The Egyptian government has at least two proposed drafts for a new pieces of anti-terrorism legislation, one proposed by the Interior Ministry, the other by the Justice Ministry. I find the two drafts to be highly problematic for several reasons that I will get into below. But the problems arising from anti-terrorism legislation are not unique to Egypt. Most countries attempting to formulate anti-terrorism legislative measures are going to face similar problems, particularly as pertains to human rights.
The conundrum is that countering terrorism stresses one right, namely the right to security of person, over all others. Consequently, the measures taken to secure that right tend to undermine other rights. In a pragmatic world then the issue is not whether we should sacrifice some rights for the sake of security, but rather which rights we can sacrifice.
Certain rights are non-negotiable, such as the right to life. International human rights conventions could legitimately warrant a compromise on certain rights in exceptional circumstances, such as freedom of expression, as long as a legitimate purpose “necessary in a democratic society” exists. But there is no exception to the right of life.
Recognizing this, the UN body primarily responsible for monitoring states’ implementation of anti-terrorism measures, namely the Counter-Terrorism Committee (CTC), gradually began to reevaluate them to shift their emphasis towards human rights considerations. Now, it has become standard practice for the CTC to direct states to its directory of international best practices and good practices, dictated by Security Council resolutions implementing Security Council resolutions 1373 (2001) and 1624 (2005).
These two resolutions were critical in directing the post-9/11 drive towards adopting anti-terrorism measures. Resolution 1373 established the CTC, while resolution 1624 prohibited the incitement to commit terrorist acts. Shortly after the first resolution came out, the US enacted its Uniting & Strengthening America by Providing Appropriate Tools Required to Intercept & Obstruct Terrorism (USA PATRIOT) Act of 2001. A number of states followed its lead shortly after, including the UK, Australia, Canada, France, Germany and Japan.
Anti-Terrorism in Egypt
Egypt’s own war against terrorism, however, started in the 1980s. In fact, Egypt introduced terrorism as a crime in its penal code by virtue of law no. 97 for the year 1992. A little over 10 years later, the government announced that it was preparing anti-terrorism legislation. Decree 477/2006 created a committee that was responsible for this mission. Meanwhile, the 1971 constitution was amended in March 2007 to introduce Article 179, thereby creating a constitutional obligation to fight terrorism. People expected the anti-terrorism draft to be enacted soon after in order to regulate the mandate of Article 179. Although the government declared in December 2007 that a draft has been completed, it was never passed.
The idea of anti-terrorism legislation has only recently been resurrected and there confusion as to whether it was going to be in the form of amendments to the Penal Code or a piece of independent legislation. One of the more recent pieces of news coverage stated that the government was going to propose independent legislation but is now reverting to just amending the penal code. It is still unclear which drafts are actually being considered. But the two drafts discussed here are both official copies of by the Interior Ministry and the Justice Ministry and they are both standalone legislations.
Overall, both drafts are similar in construction and underlying philosophy, with some differences here and there, most notably in the criminal procedures section. For example, while the Interior Ministry’s draft establishes a special “Terrorist Crimes Prosecution” in Article 37, the Justice Ministry’s maintains the normal prosecution in Article 36. Also, Justice Ministry gives significant powers to judicial officers compared to the Interior Ministry draft’s Articles 36, 41, and 42) Both agree, however, on establishing specialized criminal courts for terrorism, the Ministry of Interior in Article 40, and Justice Ministry in Article 46).
A very conspicuous addition appears in the Justice Ministry’s draft at the end of the procedural section, where the president is given powers akin to those he possesses under a state of emergency such as evacuating certain areas and declaring curfew. In fact, the language used in Article 49 is directly derived from Articles 2 and 3 of Egypt’s Emergency Law. Both crimes and punishment sections are effectively the same.
As to the scope of what constitutes a terrorist act, the Interior Ministry’s draft does not criminalize incitement to terrorism. The Justice Ministry’s draft includes incitement in its definition of a terrorist, defining it as “any behavior done with the intention of fulfilling, preparing or inciting for” any of the purposes that it had listed in the preceding clause (Article 2) and then again in prescribing a penalty for incitement (Article 7). That said, The Interior Ministry’s draft penalizes “contributing” to a terrorist crime (Article 7), which might be an attempt to criminalize incitement using a more ambiguous term, in violation of the principle of legality.
The Principle of Legality & Defining Terrorism
The drafts suffer from many grievous defects, which have been criticized in a joint statement by several Egyptian NGOs. I decided to focus on one main defect, namely the nonconformity with the principle of legality in defining terrorist acts.
Defining terrorism is recognized as one of the key challenges to drafting anti-terrorism legislation by the Counter-Terrorism Committee Executive Directorate (CTED) in its discussion on human rights issues of relevance to anti-terrorism measures and in the last section of Chapter I of its Technical Guide to the Implementation of resolution 1373. The standard requires maintaining the principle of legality, which is another non-derogable right enshrined in Article 15 of the ICCPR. According to this principle, criminal liability can only be established under clear and precise provisions, which guarantee a minimum level of confidence in the law. As such, it necessitates precision in defining criminal offenses and proscribes overly broad language that “may be used by states as a means … to limit any sort of political opposition.”
Although there is no international agreement on a specific definition of terrorism, there are model laws that provide guidance to the legislator. One of those is the Commonwealth Model Legislative Provisions. I will compare their suggested language and structure in defining terrorist acts with that found in the Egyptian drafts.
In defining terrorist acts, the model law clearly distinguishes between two elements of the crime: the act and the intention. Accordingly, a terrorist act is defined as “an act or threat of action which…”, then follows a closed list of proscribed actions such as those that involve serious bodily harm or endanger a person’s life. This act then also has to be “intended … to: (a) intimidate the public or a section of the public or (b) compel a government or an international organization to do, or refrain from doing, an act.” So a terrorist act under this definition could take the form of a number of actions as long as the intention is one of the two listed above.
Similar to the model law, the definition found in the Egyptian drafts establishes act and intention. Unlike the model law, however, it does not clearly delineate that necessary distinction between act and intention.
The Interior Ministry’s draft defines terrorism as:
Every use of force, violence, threat, or intimidation with the purpose of seriously disrupting public order or endangering society’s integrity, interest and security whenever such use would injure people or terrorize them, …
While the Justice Ministry’s draft has minor drafting modifications,
Every use of the means of force, violence, threat, or intimidation, with the intention of disrupting public order, endangering society’s integrity, interest and security, or injure people or terrorize them, …
Content-wise, the definitions proceed similarly from there, with minor drafting edits and one addition by the Justice Ministry that will be noted shortly. Both drafts then provide a list of actions and, in the Interior Ministry draft, it is not entirely clear whether it is meant to be a list of acts or a list of intentions — an effect of sloppy drafting. The Justice Ministry improves the language by removing the confusing clause “whenever such use would” and it becomes clear, for the Justice Ministry’s draft at least, that it is a list of intentions. Nonetheless, both definitions are still problematic.
There are two overlapping problems with the Egyptian definition. First, it uses ambiguous language such as “disrupting public order,” “endangering society’s integrity, interest and security,” “causing damage to the environment,” “causing damage to the national economy,” “prohibiting or obstructing public authorities from exercising their activities,” “disrupting the implementation of constitutional, legislative, or executive provisions,” and “endangering people’s freedoms and public rights.” The Justice Ministry draft adds, “or any other constitutionally-protected rights and freedoms” as well as “damaging national unity.” Moreover, the Justice Ministry draft includes “any behavior done with intention of fulfilling, preparing or inciting for” any of the purposes that it had listed in the preceding clause.
Second, it flips the model law’s act-intention construct on its head. While the model law provides a list of actions that fulfill the act element of the crime, the drafts provide a similar list of actions that fulfill the intent element of the crime. In most such laws, the actions provided in the list are often already crimes that are punishable by the existent penal code. What elevates them from the level of a normal criminal act to a terrorist act is the intention. That intention is clearly defined in the model law and is limited to two things: intimidating the public or compelling the government to do something.
The Egyptian definition, however, uses ambiguous language to describe intentions and conflates acts with intentions. The reason for this is to broaden the list of intentions to include normal criminal acts such as “damaging public or private property” as well as vaguely worded acts such as “obstructing public authorities activities.”
The following example demonstrates the problem with the Egyptian definition.
Option 1: A terrorist act is an act that causes serious damage to property with the intention of intimidating the public.
Option 2: A terrorist act is the use of violence with the intention of causing damage to property.
In option 1, causing serious damage to property is an already punishable crime that is elevated to terrorist act status by the existence of an intention to intimidate the public. In option 2, use of violence and damaging property are both already punishable crimes, combining them together by having one of them fulfill the intent is not sufficient to elevate the crime’s status to that of a terrorist act. Thus, a wife who sets her cheating husband’s car on fire is using violence to damage property, but that is not a terrorist act. While the first definition allows for that distinction, the second does not. Hence, the Egyptian definition violates the principle of legality.
There is one last, but very important, feature that distinguishes the Egyptian definition from the model law. In defining a terrorist act, the model law adds an exclusion clause that accounts for things like protests and demonstrations. It is phrased as follows: “an act which (a) disrupts any services; and (b) is committed in pursuance of a protest, demonstration or stoppage of work, shall be deemed not to be a terrorist act within the meaning of this definition,” which is then qualified by stating, “so long…as the act is not intended to result in any harm referred to in paragraphs (a) serious bodily harm, (b) serious damage to property, (c) endangering a person’s life, or (d) creating a serious risk o the health and safety of the public.”
This exclusion clause acknowledges the potential for intentional or unintentional abuse of the model law’s definition of a terrorist act by states that would confound internationally protected rights such as the freedom to demonstrate with terrorist acts. Certainly the added qualification undermines to some extent the power of the whole clause. Nonetheless, its existence exhibits a level of nuance.
This level of nuance that acts as a safety net against the abuse of the law is very conspicuously absent from the Egyptian drafts.
Note: The author was missing a page from the Justice Ministry draft in the criminal procedures section so she did not have Articles 38 to 40 when writing this article. This is part of the reason why her discussion above did not tackle the procedures section.