Human Rights Council Membership Requires Steps to Address Violations
A Briefing Paper by
the Egyptian Initiative for Personal Rights (EIPR) and Human Rights Watch (HRW)
Introduction
On 17 May 2007,
the United Nations General Assembly (GA) elected 14 new members to the world's
top official rights body, the Human Rights Council (the Council). When UN Member
States established the Council in April 2006 to replace the Commission on Human
Rights, they decided that members of the Council "shall uphold the highest
standards in the promotion and protection of human rights" and that they must
“fully cooperate with the Council.” The EIPR and HRW believe that the Egyptian
government does not meet these criteria. The General Assembly also committed
itself to "take into account the contribution of candidates to the promotion and
protection of human rights and their voluntary pledges and commitments made
thereto."1
Four of the 14
seats have been allocated to African states, and Egypt was elected to one of
them. The EIPR and HRW regret that only four African nations submitted their
candidacies for membership to the Council, thereby eliminating any real
competition between them and depriving the GA member states of the opportunity
to elect members with the best human rights records from among the continent's
54 states.
The EIPR and HRW
are also dismayed that governments with poor human rights records are currently
members of the Council, and that other governments with similarly dismal records
– including Egypt – sought membership this year. However, the EIPR and HRW
applaud the government of Egypt's willingness to submit itself to the frank
review of its record of serious and continuing human rights violations required
by the General Assembly resolution establishing the Council, especially given
the government's history of denying access to United Nations experts seeking to
provide an independent assessment of fundamental rights in Egypt.2
This briefing paper provides an analysis of
some of the pledges circulated by the Egyptian Government to GA member states
prior to the elections, which include voluntary commitments in the field of
human rights domestically and internationally and to which Egypt should now be
held accountable.3
I. At the
international and regional levels
The
Egyptian government pledged to work "to make the Human Rights Council a strong,
effective and efficient body, capable of promoting and protecting human rights
and fundamental freedoms for all."4
The EIPR and HRW welcome this commitment, especially in light of the Egyptian
government's attempts to weaken the Council's powers and even prevent its
creation in the negotiations that led to the Council's establishment.5
Many of Egypt's positions during the first year in the Council's life cast
serious doubt on the sincerity of its commitment to the Council's effectiveness
in promoting and protecting human rights. For example, during the Council's
fourth session, held in March and April of 2007, Egypt, together with other Arab
and Asian states, attempted to use procedural ploys to prevent the discussion of
a report on the ongoing human rights atrocities in Darfur that a
Council-appointed High-Level Mission prepared. Other African states took a more
principled position, including Ghana, Nigeria, Zambia, Mauritius, Senegal and
Cameroon.6
The EIPR and HRW call on the Egyptian government to show its real
commitment to human rights by making the lives of victims its foremost
consideration.
In
its pledges, the Egyptian government claimed that its national human rights
strategy is based on "providing an objective and credible response to… requests
received from international and regional human rights mechanisms and cooperating
with them in the fulfillment of their mandate."7
In fact, Egypt has never allowed any of the special rapporteurs of the Council,
or its preceding body, to visit the country in order to report on human rights
violations and propose recommendations aimed at curbing them.
Egypt has not responded to the Special Rapporteur on torture's repeated requests
for an invitation since 1996. Requests for visits from the Special Rapporteur on
human rights and counter terrorism, the Special Rapporteur on the independence
of judges and lawyers, the Special Rapporteur on freedom of religion or belief,
and the Special Representative of the UN Secretary General on human rights
defenders are also pending.8
The
Egyptian government pledged support for the United Nations treaty bodies, which
are charged with monitoring the implementation by states of their obligations
under human rights treaties, and to "periodically examine the state of the
implementation of human rights instruments to which Egypt is a party."9
In practice, however, Egypt is currently late in submitting a total of ten
mandatory periodic reports to six out of seven UN treaty bodies. Egypt's
periodic report to the Committee on Economic, Social and Cultural Rights, for
example, is more than ten years overdue.10
As
a member of the Human Rights Council, Egypt must now set an example in
respecting its treaty reporting obligations and in fully cooperating with UN
human rights independent experts.
During the first year, the Council dedicated a substantial portion of its time
to institution-building and to reviewing the mandates and mechanisms inherited
from its predecessor, the Commission on Human Rights. This process was open to
all states and stakeholders and not just to Council members. The role that Egypt
played during this year -- both individually and through regional groups in
which it is a member -- calls into question its commitment to the strengthening
of the Council and of its functions and mechanisms.
For
example, during the review of the Council's system of appointing independent
experts and rapporteurs to study certain themes or countries, known as special
procedures, Egypt pushed for these experts to be elected by of the Council
following nominations by regional groups. Under the current system, the
Council’s president appoints independent experts and rapporteurs following
extensive consultations with all stakeholders. While the current procedure of
appointment could be more open and transparent, replacing it with elections
risks undermining the system by leading to the selection of experts on political
grounds rather than on the basis of their relevant expertise and independence
and could have a chilling effect on the experts ability to do their jobs
effectively.11
Egypt also worked to support the adoption of a 'Code of Conduct' drafted by the
African Group to regulate the work of special procedures, instead of a manual of
operation prepared by the mandate-holders. The current draft of the Code risks
undermining the experts' independence and ability to fulfill their mandate of
promoting and protecting human rights. For example, the Code places restrictions
on the experts' right to identify their sources of information, to act upon the
allegations they receive of human rights violations, and to communicate with the
media about human rights concerns or preliminary findings of investigations.12
Moreover, contrary to its pledge to "promote the constructive role of NGOs and
civil society at large in the promotion of human rights at all levels,"13
the public statements by Egyptian officials in the meetings of the Council and
its working groups reveal the opposite approach: Egypt has sought to limit the
role played by civil society at the Council. For example, Egypt stated its
opposition to civil society playing a role in nominating experts for the new
body that would provide expert advice to the Council or for Special Procedures.14
The
EIPR and HRW welcome Egypt's commitment to ratifying the convention on Rights of
Persons with Disabilities "as soon as possible and as a matter of priority,” but
are concerned that the government refrained from treating with the same urgency
the ratification of the Convention on Enforced Disappearances, to which the
pledges include a weaker reference.15
The
organizations regret that no reference is made in the pledges to Egypt's
intention to ratify the Rome Statute establishing the International Criminal
Court, which Egypt signed in 2000. Similarly, Egypt has not indicated its
intention to ratify any of the international instruments allowing individuals to
submit complaints to UN bodies following the exhaustion of all available
domestic remedies, such as the First Optional Protocol to the International
Covenant on Civil and Political Rights and the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination Against Women.
Egypt also has not ratified the Optional Protocol to the Convention Against
Torture, which stipulates preventive visits to places of detention.
The
EIPR and HRW welcome Egypt's stated commitment to "upgrading the African human
rights system and to the strengthening of the role of the African Commission on
Human and Peoples' Rights."16
The EIPR and HRW note that the Egyptian government's continuing denial to grant
the African Commission's Special Rapporteur on Prisons and Conditions of
Detention in Africa’s five-year-old request to conduct a mission to Egypt runs
contrary to such a high-level commitment.
Furthermore, the Egyptian Government has not pledged to ratify the Optional
Protocol on the Establishment of an African Court on Human and Peoples' Rights.
It is also unclear whether the government intends to ratify the Optional
Protocol on the Rights of Women in Africa during its term, despite the promise
to "support regional and international processes that seek to advance the cause
of women's rights, the empowerment of women and gender equality."17
Rather, in its pledges, the government only commits to "continue to engage in
the examination" of these two milestone treaties.18
The
EIPR and HRW urge the government to implement the recommendations of the African
Commission on Human and Peoples' Rights, to fully cooperate with its special
rapporteurs, and to take immediate steps to ratify the core African human rights
instruments.
6.
Hosting of
North Africa Office of the High Commissioner for Human Rights
The
Egyptian government states in its pledges that it "looks forward to hosting the
new OHCHR regionaloffice for North Africa in Cairo."19
While the EIPR and HRW welcome a permanent UN human rights presence in the
sub-region, the EIPR and HRW stress that the regional office must enjoy the full
mandate of OHCHR for the promotion and protection of human rights in Egypt and
the rest of North Africa. UN officers must be able to conduct their work
independently and free from government interference, and to communicate and
collaborate freely with all human rights NGOs active in the region.
The
Egyptian government's pledges refer to current "historic steps in the direction
of political reform" and commit "to lifting the current state of emergency upon
the completion and adoption of a new anti-terrorism legislation," all in the
framework of "the momentum of the preceding two years and the achievements
realized."20
Constitutional amendments that Parliament approved in a party-line vote on 21
March and that Egyptian voters approved in a March 26 referendum enshrined some
of the worst aspects of emergency rule into the constitution.21
Judicial and civil-society monitors, including those from the ruling party’s
National Council on Human Rights, said that serious irregularities marred the
polling, and that the real turnout was a fraction of the official rate of
participation of 27 percent.
Changes to Article 179 of the constitution have effectively removed
constitutional safeguards requiring the government to obtain judicial warrants
before searching a citizen’s home, correspondence, telephone calls, and other
communications, when the government deems the activity being investigated is
terrorist-related. In such cases the president will also be allowed to send
cases to special “exceptional” courts or military tribunals which fall short of
international and regional fair trial standards, including the stipulation that
they be independent and impartial and that they should allow any party to the
case to challenge their impartiality. The amendments also authorize the security
forces to exercise powers of arrest that could lead to arbitrary, and
potentially indefinite, detentions.
Another of the adopted amendments outlaws any political party or political
activity “within any religious frame of reference or on any religious basis or
on the basis of gender or origin.” The ICCPR prohibits such broadly worded bans
on particular categories of political parties or political activity. Rather, it
guarantees to citizens, in Article 25, the right to take part in the conduct of
public affairs either directly or through freely chosen representatives and the
right to vote and to be elected in periodic and fair elections. These rights
entail participation in, and voting for, political parties, and may not be
denied on the basis of race, religion or gender, among other distinctions. The
present law violates the rights of supporters of a party that claims a religious
basis for its program to associate together and to vote for representatives of
their choice.
This amendment should properly be seen in the context of the government’s
continuing crackdown on the Egyptian Muslim Brotherhood, which, despite having
renounced violence for decades and despite being the largest opposition bloc in
parliament, remains banned in Egypt. Over the course of the past year, the
government has detained more than 1,000 members of the organization. Many were
held as long as eight months without ever being charged or brought to trial.
Others were first acquitted by civilian courts, promptly re-arrested, and
detained again pending a trial before a military court, whose procedures fall
short of international standards and whose decisions could not at the time be
appealed.22
On May 9, Parliament voted to strip two Brotherhood-affiliated members of
Parliament of their parliamentary immunity, days after the government briefly
detained them in the Nile Delta province of Munufiyya while they attended a
meeting to discuss the upcoming elections for the upper house of parliament.
The
EIPR and HRW welcome the Egyptian government’s pledge to “further strengthen the
national redress mechanisms available to all citizens with a view to enable them
to report any complaints and to guard against impunity of any kind,”23
particularly since torture in Egypt has become an epidemic, affecting large
numbers of ordinary citizens who find themselves in police custody as suspects
or in connection with criminal investigations. The Egyptian authorities do not
investigate the great majority of allegations of torture despite their
obligation to do so under Egyptian and international law. In the few cases where
officers have been prosecuted for torture or ill-treatment, charges were often
inappropriately lenient and penalties inadequate. This lack of effective public
accountability and transparency has led to a culture of impunity.
Provisions of Egyptian law that allow for prolonged, incommunicado detention
have in many cases made torture difficult to prove; by the time detainees are
allowed access to lawyers or forensic doctors, the marks of torture are often so
old that it is difficult to determine when they occurred.
Torture prosecutions have also been hampered by legal definitions of the crime.
Under article 126 of Egypt’s Penal Code, torture is limited to physical abuse,
occurs only when the victim is “an accused,” and only when torture is being used
in order to coerce a confession. This narrow definition improperly excludes
cases of mental or psychological abuse, and cases where the torture is committed
against someone other than “an accused” or for purposes other than securing a
confession. The result has been that officers, in the rare cases when they are
convicted of abusing detainees, receive light sentences. Opposition Egyptian
lawmakers have repeatedly and unsuccessfully submitted draft legislation to the
People’s Assembly that would change the law to fit international definitions of
torture.
The
EIPR and HRW also welcome the Egyptian government’s pledge to “encourage the
efforts of civil society, NGOs and the media to contribute as partners towards
the protection and promotion of human rights within the applicable national
legislations.”24
The EIPR and HRW hope that toward this end, the government will rescind its
order to close offices of the Center for Trade Union and Workers Services
(CTUWS). Security officers on April 25 closed the headquarters of the CTUWS,
which offers legal aid to Egyptian factory workers, educates them as to their
rights, and reports on labor-rights issues in the country. The Ministry of
Social Solidarity has blamed the CTUWS for inciting labor unrest around the
country.25
The
government’s closure of the CTUWS headquarters was the latest step in its
crackdown on the organization. On April 11, approximately 100 police officers
arrived at the CTUWS office in the Nile Delta town of al-Mahalla al-Kubra to
deliver an administrative decision ordering its closure. This came after General
al-Sharbini Hashish, head of the local council in the southern industrial town
of Naga` Hammidi, issued an administrative decision on March 29 ordering the
closure of the CTUWS branch there, on the grounds that it violated Egypt’s law
on associations, though the order did not specify how.26
The
EIPR and HRW further hope that the government’s pledge to “encourage civil
society groups…to contribute as partners towards the protection and promotion of
human rights within the applicable national legislations”27
indicates a willingness to remove legal restrictions on those groups. Although
Egypt's Constitution guarantees the right to freedom of association, Egyptian
NGOs operate in an extremely restrictive legal and policy environment. The NGO
Law (number 84 of the year 2002) enables the government to interfere with the
registration, governance and operation of NGOs in several ways. The law allows
for associations to be dissolved by an administrative order of the Ministry of
Social Solidarity and restricts the right of NGOs to seek and receive foreign
funding to support their activities. It imposes prison penalties on NGO members
and activists for offences related to their activities. In short, the law
"entrenches a system in which NGOs are treated as the children of a
paternalistic government."28
The
Special Representative of the UN Secretary General on Human Rights defenders has
repeatedly expressed her concern to the Egyptian government regarding the
hostile legal environment in which defenders operate in Egypt. In 2006 the
Special Representative reported that:
Law
84 of 2002 still severely compromises the right to freedom of association by
giving the government unwarranted control over the governance and operations of
NGOs. The law which took effect in June 2003 provides for criminal penalties for
so-called “unauthorized” activities, including “engaging in political or union
activities, reserved for political parties and syndicates” (Article 11). In
addition, it provides for up to six months in prison for receiving donations on
behalf of an NGO without prior ministry approval. Persons carrying out NGO
activities prior to the organization’s formal registration are also liable to a
three-month prison term.29
The
EIPR and HRW further hope that the government’s pledge to encourage the media to
“contribute as partners towards the protection and promotion of human rights
within the applicable national legislations” signals its intention to reverse
its recent crackdown on freedom of expression in the country and to reform
Egypt’s laws governing the media.
On
May 2, 2007, on the eve of World Press Freedom Day, a Cairo criminal court
sentenced Al-Jazeera journalist Huwaida Taha Mitwalli, who also works for the
London-based daily Al-Quds al-Arabi, to six months in prison for a
documentary she made about torture in Egypt.
The
sentence follows a string of threats to freedom of expression in Egypt. On April
14, 2007, security officers arrested television journalist and blogger `Abd
al-Monim Mahmud at Cairo airport as he tried to board a plane for Sudan to work
on a story about human rights abuses in the Arab world for the London-based
Al-Hiwar satellite channel. Mahmud, who is affiliated with the Muslim
Brotherhood, had recently written in his blog about his experience of torture in
2003, and prior to his arrest he spoke out about torture in Egypt at conferences
in Doha and Cairo and in interviews with journalists and human rights
organizations. He is currently in Tura prison, outside Cairo, awaiting trial on
charges of “membership in a banned organization.”
On
March 12, 2007, the Alexandria Court of Appeals upheld a four-year prison
sentence against `Abd al-Karim Nabil Sulaiman, a blogger who had criticized
Islam and President Hosni Mubarak. And on March 10, secular activist and blogger
Mohammad al-Sharqawi – himself a victim of police torture – returned home to
find that his laptop, which he said contained an unreleased video depicting
police abuse, had been stolen. Cash and other valuables in the apartment were
untouched.
On
October 31, 2006, a military court in Cairo sentenced Tal`at al-Sadat, a member
of parliament elected as an independent but affiliated with the suspended
opposition al-Ahrar party and nephew of late President Anwar al-Sadat, to one
year in prison for “insulting the military and the republican guard.”
On
June 26, 2006, a court near Cairo sentenced Ibrahim `Issa, editor of the
opposition newspaper al-Dustur, and Sahar Zaki, a journalist for the
paper, to one year in prison for “insulting the president” and “spreading false
or tendentious rumors” in connection with an al-Dustur article reporting a
lawsuit against President Mubarak and senior officials in the ruling National
Democratic Party. The two appealed the sentence, and on February 27, 2007, a
Cairo appeals court reduced the sentence to a US $3,950 fine.
Long-awaited amendments to Egypt’s Press Law passed in July 2006 left in force
Article 308 of the Penal Code, which imposes a minimum sentence of six months in
prison on journalists whose articles “comprise an attack against the dignity and
honor of individuals, or an outrage of the reputation of families.”
Article 179, which calls for the detention of “whoever affronts the president of
the republic,” also stays on the books, as does Article 102(bis), which allows
for the detention of “whoever deliberately diffuses news, information/data, or
false or tendentious rumors, or propagates exciting publicity, if this is liable
to disturb public security, spread horror among the people, or cause harm or
damage to the public interest.”
These
vague and broadly worded provisions in Egypt’s Press Law invite abuse and
contravene international standards of freedom of expression.
Conclusion
The
EIPR and HRW submit that Egypt has not upheld “the highest standards in the
promotion and protection of human rights,” and regret that Member States did not
“take into account the contribution of candidates to the promotion and
protection of human rights,” pursuant to General Assembly Resolution 60/251 when
electing Egypt to the Council. Nevertheless, as a member of the Human Rights
Council, this is now an opportunity to scrutinize Egypt's human rights record
and to ensure it meets the benchmarks it committed to prior to being elected.
1
GA resolution 60/251, paras 8 and 9. Available at
http://www.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf
2
Ibid, para. 9.
3
Egypt's pledges are available at
http://www.un.org/ga/61/elect/hrc.
4 Egypt's pledges, para. A
1.
5 For a full documentation
of the role Egypt played in the negotiations leading up to the establishment of
the Council, see the Egyptian Initiative for Personal Rights, "Egypt's Positions
regarding the Proposed UN Human Rights Council", 17 August 2005, available at:
http://www.eipr.org/reports/commission_05/commission_contents.htm
6 See Human Rights Watch,
"Human Rights Council: Act Now on Darfur", 22 March 2007, available at
http://hrw.org/english/docs/2007/03/22/darfur15542.htm
7 Egypt's pledges, para. B
2(4).
8
See Office of the High
Commissioner for Human Rights:
http://www.ohchr.org/english/bodies/chr/special/countryvisitsa-e.htm#egypt.
9
Egypt's pledges, paras A
10 and B 13.
10 These are the 5th
periodic report on the Convention Against Torture, the 4th periodic
report on the International Covenant on Civil and Political Rights, the 6th
periodic report on the Convention on the Elimination of All Forms of
Discrimination against Women, the 17th and 18th periodic
reports on the Convention on the Elimination of Racial Discrimination, the 2nd,
3rd and 4th periodic reports on the International Covenant
on Economic, Social and Cultural Rights, the 3rd periodic report on
the Convention on the Rights of the child (CRC), and the Initial report on the
Optional Protocol to CRC on the sale of children, child prostitution and child
pornography. See Office of the High Commissioner for Human Rights,
http://www.ohchr.org/english/countries/eg/index.htm.
11 "Special Procedures under
discussion in HRC working groups", 19 April 2007, ReformtheUN.org,
http://www.reformtheun.org/index.php/eupdate/3131.
12 Ibid.
13 Egypt's pledges, para A
5.
14 "Human Rights Council
Working Group on Review of Mechanisms and Mandates, Discussions on the Expert
Body," Council Monitor, International Service for Human Rights, 13- 24 November
2006, available at
http://www.ishr.ch/hrm/council/wg/wg_reports/wg_review_expertadvice.pdf.
15 Egypt's pledges, para. B
12.
16 Ibid, para. A 14.
17 Ibid, para. A 11. The
pledges' reference to "the African Court of Justice and Human Rights"
appears to indicate that the government intends to wait for the conclusion of
negotiations on merging the African Court on Human and Peoples' Rights and the
African Court of Justice, rather than following the example of the 23 African
states that have joined the human rights court, which is expected to start its
activities later in 2007.
18 Ibid.
19 Ibid. para. A 3.
20 Egypt's pledges, paras. B
8, 9, 10.
21 See: "Personal Rights in
Peril: The Counter-Terrorism Constitutional Amendment and its Impact on the
Legal Protection of Freedoms in Egypt" The Egyptian Initiative for Personal
Rights 18 March 2007. The report is available at:
http://www.eipr.org/reports/179_07/contents%20ar.htm.
22 Human Rights Watch,
“Egypt: Muslim Brotherhood Detainees Face Military Trials,” February 15, 2007
http://hrw.org/english/docs/2007/02/15/egypt15329.htm.
23 Egypt’s pledges, para 4
B.
24 Egypt's pledges, paras B
15
25 Human Rights Watch,
“Egypt: End Harassment of Labor Rights Group,” April 27, 2007,
http://hrw.org/english/docs/2007/04/27/egypt15781.htm.
26
Human Rights Watch,
“Egypt: End Campaign Against Labor Rights Group,” April 16, 2007,
http://hrw.org/english/docs/2007/04/16/egypt15696.htm.
27 Egypt's pledges, paras B
15.
28 Human Rights Watch,
"Egypt: Margins of Repression—State Limits on Non Governmental Organization
Activism", July 2005, Volume 17, No.8, available at
http://hrw.org/reports/2005/egypt0705/index.htm.
29 Report submitted by the
Special Representative of the Secretary-General on human rights defenders, Hina
Jilani- Addendum: Compilation of developments in the area of human rights
defenders, UN Doc. E/CN.4/2006/95/Add.5, para 517.
