The mass death sentence handed down to 529 members of the Muslim Brotherhood in Egypt a few days ago has sparked predictable outrage among the international community, with much of the western world and the UN condemning it as a blatant violation of international law and of human rights.
The mass death sentence handed down, however, has greater implications for the Egyptian public than just the lives of these 529 Muslim Brotherhood supporters. Aside from completely obliterating respect for its judiciary and its legal system, by sanctioning such an obvious crackdown on political dissidence, this sentence will guarantee the denigration of its own criminal justice system and penal procedures to actual lawbreakers within the country.
There are several dangerous precedents being set by this mass death sentence, the most obvious being the absolute lack of a fair trial opportunity afforded to the defendants. Reportedly, the mass death sentence was passed down after a 2-day summary proceeding, and was handed down en masse, i.e with no efforts made to distinguish individual culpability.
The more troubling problem however, is the obviously flawed overarching legal framework that permitted the conduct of a criminal trial in such a summary manner. That permissibility was sanctioned by the fact that the Muslim Brotherhood has now been designated a terrorist organization by the Egyptian Government, their stance echoed by a few other Arab countries, notably Saudi Arabia. Having said that, this designation as a terrorist organization is far from reaching international consensus, and the treatment of the Muslim Brotherhood is reflective of the growing trend on the part of nation states to use the phraseology of terrorism to suppress political opposition.
Ever since the first major instances of hostage taking in the 1990s, the international community has been unable to arrive at a uniform definition of terrorism, since it would inevitably criminalize activities of political protest, liberation, or any form of opposition to an established government. Hence, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, recognizes struggles against racist regimes or alien occupation as struggles of national liberation covered by the armed conflict paradigm of international law, and not the law enforcement paradigm, in part recognizing the potential legitimacy of such struggles.
Thus, the phrase ‘one man’s terrorist is another man’s freedom fighter’ is a phrase often used in international legal circles, preventing a consensus on developing an umbrella definition of terrorism, a dilemma acknowledged by Egypt’s representative during discussions at the Legal Committee of the General Assembly in 2012. Instead, States have had to settle for criminalizing individual activities that could comprise terrorism, such as hostage taking, interfering with aviation and marine safety, and generally activities purely targeted at the destruction of the civilian population.
What is significant however, is that in the mushrooming of terrorist treaties post September 11, a trend of labeling any activity opposed to Government as terrorist offences began, gaining momentum with the general public outrage towards the concept of terrorism, irrespective of the amorphous nature of the concept. While using the terminology of criminal law enforcement to suppress political dissidence and framing as criminal offences acts of protest is nothing new, the implicit sanction now given to state activity purportedly aimed at curbing ‘terrorist’ activity, is providing cover for authoritarian states to repress any opposition to their power, or to retrospectively punish political opponents.
While international treaties on terrorism have thus sought to exclude from their scope activities which would generally be regarded as rebellion or revolt against a State, by stating that any such acts in furtherance of liberation and self determination shall not be so defined, several countries chose ‘terrorism’ as an excuse. Thus three of the regional treaties concluded in the Middle East and North Africa region, all of which Egypt is a party to, namely the Arab Convention on the Suppression of Terrorism, (Cairo, 1988), Convention on the Organisation of the Islamic Conference on Combating Terrorism, (New York,1999), Convention of the Cooperation Council for the Arab States of the Gulf on Combating Terrorism, (Kuwait City, 2004), are in contrast to other major regional and international treaties on terrorism, contain very narrowly drafted exceptions to the clauses. Many of these treaties define offences (Article 2 of all 3 conventions) and specifically provide that such acts shall be considered terrorism if committed against the figureheads of the established state, effectively enabling the controlling of political opposition or unpopularity.
Thus a group, which has historically been representative of Muslims’ political interests in Egypt, gets branded a terrorist organization, paving the way for harsher laws and summary procedures that depart from normal standards of criminal justice and the result being a mass death sentence.
This article in no way claims that the defendants sentenced to death have committed no wrong, or that the Muslim Brotherhood has not caused its fair share of bloodshed. It’s increasing use of violence to suppress dissidence and the oppressive tyranny of Mohammed Morsi is what led to his toppling in the first place. But calling a group a terrorist organization, in the post 9/11 era, has very profound implications, as it implicitly validates a set of special measures to be used in dealing with its actors, and offers neither the guarantees of due process and fair trial offered within the law enforcement paradigm, nor the right to participate in hostile action offered within the armed conflict paradigm.
Instead, what we have is a denigration and mockery of an entire justice system, a trial process that cannot even be imagined to have offered any chance to the defendants to prove their innocence, and a verdict that treats the very real danger posed by a potential violent murderer within the throngs of the brotherhood, with the ideology of misguided or radicalised youth within the same group. A political or religious ideology feeds off the flaws and weaknesses present in the system, and a mass death sentence will only exacerbate Egypt’s problems, while condemning hundreds of potentially less violent individuals.
Moreover, with the movement to abolish the death penalty gaining momentum in several parts of the world, the argument to retain it has largely rested on the assumption that it will be used sparsely, and only for the most heinous crimes, involving very grave injuries to life and limb, and loss of life. Imposing the death penalty so lightly will only serve to reduce the public’s fear of it, as history has shown that indiscriminate and unnecessary use of harsh punishments does not necessarily increase people’s fear of the state, but rather serves to strengthen their rebellion because the population perceives itself as having less to lose. A mass death penalty on such blatantly political grounds, will also have unintended effects among common criminals and the way they perceive their own justice system.
What is or isn’t politically expedient for Egypt’s power elite now is a different question. What is incontrovertible however, is that this mass death sentence, far from solving problems, only engenders more.
Linda Beatrice Louis