Constitution per se reads, “[a]ny assault on individual freedom or on the inviolability of private life of citizens and any other public rights and liberties guaranteed by the Constitution and the law shall be considered a crime, whose criminal and civil lawsuit is not liable to prescription.” Moreover, the procedural law ensures the non-applicability of this rule to torture, . . . as Egypt has signed the International Convention on the Non-Applicability of Statutory of Limitations to War Crimes and Crimes against Humanity, it should be applied as an integral part of the Egyptian legislation. So, an appraisal of the status quo would suggest that the non-applicability of this norm to core crimes is not absolute as it doesn’t effectively cover all core crimes. Though, Egypt has ratified universal documents penalizes these crimes, it has not incorporated those into the Penal Code, and the lack of such incorporation would not stand as a ground for renouncing national prosecutions under Articles 17(3) or 20(3). This inability occurs when Egyptian courts is not prosecuting an act counts as a core crime until the barring time has lapsed; hence, the ICC would consider the Egyptian judicial system unable to prosecute. Thus, it’s highly recommended for Egypt, when reviewing its legislation as part of the process of the Statute’s ratification, to incorporate core crimes explicitly into national laws to prevent an indirect intervention of the ICC under Article 17(3) in case of applying statutory limitations to core crimes domestically.

(3) Adequacy of Domestic Concepts of Core Crimes

One of these deficiencies is the gap between the ICC crimes and regular crimes, where the former prescribes acts which are not covered domestically or covered inadequately. Fortunately, Egypt ratified the relevant conventions, but has failed to incorporate all crimes prescribed in these agreements into its Penal Code, resulting from the lack of the penalization provisions where the code falls short of covering acts punished under Rome Statute. The current criminal texts offer ambiguous insufficient definitions, which isn’t reflecting the offense’s gravity if compared to the internationally recognized descriptions of these crimes. For example, the definitions of torture, as prescribed under current criminal texts, falls within this domain.

Torture is condemned in the Egyptian Constitution, which provides that any person in detention “shall be treated in a manner concomitant with the preservation of his dignity” and “no physical or moral harm is to be inflicted upon him.” Additionally, the Penal Code provides “Any public official who orders torture or extract a confession under it, he/she shall be sentenced to ten years imprisonment…shall be sentenced to …[p]unishment for premeditated murder.” The Code reads “any official depending on official capacity, used cruelty against anybody, as he/she offended them morally or harmed them physically, he/she shall be sentenced to one-year imprisonment or to be fined of no more than 200 Egyptian Pound.”

The Egyptian policy on torture and the international policy reveals the extent of the defective Egyptian policy. Article 126 of the Penal Code, limits torture to physical attitude either the victim is the accused or coerced to a confession. Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), detailed torture’s definition as ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, […]” Despite Article 129 of the Penal Code extension of torture’s meaning to include mental and physical torture ignoring the victim’s status, the punishment is still lenient and doesn’t reflect the crime’s seriousness, as Article 4(2) of the CAT, requires state parties to ‘make these offences punishable by appropriate penalties which take into account their grave nature.’

This defective policy is the foremost problem, as torture has been committed systematically by security apparatus (police officers) nationally and internationally. Some torture cases were prosecuted before the domestic criminal courts, but most of them have been dismissed by the prosecution because of the difficulty of proofing the crime or knowing the actual perpetrator. This deficiency is not only limited to its inadequacy, but also to the confinement of the criminal responsibility to the direct perpetrators (the torturer or who orders it). Thus, the national system would be able, incompetently, to prosecute sporadic cases without being able to reach the senior leaders, as national laws don’t provide such liability’s mode – and those leaders – would be the very perpetrators who’s the ICC is endeavoring to trial. The ‘ordinary crime approach,’ is entirely different than individual and commander’s criminal responsibility. Therefore, if Egypt desires torture to be prosecuted nationally, amending its definition in Article 126 of the Penal Code is required to make it consistent with Article 1 of the CAT or Article 7(2)(f) of the Rome Statute. Also, adopting command responsibility’s mode will allow the national courts to prosecute senior leaders on core crimes.

Harmonizing the Egyptian Legal System within the Rome Statute as a Step Forward

Egypt’s judicial and legal systems regarding punishing core crimes is not advanced as of the Rome Statute, as judiciary might be found impotent to prosecute the core crimes in several cases. This is a direct consequence on the discourse about ratifying the Rome Statute in Egypt. Legal scholars argued about the importance of the complementarity norms, that considered as the cornerstone of the ICC regime – if ratifying the Statute – so, the ICC crimes will be incorporated into the national legal system. A unified Arab legislation (Model Law) was proposed and formulated to harmonize the Arab legal systems within the Rome Statute within the jurisdiction of the ICC. This law focuses on various principles, as irrelevance of official capacity, ne bis in idem as to acts that have been prosecuted before the ICC along with the non-applicability of the statutory limitations or any form of amnesty (pardon) to any crime, among many others. One could argue that the ‘Model Law’ shows that it has covered numerous gaps of the prevailing Egyptian laws, in a way that would render the judicial system – more – able to handle the core crimes’ prosecutions and block that of the ICC. However, whether this ‘Model Law’ will continue to be a future project – or to be enacted by the parliament – is yet to be realized and dogged.

Mohamed Arafa is an Assistant Professor of Law at Alexandria University Faculty of Law (on sabbatical) and Adjunct Professor of Law at Indiana University Robert H. McKinney School of Law. He received his SJD from the Indiana University Robert H. McKinney Law School, his LLM from University of Connecticut School of Law, and his LLB from Alexandria University Law School. Also, he is a Visiting Professor of Law at the University of Brasília School of Law. Currently, he is a Visiting Scholar & Adjunct Professor at Cornell Law School. He is the Managing Editor of the Arab Law Quarterly Journal in London. His teaching and scholarship focus on criminal law, white collar crimes, human rights law, Islamic law, Islamic criminal law, and transitional justice.

Suggested citation: Mohamed Arafa, The Egyptian Criminal Justice System’s Readiness to Prosecute Core Crimes: Goest Thou?, JURIST – Academic Commentary, November 7, 2018, http://jurist.org/forum/2018/11/mohamed-arafa-egyptian-criminal-justice-core-crimes.php

This article was prepared for publication by Ben Cohen, a JURIST Section Editor. Please direct any questions or comments to him at commentary@jurist.org