Weapons Seized from global jihad insurgents in Sinai during a bust in August 2012.- http://www.idfblog.com/2012/08/06/idf-thwarts-major-infiltration-attempt-by-terrorists-at-israel-egypt-border/. Licensed under CC BY-SA 2.0 via Wikimedia Commons.

Designating a Terrorist: Process Unchecked

05/20/2015 . By Mai El-Sadany

In September 2013, March 2014, and April 2014, the Cairo Court for Urgent Matters—a judicial body with virtually no public role before the Revolution—issued verdicts banning the transnational Muslim Brotherhood and all affiliated NGOs and entities, the Palestinian Resistance Movement and political party Hamas, and the domestic liberal April 6 Youth Movement. In February 2014, April 2014, and February 2015, the very same court issued verdicts declaring the Muslim Brotherhood, jihadist militant group Ansar Bayt al-Maqdis, and Hamas to be “terrorist organizations.” Interestingly enough, the court had, just one month prior to the Hamas verdict, issued a statement that it did not have jurisdiction to determine Hamas’ status as a potential terrorist organization; it again found a lack of jurisdiction when a case to label the April 6 Youth Movement as a terrorist organization came to the court in April 2015.

But the chaotic process, absence of any clear trend, and arbitrary determinations of jurisdiction depicted by recent verdicts of the Cairo Court for Urgent Matters are not the only sources of official terrorist designations in the post-January 25 Egypt. The executive branch maintains the ability to issue decrees reflecting such determinations as was done with the Muslim Brotherhood in December 2013 through a cabinet decision. February 2015 also brought the ratification of the Terrorist Entities Law, reflecting an attempt by the government to establish a primary means by which to designate terrorists. In March 2015, 18 Brotherhood leaders were officially designated as terrorists through this process. One month later, Ansar Bayt al-Maqdis was designated to be a “terrorist entity” and 207 of its members were listed by name as terrorists.

Recent examples thus depict three primary means by which an organization or individual can be designated as a terrorist: (1) previous court ruling, (2) government decree, and (3) the process set forth by the Terrorist Entities Law. While neither government decree nor Urgent Matters Courts verdicts have been issued since the ratification of the Terrorist Entities Law and thus may reflect the government’s intent to streamline the designation process and rely solely on the new law, no provisions in the Terrorist Entities Law indicate that this is necessarily the case.

The text of the Terrorist Entities Law grants the Public Prosecution the authority to issue both a Terrorist Entities list and a Terrorists list, which designate organizations and individuals, respectively, per previous verdicts or as determined by a new request to the court system. If a previous verdict is not being relied upon for the designation, a new determination must be made. The law stipulates that a special criminal judicial circuit at the Cairo Appeals Court will have the authority to determine whether an organization meets the definition of a terrorist entity after an investigation conducted by the prosecutor-general. Once a terrorist or terrorist entity has been designated, the law grants “competent state bodies” the authority to dissolve the entity, halt its operations, close all affiliate buildings, ban meetings and all membership, stop its financial activities, freeze its property and assets, and ban all related slogans. Through this process, a designated terrorist will also be deprived of his or her political rights. Challenges to terrorist or terrorist entities designations must be brought within sixty days of the designation and are to be reviewed by one of the criminal divisions of the Court of Cassation with a decision made within seven days thereafter. Designations must be made public and published in the Official Gazette, as well as shared with regional and international partners.

Thus the Terrorist Entities Law conceives of a system in which a terrorist designation is generally made by a branch of the Cairo Appeals Court and/or reviewed by the Court of Cassation. Because previous verdicts can be relied upon, however, it is also possible that verdicts from the Court for Urgent Matters may also be the source of designation. This would create an inherent discrepancy in which court systems that are inherently distinct, have judges trained in different areas of law, and have varied technical jurisdictions are able to influence the terrorist designation process.

This becomes especially worrisome when one explores the recent history of the Court for Urgent Matters, initially set up to deal with urgent civil disputes including land allocation, rent contracts, and ownership claims. Judicial scholars agree that the Urgent Matters Court has jurisdiction when two criteria are met: first, that the case is urgent and there is a fear that procedures may take too long in the court that would regularly have jurisdiction, thus making the matter moot; and second, that an injunction issued in the case would serve as a temporary measure, rather than a ruling on the substance of the case or right involved. But as evidenced by the aforementioned verdicts, even the court itself cannot seem to agree exactly what the confines of its jurisdiction entail. ((In May 2015, the Appeals Court for Urgent Matters banned the Ultras football group despite an earlier finding by the Court for Urgent Matters that it did not have jurisdiction to determine the case.)) Injunctions issued by the Court for Urgent Matters are judicial actions granted provisional enforcement, meant to be temporary, but binding while in force. It was only in September 2013 that the Urgent Matters Court began to accept cases determining the legal status or terrorist affiliations of various political parties, organizations, and militant groups.

The two recent examples of Terrorist Entities Law designations demonstrate just how convoluted even the new process promises to be; the Muslim Brotherhood designation was facilitated by a prior verdict, while the Ansar Bayt al-Maqdis designation came only after the prosecutor-general explicitly requested that the court litigate the matter in a new case. ((When 18 Muslim Brotherhood members were designated terrorists in March of this year, the prosecutor-general announced that the court’s reasoning had been based on a February 2015 criminal verdict convicting the individuals in what was popularly-referred to as the “Muslim Brotherhood Headquarters Case.” The terrorist designation of Ansar Bayt al-Maqdis and the group’s members in April, on the other hand, came only after the Prosecutor-General’s request that the Cairo Criminal Court investigate a new case involving the assassination of policemen and the bombing of security facilities.)) In both processes, there is a reliance on seemingly random verdicts despite the presence of numerous previous verdicts regarding the activities of both groups and upon which the court could have conceivably relied. Additionally, the reliance on verdicts from varied court circuits again raises questions of consistency and process.

Ultimately, the Terrorist Entities Law technically establishes what should be a straightforward process by which to pursue the designation of terrorists and terrorist entities. However, the failure of the Terrorist Entities Law to address the status and legitimacy of previous designations, the immense confusion that clouds the purpose of and jurisdictional constraints of politicized judicial bodies like the Courts for Urgent Matters, and the inability of the legal system to designate the role that “competent state bodies” have once a terrorist designation has actually been made, ensures that the process will be subjective, inconsistent, and subject to exorbitant amounts of human error.