Within 24 hours of President Abdel Fattah El-Sisi’s promise at the funeral of Prosecutor-General Hisham Barakat—who was assassinated on June 29, 2015—“to amend the law to allow us to implement justice as soon as possible,” Egypt’s cabinet approved and began to prepare for ratification a counterterrorism law that had been on the drafting table for months and the result of a process of extensive internal deliberation. While disagreement within the government initially abounded regarding the purpose of the law and whether it was necessary to amend the definition of terrorism already enshrined in the law, the violence that has continued for months seems to have changed the calculation.
The 55-article counterterrorism draft law (( The new counterterrorism draft law comes into a family of already-existing relevant legislation: (1) Article 237 of the Constitution which enables the State to fight all forms of terrorism and pass legislation accordingly, (2) the Penal Code, which historically included the predominate, albeit vague and broad, definition of “terrorism” in Article 86, alongside the particular punitive measures for various terrorist acts, (3) the Criminal Procedure Code which incorporates various provisions that establish terrorism as a crime, (4) the Terrorist Entities Law which lays out the logistical process by which to designate a terrorist and take subsequent-procedural measures, and (5) a number of indirectly-relevant pieces of legislation, including but not limited to the amendment enabling the use of military trials for attacks on public facilities under military jurisdiction. As described by the country’s Transitional Justice Minister, the new counterterrorism draft law aims “to amend the country’s criminal procedures law and penal code to stiffen penalties on terrorism crimes.”)) , which explicitly overrides a number of articles in the Penal Code—including the longstanding Article 86 definition of terrorism—begins with a hefty definitions section. Under the draft law, any group of three or more individuals, irrespective of their nationalities, their locations, and the organization’s legal status, who intend to commit any of the crimes described by the law will be considered a “terrorist organization.” A “terrorist” is any individual who “commits, intends to commit, incites, threatens, or plans” the listed crimes, regardless of whether such action is taken individually or as a leader, manager, founder, member, or funder of a terrorist entity. Finally, a “terrorist act” includes “the use of force, violence, threats or intimidation, at home or abroad to disturb the public order, to endanger the safety and security of the community…to harm individuals…to put the rights and liberties of individuals at risk…to harm national unity and security…to obstruct the interests of the government…and to impede the implementation of the Constitution.” All conduct that would harm communications, the information system, and the economic sector are also covered by the provision. The draft law also governs crimes committed outside of Egypt and defines “terrorist financing” to include the provision, supply, or receipt of funds, weapons, ammunition, explosives, and information.
In setting forth the penalties for various terrorist acts, the draft law hands down the death penalty or life imprisonment for founders, leaders, and managers of terrorist organizations; members and participants are subject to aggravated imprisonment sentences, with a minimum 10-year sentence for those receiving military or security training. Individuals found guilty of spying for a foreign nation or organization are subject to life in prison and in some cases, the death penalty. Financers of individual terrorists face life imprisonment, while financers of terrorist organizations can be sentenced to death. Possible life imprisonment or aggravated sentences no lighter than 10 years in prison are also set forth for individuals who train terrorists; individuals who attack or forcibly enter government buildings, including the presidency and the public prosecution; individuals who kidnap in furtherance of a terrorist act; and individuals who attempt to overthrow the government or forcibly change the system of governance. A five-year prison term will be handed down to individuals who propagate “ideas and beliefs calling for the use of violence” or incite terrorism through social media and similar tools. A two-year prison term awaits journalists and individuals who publish false information about terrorist attacks or statistics that contradict official government counts. Punishments for acts ranging from the destruction of oil lines to the illegal sale of military uniforms color the remainder of the legislation.
The final segment of the draft law governs a number of significant procedural provisions. The draft law allows the prosecution to detain individuals without a warrant for a period of 24 hours subject to a seven-day extension during the investigatory period of a terrorist crime, a concept that seems to have been newly minted for the law at hand, and to extend pre-trial detention periods, a tool of last resort that has already been used to keep detainees in prison for hundreds of days. Further, the draft law grants the prosecution authority in the investigation of a terrorist crime to monitor, record, and film conversations and acts in private spaces, online, and via telephone, threatening every citizen’s right to privacy in the process. Under the draft law, a specialized court with regional circuits will be designated to try all terrorism cases and issue additional injunctions as necessary; designated chambers of the Court of Cassation will consider appeals within 40 days of judgment. A ban on photography and recording of terrorism court proceedings will also be in effect. While setting forth designated circuits to try terrorism cases standardizes judgments and lightens the case load of other courts, the centralization of power in the hands of a few judges is likely to produce disproportionately harsh sentences like those issued by previous terrorist circuit courts. The draft law also prevents terrorism cases from expiring under the statute of limitations, a protection that may ultimately lead to lesser evidentiary standards and attenuated cases. On a logistical basis, the draft law mandates that the state provide a fund for the compensation of individuals harmed by terrorism and reach an agreement with national insurance companies to cover all risks stemming from the commission of terrorist crimes as they impact members of the armed forces, the public prosecution, and the judiciary. Finally, the draft law authorizes the president to evacuate and isolate areas, as well as to establish a curfew, in regions facing the threat of terrorism.
Thus the new counterterrorism draft law maintains much of the same language of the previously governing Article 86 Penal Code definition for terrorism, while (1) expanding the set of acts that can be prosecuted, including crimes like kidnap and social media incitement for the first time, and (2) implicating rights like freedom of the press and enshrining harsh sentences in a number of cases; by some accounts, there are 12 scenarios in which an individual can be sentenced to death. Further, the draft law sets forth a number of unprecedented procedural steps granting the prosecution and the judiciary significant powers beyond those generally authorized by the Criminal Procedure Code. Ultimately, the draft law’s retention of generic terminology and broad constructions leaves the door open for a simultaneous crackdown on both terrorists and nonviolent opposition figures.
The international legal community has long recognized the right and duty of every nation to take effective counterterrorism measures. While there is no internationally agreed-upon definition for terrorism, broad and vague constructions have been found to violate international law; any limits on derogable rights including the right to freedom of expression and assembly, must be (1) provided by the law and (2) necessary for respect of the rights or reputations of others, or the protection of national security, public order, or public health or morals. Specifically, the Human Rights Committee has warned that any counterterrorism law “must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly.” Further, the committee states that measures “must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected.” Under no circumstance can counterterrorism measures violate the non-derogable rights that include the rights to life, recognition as a person before the law, and freedom from torture, cruel, inhuman or degrading treatment. Thus questions arise as to whether Egypt is meeting its international legal obligations in setting forth broad language that covers a gamut of citizen activities and constrains the rights to privacy, freedom of expression, and assembly in a manner that is not necessarily the “least restrictive.”
There is no doubt that Egypt has both the right and the duty to combat terrorism effectively. The fear, however, is that with provisions that remain broad, are remarkably similar to previous legislation, and have historically proven insufficiently effective in countering terrorism, the state will continue to repeat much of what has occurred in the past, furthering a crackdown that only stifles some terrorists, while failing to guarantee the safety and security of citizens and constraining their rights in the process.