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Civilian referrals to military trials seemed to be subsiding in recent months following the early days after the military took power and sent thousands to its courts on a regular basis. But following last Friday’s fight between protesters and military forces near the Defense Ministry, some 300 civilians were once again referred to military trials.
Moreover, an amendment to the military trials law passed by Parliament Sunday will do more harm than good, human rights experts say.
“This is a failure of the campaign against military trials — this case is closed now,” says Heba Morayef, Human Rights Watch researcher for the Middle East and North Africa.
The amendments not only maintain the empowerment of the military regarding the tribunals enshrined in the 1966 law but additionally give it the legitimacy of a parliamentary vote.
Morayef says that by passing a law legitimizing the practice, Parliament has wasted the rigorous efforts of activists over the last year to end military trials of civilians.
Civilians arrested in fighting with security forces in November, December and February were referred to the general prosecution rather than military trials, unlike in previous clashes. This was seen as progress in the fight against the military trial of civilians.
In a further improvement, those tried before military tribunals in relation to clashes at Maspero in October were later referred to a civilian court.
The 300 people ordered before tribunals since Friday’s clashes make up the largest group referred to military court at once since the military’s first major raid on protesters in March of last year..
Dozens of those detained have been either acquitted or released on bail, while the majority are serving 15 days pending investigation of charges of illegal assembly, obstructing traffic, assaulting military personnel, belonging to a group that endangers the public security, and presence in a prohibited military zone, according to the No to Military Trials group, which has been campaigning against military trials for a year.
The military council refused to release the exact number of those detained, and asserted on Monday that the prosecution of those arrested near the Defense Ministry is standard military practice.
The discussion of the military trials law in Parliament started three months ago, when Supreme Council of the Armed Forces member Mamdouh Shahin presented a draft of the proposed amendments.
After numerous parliamentary discussions and other drafts and suggestions presented by MPs, the final law passed on Sunday was almost identical to the one proposed by the military.
The amendments removed Article 6, which allowed the president to refer civilians to military trials, and grants those who received sentences based on this article the right to appeal.
This article had been primarily used by former President Hosni Mubarak against Islamists, who now dominate Parliament.
Human rights activists criticize the Islamist majority in Parliament for tailoring the law to allow them to abolish the effects of Mubarak’s crackdown on them.
Morayef says that the changes to the law are not only insufficient, but also irrelevant to the current situation, where the military rules and is the one referring people to military trials.
“With people inside the military prisons and others still undergoing military trials, the law changes an article that has last been used by Mubarak in 2008. This is unacceptable,” says Morayef.
With the Muslim Brotherhood’s Freedom and Justice Party dominating Parliament and a high probability that the soon-to-be-elected president will come from outside their ranks, the removal of the president’s power to refer civilians to military trials also could favor the Brotherhood in the future balance of power between the legislative and executive branches.
For observers, the limited amendment left much to be desired.
After many lawmakers demanded its removal, the amended law retained an only slightly modified Article 48, which allows the military judiciary to determine its own jurisdiction and refer anyone to trial without offering justification.
The law also kept articles 5 and 7, which Morayef says served as the basis on which 12,000 civilians were tried in military courts in first nine months of the military council’s rule.
Article 5 allows the military trial of civilians when the incident occurs in a military zone, which also includes military-owned institutions “or places occupied by members of the military on behalf of the armed forces, wherever they are.” Article 7 allows for military trials in any case that involves a member of the armed forces. Another clause allowing the army to try minors also remains intact.
Morayef says that because the military deployed forces all over Egypt when it took charge in February 2011, it considers the entire country a military zone under Article 5. Military police are still deployed around the country and it remains unclear when they will return to base.
Because of Article 7, victims of military abuses have been prevented from bringing their cases to criminal courts over the past year.
Samira Ibrahim, who accused a military doctor of sexually assaulting her with a so-called "virginity test” after she was arrested in a protest last year, could only sue in a military court, and eventually lost her case.
Similarly, victims of the Maspero violence in October, who accuse military forces of running over protesters with armored personnel vehicles and shooting them with live fire, have issued complaints that the military court hearing the case is biased.
The Supreme Constitutional Court has yet to rule on whether the civilian or the military prosecution should hear the case, and in the meantime the military prosecution continues to conduct the investigation.
The law also keeps another article that protects the military from prosecution by civilians. A clause added to Article 8 by the ruling military council in May 2011 states that the military prosecution is the only authority that can prosecute armed services members for unlawful profiteering charges, even after their retirement, provided that the crime has happened during their service.
Parliament members Mohamed al-Omda, an independent, and Hussein Ibrahim, an MP from the FJP, called for an amendment that would allow civilians to appeal their military verdicts in civilian courts. Shahin objected to the suggestion, and Parliament ended up adopting Shahin’s wishes to keep the appeal process within military tribunals.
While the head of the legislative committee, Mahmoud al-Khodairy, insists that the law abolishes the practice of trying civilians in military courts, other MPs acknowledge that there have been compromises with the military.
“The project presented by the legislative committee is a middle-ground solution between the proposals presented by MPs and the opinion of the government and SCAF, so it’s considered a reasonable step forward,” said MP Wahid Abdel Meguid in a television interview following a parliamentary discussion of the legislation.
The return of the military trials of civilians is not prompted only by the newly passed law, but also by a wider acceptance of the practice among the public.
With growing public fatigue at the continued protests and a condemnation among a wide sector of the protesters’ decision to head to the Defense Ministry, the referral of civilians to military trials is starting to be condoned by more people in light of Friday’s violent clashes and allegations that protesters tried to storm the ministry.
Morayef says that there is a misconception propagated by the military and state media that those who violate the peacefulness of a protest will either be tried in a military trial or not at all.
“We’re not saying that there were no violations in Abbasseya — the government has the right to prosecute those that threw rocks but in a civilian court. We are not asking them to leave assailants unpunished,” Morayef clarifies.
Many find it strange that Parliament would pass a law tailored by the military at a time when the dispute between the Brotherhood and the military has reached public condemnation and threats.
Al-Ahram Quarterly Democracy Review editor Hala Mustafa says that, regardless of their political fights, the military and the Brotherhood continue to make all decisions through agreements between them as the most powerful forces on the political scene right now.
“No matter how much they escalate the political language, or threaten each other, at the end the balance of power between the two most powerful sides on the scene is what rules,” she says.
The law was rejected by human rights organizations, including the No to Military Trials group and Human Rights Watch.
HRW issued a statement Monday declaring that the amended law does not protect civilians from military prosecution, and criticizing Parliament for failing to do so while its Islamic majority has been the primary victim of this law for years.
HRW dismissed the amendments to the law as “the usual half-hearted, cosmetic attempts by the military to respond to criticism without limiting the military’s discretion,” and proposed the necessary amendments that would effectively end the internationally banned practice of trying civilians in military courts.
In its statement, HRW said Parliament should amend the law to limit the military trials subjects to members of the military facing charges of a military nature.
They also recommended the amendment of the law to allow the general prosecution to prosecute military personnel in cases of abuse against civilians. According to the statement, this is the only way the military would face justice for allegations it has faced, most seriously killing protesters and conducting virginity tests on female detainees.
As it has been the habit in cases of massive arrests, continuous protests since Friday have succeeded in forcing the release of dozens of those arrested in Abbasseya — mostly journalists, doctors, activists and students — while the majority of low-profile detainees who don’t belong to institutions that call for their release or have influential friends to hold up their pictures in protests remain forgotten in military prisons.