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Egypt as a Space of Resistance

by OMAR KASSEM

Cairo.

This Saturday 16th November, the Egypt International Crimes Investigation Team (EICI) of solicitors Irvine, Thanvi, Natas (ITN) instructed by Egypt’s Freedom and Justice Party (FJP), and represented by their partner Tayab Ali, announced the beginning of the formal stages of the prosecution of a specific list of persons in Egypt accused of murder, torture, arbitrary detention, and the persecution and the incitement to persecute specified groups within Egyptian society. The group in question as we know is the Muslim Brotherhood, and the charge of persecution extends to media personalities in the Egyptian Junta media such as Lamees al-Hadidi, Amr Adeeb, Yusef al-Husseini, Wael Ebrashi and Khairi Ramadan and clerics such as Ali Gomaa, who, in a televised speech to the military, called for the killing of protesters as ‘infidels’.

At a press conference at the Hilton Metropole in London, the ITN representatives judged these crimes against humanity, based on the evidence that they have collected so far, to have been and to continue to be ‘widespread and systematic’. The massacres at the Republican Guard Building (8th July), at Rab’a al-‘Adawiyya and al-Nahda (14th August), and Ramses Street and al-Fath Mosque (16th August), are only some of the instances listed. Numerous other cases such as the killing on August 18th of 38 detainees during a transfer by Junta authorities to Abu Zaabal prison outside Cairo, are also being considered.

To execute the coming prosecutions ITN have instructed a team of barristers including human rights lawyer Michael Mansfield QC, who first became known for his instrumental role in the freeing of the Guildford Four, the Maguire Seven, and the Birmingham Six from wrongful convictions in the British Courts, and former Director of Public Prosecutions in the UK, Lord Ken Macdonald QC, as well as South African International Lawyer and former UN Human Rights Special Rapporteur, Professor John Dugard SC.

After Tayab Ali’s statement of the legal case at the press conference, Michael Mansfield described the international jurisdictional nature of the prosecution, making quite clear that all avenues are being pursued at once. In respect of the International Court of Justice (ICJ) at The Hague, its role now extends beyond just arbitrating in national disputes, to giving legal opinions upon demand not only of the United Nations Security Council (UNSC), but also of any NGO’s, and technically therefore now on the part of any group. In a relatively recent case in July 2004, the ICJ found that the construction by Israel of a wall in the Occupied Palestinian Territory and its associated régime are contrary to international law.

When it comes to the International Criminal Court (ICC), a completely separate legal avenue is to be followed by the EICI and their barristers, for redress against the Egyptian Junta, on behalf of the people of Egypt. Although Egypt never ratified its participation in the ICC, it is nevertheless still a signatory.

A third powerful source of redress is ‘Absolute Universal Jurisdiction’, to be pursued everywhere in local courts. Another legal term for this is ‘erga omnes’ (Lat.: towards all), which involves rights or obligations which are owned towards all, and are statutory rights distinguished for instance from a right based on contract, which is only enforceable against the contracting party. In international law this becomes a legal term describing obligations owed by states towards the community of states as a whole, expressing its need to prevent the breach of critical rights, typically including matters of piracy, genocide, slavery, torture, and racial discrimination.

The concept was recognized in the ICJ’s decision in the Barcelona Traction case in 1970, although Richard Falk, United Nations Special Rapporteur on Palestine, acting as an advisor to the EICI and present at the Hilton Metropole press conference, pointed out that it was at the Nuremberg Trials (1945/46) against the Nazi régime,  that the international community first established the philosophical basis of such actions against war criminals.

Many aspects of this law are to be found automatically embedded in national legislation, as, for instance, the case of torture in the UK Criminal Justice Act. It was on this basis that, after the 2008 Gazan Massacre by Israel, otherwise known as ‘Operation Cast Lead’ (27th December 2008- 18th January 2009), a group of Gazan victims issued arrest warrants in the UK against all senior members of the Israeli Defence Force (IDF). In fact, during that period, lawyers representing the IDF advised its officers not to visit the UK, Spain, Belgium or Norway because of the risk of arrest, and the Israeli Minister Tzipi Livni, had to cancel a visit to the UK amid fears she would be arrested.

Pressure by Israel on British politicians subsequently led to the British Parliament seeking to legislate to give oversight to the Director of Public Prosecutions in respect of any arrest warrants that were being issued suspected war criminals. This was fiercely contested by the London legal community, including by Michael Mansfield QC, and ITN partners, Tayab Ali and Simon Natas. Whatever legislation was passed, the right nevertheless clearly remains for individuals to bring charges against war criminals in the UK, despite the new risk of political interference.

On a not dissimilar legal basis, dictator Augusto Pinochet was indicted for human rights violations committed in Chile by Spanish magistrate Baltasar Garzón on 10 October 1998, who arrested Pinochet in London to be tried in Spain. It was in fact the Pinochet case which substantially strengthened the commitment of the international community and its justice system to pursue war crimes cases in the framework of ‘erga omnes’. We find in fact that the bloody coup by the Algerian military after the cancellation of parliamentary elections held in Algeria on 26 December 1991, which were won by Islamic parties, and which led to a civil war whose effects are still being felt, was never brought into question in international courts, although it might clearly have been so in today’s legal environment.

Richard Falk insisted that these cases that will be brought against the Egyptian Junta and its cheerleaders are crucial not only to support the Egyptian people who continue to protest peacefully in their millions on a daily basis, whilst being absurdly and unjustifiably branded as ‘terrorists’, but also for the Gazan people, who are now suffering almost terminal strangulation, as Egyptian Junta joins hands with Israel in their siege.

Abdel-Mawgoud Dardery, the FJP member and head of the Shura Council Foreign Affairs Committee, also leading the panel at the Hilton Metropole press conference with ITN partner Tayeb Ali, wanted to reassure the Egyptian people that their efforts will not be in vain and that there are indeed many people of conscience throughout the world working day and night to defeat the depraved idea at the heart of the Nasserite state of Egypt that ‘might is right’.

Michael Mansfield pointed out in a subsequent interview on the same day, that Afghanistan, Guantanamo Bay, Iraq and Palestine, are territories where hegemonic world powers have been trying to construct as spaces of exception, where international law does not apply and crimes against humanity take place with impunity. Where Egypt has now joined this list, the effort to deny people their basic rights is being met with strong resistance in Egypt.

Omar Kassem can be reached through his website: http://different-traditions.com/.

Omar Kassem can be reached through his website at http://different-traditions.com/

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