EOHR calls upon the government to protect human rights in the counterterrorism legislation

October 2nd, 2014 by Editor

The Egyptian government amended Article 78 on the penalties imposed on those who receive foreign funds with the purpose of harming the interests of the country. This amendment came in the political framework of counterterrorism in order to drain the funding sources of the terrorist organizations, and along with the Security Council resolutions relevant to this issue, and in particular Resolution 2170 adopted in September 2014.

As the Egyptian Law on counterterrorism is concerned, Article 78 was amended criminalizing the person who requests “for himself or for a third party or accepts, or takes – even through an intermediary – from a foreign state, or those who work for its interests, or a legal person, or a local or an international organisation, or any other entity that is not affiliated with a foreign state and does not work for its interest, cash, or transferred money, or equipment, or machines, or weapons, or ammunition, or items like these or other things, or was promised of any of that with the intention of committing acts harmful to national interest, or acts like it, or acts that breach the country’s independence, or unity, or territorial integrity, or committing attacks that disrupt public security and safety”.

Reviewing the previous text of the Article, it appears that “legal and natural persons, local and foreign organizations and other agencies that do not belong to foreign countries” have been added to the criminal entities who receive funds with the purpose of harming the country. The previous Article in fact mentioned only the funds received from “a foreign state or somebody working for its interest”.

Disrupting national security is also included in the new text with the expression “committing an act harmful to national interests”. After the last amendment, it was included in the article itself “acts that breach the country’s independence, or unity, or territorial integrity, or committing attacks that disrupt public security and safety”, expanding the criminalization of the acts as well.

The text also expands the instruments that can be used by the receiver of the funding to achieve its goals, enabling them exclusively. Indeed it mentions “cash, or transferred money, or equipment, or machines, or weapons, or ammunition, or items like these” and concludes the sentence with the term “other things”, including all the possible instruments among which non-military equipment or weapons.

The old article limited the instruments sent by the foreign state to the defendant to “money and benefits” only.

As regards to penalties, the punishment of this crime has been changed from “strict imprisonment and a fine of at least a thousand pounds and not exceeding the sum given or promised to the defendant” to “life imprisonment and a fine of at least 500 thousand EGPs”.

If the offender is a public official, a public servant or a public parliamentary, or if the crime is perpetrated in wartime or for a terrorist purpose, death penalty is added, with the possibility of life imprisonment and a fine of at least 500 thousand EGPs”.

The recent amendment maintains the same punishment for all those who gave, offered or promised something mentioned with the purpose of committing the aforementioned harmful act and for the intermediaries of such a crime.

In the last paragraph of the amended Article 78, the area of discovery and confiscation of financing guides is expanded, because the old article stated that “the crime exists merely with the demand, acceptance, offer, promise or mediation in case it is concluded in a written form”.

However the amended paragraph in the new article states that “the crime exists if the demand is written on a paper or electronically”.

It is clear that the aforementioned amendments to Art 78 follow the same line of the Security Council in order to strengthen the international cooperation for counterterrorism after the escalating danger of the terrorist organization known as ISIS. The Security Council issued Resolution 2170 confirming the provisions of Resolution 2161 on imposing sanctions on individuals, groups, undertakings and entities associated to ISIS and ANF.

As a result, EOHR is concerned with the possibility that international, regional or national courts might find the regime of sanctions imposed by the Security Council incompatible with due process norms, such as the right to self-defence, and the right to an effective remedy.

Moreover, the Organization noticed that the resolutions and statements of the Security Council and the Office of the High Commissioner for Human Rights (OHCHR) are essentially focused on ISIS and its associated groups, and they do not address counterterrorism with a holistic approach.

However international terrorism in all its forms and extremism represent a continuous threat to peace and security for all the countries and the people and they must be holistically condemned and addressed by adopting a comprehensive, effective and uniform strategy and an organized international effort focusing on the leading role of the United Nations (UN).

Regardless of any pretext used by terrorists to justify their acts, terrorism has no justification. Terrorism under any condition and regardless of any alleged motivation, must be unreservedly condemned. The nature of the violence that characterizes terrorism also obliges the international community to focus on measures to eliminate terrorist organizations and to prevent terrorist acts in all the states.

Therefore statements and resolutions shall be issued by the Security Council and the OHCHR to combat international terrorism holistically without any reference limited to particular terrorist groups. The appropriate UN entities shall also create a framework and behavioural rules to assist states in enforcing the law in the field of counterterrorism through commitment to international law, including human rights, the humanitarian law and the rights of the refugees.

Hafez Abo Seada, president of the Organization, asserted that the current law on terrorism do not need amendments, unless to be consistent to the provisions of the last Security Council resolutions on counterterrorism, by adding an article which states (the need for international cooperation to prevent the transferring, funding, equipping, and passage of foreign fighters to a third state to conduct hostile acts, and for using modern means of communication among states).

Another article shall be added to expand the Egyptian jurisdiction abroad to punish those returning from other countries after participating in terrorist operations. Indeed, the Egyptian Law does not criminalize these acts, and since terrorism become an international crime, the Egyptian Law shall punish it even though it is not committed in Egypt, especially if the perpetrators are Egyptians.

On another hand, the Legislative Reform Committee is working on a complete draft on counterterrorism, including the definition of the crime of terrorism as a crime aiming at harming psychology and capital, terrorizing citizens, and achieving political purposes that threaten the Egyptian national security. The draft also specifies the forms of terrorism, according to its development, elements, and differentiation between them and the normal criminal act.

The proposal prepared by the National Security Committee derived from the “Legislative Reform” includes the way of dealing with terrorist entities, the ways to announce them, detect their funding sources, the means to drain terrorism sources, and the punishments according to the crime.

Finally, the Organization asserts that counterterrorism cannot take place without applying human rights international standards, since counterterrorism measures and the defence of human rights are not incompatible objectives, but they are complementary and strengthen each other. Therefore:

  1. The respect of human rights shall be ensured when suspects are arrested though they are terrorists, during their custody and trial; thus the state must ensure the right to a fair trial to those suspected of a terrorist act which is crucial to ensure the effectiveness of the counterterrorism measures, the respect of the rule of law and the justice achievement.
  2. Special or extraordinary courts shall not be established to deal with cases related to terrorism, since this is always inconsistent with human rights standards.
  3. Torture, cruel, inhuman and degrading treatment to extract information from people suspected of terrorism shall be prohibited as per Article 15 of the UN Convention against Torture. Torture is also prohibited during the legal procedures to obtain evidence, both inside the concerned country or abroad.
  4. The protection of civilians shall be ensured, since the Security Council has adopted on 15 August 2014 Resolution 2170 which reaffirmed that states must ensure the adoption of any measure aiming at combating terrorism in line with the international obligations and in particular with the International Humanitarian Law.

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