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U.S. Aid to Egypt Should Hinge on Rule of Law

The United States Department of State announced three weeks ago that it would withhold $95.7 million in aid from Egypt and delay a further $195 million because of the country’s lack of respect for human rights. This decision surprised analysts as much as it reportedly startled the Egyptian government. Recent statements by President Donald Trump, his senior advisor Jared Kushner, and others in the administration had given the impression that human rights were not going to be a priority in U.S.-Egypt relations, at least for the duration of the Trump presidency. Despite this lack of displayed interest in pushing Egypt on its human rights record, the administration still approved arguably the most significant action against Cairo since the administration of Barack Obama froze military aid following the 2013 ouster of President Muhammad Morsi.

While the large-scale issues that brought about the freeze were discussed, the goals of U.S. policymakers are unclear. Any maximalist goals of attempting to reform the Egyptian political system by withholding less than $200 million are not realistic, while smaller conditions—like resuming aid in exchange for amendments to the repressive NGO Law—might undermine future U.S. soft-power threats by setting a precedent that a return to an illiberal status quo is an acceptable outcome. The next steps taken by the current administration are therefore important because they have the power to set a precedent for the bilateral relationship during the Trump era. As the Trump team finds itself in this position, the most logical, attainable goal to tie to the resumption of aid might simply be adherence to the rule of law.

Rule of law is admittedly a vague, often normative, and at times passé concern to raise about a foreign government. It has become a catch-all for anything deviating from the liberal idea of good governance and is often as suspect in Western countries like the U.S. as it is in developing nations. However, the Trump administration does not need to wade into the deep end of academic discussions on the matter. It needs only to adhere to the simplest definition of the idea, outlined in the 2007 U.S. military Rule of Law Handbook: “the state is itself bound by law and does not act arbitrarily.” Casual observers of Egypt might question this approach, given that it hinges on the goodness of the laws binding the state. One could easily assume that Egyptian legislative and judicial bodies have acquiesced to the forced disappearances, extrajudicial killings, sham investigations, and indefinite pretrial detentions because these are accepted legal procedures. While there are articles of the Protest Law, Counter-Terrorism Law, and current State of Emergency that are cited in each of these instances, legal and constitutional documents with primacy under traditional interpretations of the rule of law have nominally outlawed all such practices and guaranteed a wide variety of personal and political rights. This means that under a strict interpretation of the rule of law in Egypt, the legal justifications for human rights violations are themselves illegal. While these protective articles have, admittedly, been under attack since the seating of a rubberstamp parliament, elements of Egyptian civil society have continually demonstrated the interest and legal expertise to push back against illegal government excesses. Therefore, by using the suspended aid to encourage the Egyptian government and judiciary to adhere to the laws of the land, the Trump administration could support local efforts to claim guaranteed rights, which would not only promote stability within a regional ally, but also burnish Trump’s tarnished human rights credentials.

There is a long list of obvious human rights violations that would be mitigated by adherence to the rule of law in Egypt. Take, for instance, the regular arrest and harassment of citizens at peaceful protests, which is arguably unconstitutional under Article 73 and was ruled illegal by an Egyptian supreme court; the arrests for criticizing the government, which is unconstitutional under Article 65; the forced disappearances of citizens, which is unconstitutional under Article 54 and has been ruled illegal by an Egyptian supreme court; the torture and extrajudicial killings committed by the government, which are explicitly illegal under Articles 126 and 129 of the Penal Code and have no statute of limitations under Article 52 of the Constitution; the cooptation of the judiciary under the Judicial Authorities Law, which is unconstitutional under Article 5; the powerlessness of oversight bodies to hold all public officials accountable, which is illegal and unconstitutional under the laws relating to each body; and the censorship of the media, which is unconstitutional under Articles 71 and 72. It bears mentioning that a variety of laws exist that are used to justify these violations. However, as previously noted, if the Egyptian legal system were made to accept the legal primacy of the Constitution, the laws sanctioning those abuses would be open to legal challenges and subsequent annulment. This process would drastically change the relationship of Egyptian citizens to the state. However, the potentially larger secondary effect of encouraging the state to respect its laws is that it would remove some of the catalysts for the clashes between civilians and the state that precipitate these abuses.

Consider the NGO Law, one of the main reasons the U.S. cited for withholding the original aid. The law, presented in September 2016 by Representative Abdel Hadi al-Qasbi, head of the Social Solidarity Committee, restricts NGO activity to pro-state development work and introduces jail terms of up to five years for accepting foreign funding. State intelligence bodies reportedly had a hand in drafting the law, which received widespread criticism from international observers and was even questioned by some Egyptian members of parliament during debate. Nevertheless, parliament still passed it on November 29, 2016.

After the vote, Sisi appeared unwilling to ratifying the law amid the strong international outcry against it. The legal course of action would have been for Sisi to veto the law and send it back to parliament to be revised, in accordance with Articles 177 and 178 of the parliament’s new bylaws. This quick veto in case of presidential opposition to a law is also mandated by Article 123 of the 2014 Constitution, which states that the president has 30 days from the date of notification to act on a law, otherwise it goes into effect automatically. But the regime chose to eschew this process and claim that the law was never actually sent to Sisi. Instead, the law remained hidden for 181 days, in violation of national and parliamentary regulations, before Sisi suddenly ratified it on May 29, 2017, thus allowing the government to wait out some of the pressure against ratifying a repressive law by violating several other laws. If rule of law had been upheld, the blatant legal and constitutional violations during the ratification process might have resulted in the NGO Law being revised to meet established international standards instead of being hidden until an opportune moment.

Similarly, the arrests, extended detentions, muzzling of the media, and abuse of innocent citizens that stemmed from the debate over the April 2016 Tiran and Sanafir agreement between Egypt and Saudi Arabia could have been avoided if rule of law were respected. Obviously, these actions against citizens are illegal and unconstitutional in and of themselves. But the heavy-handed implementation of the agreement that magnified the tension between citizens and the state would never have occurred under the rule of law. The agreement, which gave sovereignty over the two islands in the Red Sea to Saudi Arabia, was part of a transactional set of agreements in which Egypt would receive development aid. Article 151 of the 2014 Constitution states, “In all cases, no treaty may be concluded … which leads to concession of state territories.” There is some debate about whether the islands were Egypt’s originally, but Article 151 also says, “The President of the Republic represents the state in foreign relations and concludes treaties and ratifies them after the approval of the House of Representatives … [and in] Treaties related to the rights of sovereignty, voters must be called for a referendum.” Instead of respecting the Constitution, however, Sisi presented the signed and wholly unannounced agreement to the public as a fait accompli. The move led to street protests in which hundreds of citizens were arrested, a judge ruining his career by correctly ruling against the implementation of the agreement, a lawyer being harassed and libeled for leading the appeal, and several press institutions facing increased state pressure for failing to support the president’s decision. The likelihood of similar nationalist reactions to the agreement under even ideal conditions should not be downplayed. However, the scope and justification for many of these peaceful public acts against the agreement, not to mention many of the abuses that followed, might have been prevented if the regime had simply followed the constitutional path for approval, respected the court rulings against the agreement, and informed the public of their intentions.

Adherence to the rule of law will not be a panacea for all of Egypt’s ills. The overlapping layers of contradictory and vague laws on the books create a judicial environment in which any one of the previously described rights can be challenged in the name of national security (though such a challenge would still violate constitutional Article 92’s total ban against laws that “restrict [rights] in such a way as infringes upon their essence and foundation”). Nevertheless, the larger issue of moving beyond the paradigm of viewing citizens’ rights and social cohesion as antithetical to security will require a much longer-term effort from the Egyptian side. This mindset of securitization will no doubt impede the physical attainment of the aforementioned rights, and the Trump administration should not expect sudden and sweeping reforms to follow their announcement of rule of law as a prerequisite for the resumption of aid. Still, requiring the Sisi regime to be bound by the law and not act arbitrarily would help local activists begin dealing with these issues on a national level. It is a strategy that, if successful, would not only bolster internal stability and attract investors to Egypt, but also serve as a much-needed foreign policy success for the Trump presidency. It will not singularly bring post-revolutionary Egypt into the fold of thriving, free nations, but if the Trump administration is looking for a measurable goal on which to hang the resumption of aid, it’s a promising place to start.