Denver Journal of International Law and Policy

The presidential election, the final stage in Egypt’s turbulent transition, will begin May 23. With elections just around the corner, Egypt’s Higher Presidential Election Commission (HPEC) shocked many on Saturday by announcing that it had disqualified 10 of the 23 candidates running for Office.

Farouk Sultan, head of the Supreme Presidential Election Committee

On Tuesday, the committee overseeing the Egyptian presidential election upheld the HPEC’s decision, finding that the hopeful candidates offered no new evidence to overturn the decision. As Al Jazeera’s Mike Hanna reported from Cairo, “On examining the appeals of each of these candidates, the commission has announced that there is no reason to alter the initial decision.” Hanna also went on to explain that the “presidential election commission is the final arbiter in this particular case.” In short, the candidates cannot go to court over this decision, and the campaigns for these ten candidates are over.

The candidates were disqualified for a variety of proffered reasons, as is evident in evaluating the disqualifications applied to the three candidates who many considered to be among the top contenders: ex-spy chief Omar Suleiman, Muslim Brotherhood leader Khairat al-Shater, and ultraconservative Salafist, Hazem Abu Ismail. Mr. Suleiman was disqualified because he fell short of the required number of public endorsements. In contrast, Mr. al-Shater was disqualified for a previous conviction. Mr. Abu Ismail was meanwhile disqualified because his late mother held US citizenship, a fact he vigorously denied. Under a new Egyptian law passed after the uprising, candidates, their parents and spouses, must hold only Egyptian citizenship.

The disqualifications of these candidates will likely fuel speculation over the independence of the HPEC. Farouk Sultan, the head of the commission, is a former army officer and judge in the military court system. Some speculate that he and his fellow judges on the HPEC “are sympathizers with the old regime” and thus impartial decision makers. The Muslim Brotherhood also reported that other judges on the HPEC are holdovers from the Mubarak era and were appointed to the panel by the country’s military rulers.

With the candidate pool vastly reduced, the new top contenders are likely former foreign minister Amr Moussa, moderate Islamist Abdel-Moneim Abolfotoh and the Brotherhood’s backup candidate, Mohammed Mursi. However, Jon Leyne, an analyst for the BBC News, stated that this decision completely reshapes the prospects for the presidential election. Moreover, Leyne also explained that the Muslim Brotherhood must decide whether to endorse their back-up candidate, Mr. Mursi. A final list of candidates will be published on April 26, when the election campaign officially kicks off. 

On April 4th, the International Criminal Court (“ICC”) ordered Libyan authorities to surrender Moammar Gadhafi’s son, Seif al-Islam Gadhafi after the Libyan transitional government requested a second postponement in surrendering him.  Libyan rebel fighters arrested Seif al-Islam Gadhafi in November 2011 when he was attempting to flee to Niger and the country means to try him in their own court system first.  In its ruling, the ICC requested that Libya “proceed immediately with the surrender,” but Libyan authorities intend to challenge the jurisdiction of the court.

Seif al-Islam Gadhafi

The Pre-Trial Chamber of the ICC issued an arrest warrant against Mr. Gadhafi for crimes against humanity on June 27, 2011. The Libyan National Transitional Council confirmed the arrest of Mr. Gadhafi in November 2011, but requested a postponement of the Surrender Request until they could complete national proceedings regarding crimes charged against Mr. Gadhafi. In March, the Pre-Trial Chamber dismissed the postponement request.  Later in the month, Libya filed another postponement request.  The Court rejected this postponement request as well, holding that it had jurisdiction over Libya and needed to “start making arrangements in preparation for the surrender of Mr. Gadhafi to the Court without further ado.”

Libyan authorities are currently building a special prison in Tripoli where Gadhafi will be held while the militia is holding him in the western town of Zintan.  Once the prison is complete and Gadhafi has been moved, his trial will begin.  However, many people fear that Gadhafi will not receive a fair and safe trial in Libya.  In addition to the anger felt by Libyan citizens against Gadhafi, a Libyan court could sentence Gadhafi to death for persecuting and killing protestors during the uprising, while an ICC conviction could only result in a prison term.

While Libyans want to see justice in their own country for their citizens, Liz Evenson, senior counsel with Human Rights Watch’s International Justice Program has stated that it is “imperative that Libyan authorities start preparing to surrender Seif al-Islam … This is what cooperation with the court means.”  If Libyan authorities do not hand Gadhafi over to the ICC, it is possible that the matter will be brought before the Security Council, as a Security Council Resolution has ordered Libya to cooperate with the ICC.

Khairat al-Shater

, the deputy chairman of the Muslim Brotherhood has added his name to the list of candidates in Egypt’s presidential elections scheduled for May 23^rd.  The announcement came after nearly a year of statements by the Muslim Brotherhood that the party would not contest the presidential elections. Khairat al-Shater is a wealthy businessman who has made his money from textiles and furniture.  Throughout the years he has used his personal wealth to help finance the Brotherhood.

In 2007, al-Shater was convicted of money laundering for funding and managing the finances of the Muslim Brotherhood, while the organization was officially banned under former President Mubarak.  Al-Shater was sentenced to seven years in prison, but was released last March after Mubarak was forced from power.   Prior to his 2007 conviction, al-Shater spent five years in prison for a 1995 conviction for reviving the banned organization.  Al-Shater was arrested along with 48 other leaders of the Muslim Brotherhood following a meeting of the  Shura Council on January 2, 1995.  Under Egyptian law, the prior convictions could bar al-Shater from running for President, unless the military pardons him.  Earlier this week, SCAF pardoned Ayman Nour, who was convicted of forging petitions to register his political party in the 2005 elections, thus allowing him to also run for office.  By announcing his candidacy, the Muslim Brotherhood is forcing the military to either pardon al-Shater or confront the popular organization.

The decision to field a candidate comes after frustration over the lack of power that the Brotherhood has in Parliament.  Even though the Muslim Brotherhood won nearly 50 percent of the seats in the Parliament, the Supreme Council of Armed Forces (SCAF) continues to control the government.

Mahmoud Hussein did not explicitly cite the SCAF as the determinative factor in the Brotherhood’s decision to field a candidate, but he said that “threats to the revolution” motivated the party to nominate al-Shater.  It his statements, Hussein specifically cited the SCAF’s threats to dismantle the parliament and refusal to dismiss the military-appointed cabinet.

The Muslim Brotherhood’s decision to run al-Shater as a candidate has raised concerns both within the organization and among secularists.  The Brotherhood acknowledged the concerns of the military and liberals that the party could potentially claim political power in all branches of Egypt’s new government, including the parliament, the presidency, and the body charged with writing Egypt’s new constitution.  The divide within the party is further evidence of the potentially risky decision to nominate a candidate.  The decision to field a candidate was narrowly supported by the Brotherhood’s leadership.  The Shura Council voted 56-52 in support of al-Shater’s nomination.

Furthermore, the party’s reversal on its statements not to field a candidate could cause political challenges for the Brotherhood.  Officially the Brotherhood accepted the resignation of al-Shater, and thus the Brotherhood is not officially fielding a candidate, but given al-Shater’s history with the party few, if any, will see the distinction. This is also not the first time that the Brotherhood has gone back on its word to limit its role in elections.  The Brotherhood made a similar claim earlier during the parliamentary elections.  The Brotherhood pledged that it would only support a limited number of constituents in parliamentary elections, but the group ended up supporting candidates in nearly all of Egypt’s parliamentary constituencies.

Cell phone use in the Arab Spring

With the rise of hacker groups like “Anonymous,” coupled with the damage to Iran’s nuclear reactors left in the wake of the Stuxnet worm, 2012 has been coined the “Year of Cyber Security” by various media outlets. However, as the global community embarks upon what appears to be the epicenter of the Internet Age, privacy rights and freedom of speech on the internet creates tension with government domestic and national security and economic interests. Years before the advent of the internet, The United States Supreme Court cautioned in Keith the potential for a government to undermine the right to privacy inherent in the Bill of Rights through the unabated use of electronic surveillance in the name of “domestic security.”  Nearly four decades later and half-way across the globe, the Syrian Government has brought the fears of the Court to life; in an attempt to quell the recent uprising against the current political regime, the Syrian Government has begun blocking and intercepting text message communications between demonstration organizers and participants.

The Syrian government, using spyware  technology, issued orders to block all text messages containing terms such as “revolution” or “demonstration.” While this spyware technology is designed for protecting networks against spam and viruses, this same technology provides political regimes the ability to intercept their citizens’ e-mails and text messages, monitor Internet activity, and locate political targets. The orders from the Syrian Government are being carried out by the two of the largest mobile networks in the country, Syriatel and MTN Syria, using software provided by Dublin-based  Cellusys and AdaptiveMobile.

While AdaptiveMobile has yet to issue an official comment on the situation in Syria, AdaptiveMobile said in a statement that, in 2008, it provided MTN Syria with a standard SMS spam and MMS antivirus product for blocking spam, viruses, and inappropriate content.  However, “given the changing political situation in the region”, AdaptiveMobile did not renew the contract with MTN Syria last year.  Cellusys claims to have not sent workers to the country since 2009 and remains unaware of how its technology is being used today.  Despite the use of European technology by the current Syrian political regime to repress demonstrators, the supply of the software to MTN Syria and Syriatel did not violate any Irish or European laws: the transactions occurred prior to the 2011 EU imposed restrictions on sales of equipment to Syria that could be used for repression.

Even though the sales came about prior to the EU restrictions, human rights groups remain critical of both the companies. Several human rights groups and supporters have argued in the past week that both companies were irresponsible in selling filtering technology to Syria and ignoring the likelihood that the technology would be used to repress political dissidents.  Human rights groups assert that due diligence on the part of Cellusys and AdaptiveMobile would have revealed a high likelihood and propensity for the Syrian Government to use the technology to commit human rights violations.  The activists point to a U.S. State Department Human Rights report from 2008, which found that Syria’s security forces “committed numerous, serious human rights abuses” and “tortured and physically abused prisoners and detainees.”

 The news from Syria comes in the wake of the Arab Spring. Still fresh a year later in the minds of persons the world over, the use of Twitter, Facebook and text messaging were integral to organizing the revolutions and demonstrations that toppled autocratic regimes in Tunisia, Egypt and Libya. Through intercepting the private text messages and online communications of its citizens, the Syrian Government goes beyond just containing anti-regime sentiment and violates an often forgotten human right in today’s Facebook-addicted society: privacy.  As the international community begins to confront and monitor hacker groups like “Anonymous” in the name of domestic security, we must remember Syria’s censorship and interception in the private conversations of its citizens in the years to come.

Sources: BBC, The Guardian, CNN, MSNBC, NY Times

Four days of violent clashes between protesters and government officials in Tahrir Square have left at least 29 people dead and more than one thousand injured.  At least 100,000 protesters fill the Square due to their lack of confidence in Field Marshal Mohamed Hussein Tantawi and the Supreme Council of the Armed Forces (SCAF), the military council that took over following the fall of former President Mubarak.  The protesters fear that the military will not willingly cede power to a democratically elected president.

On Tuesday, Field Marshal Tantawi announced that Presidential elections will be held sooner than previously planned and no later than July 2012.  He further confirmed that the Parliamentary elections, scheduled to start this Monday, would proceed.  In addition, Prime Minister Essam Sharaf and his Cabinet offered their resignation to SCAF on Monday; many citing the violent treatment of protesters as the impetus behind their resignations.  Although there are differing reports, it seems Tantawi also reported that the resignations have been accepted, “but the current government will remain as a caretaker government until a new prime minister is named to form a new government.” Finally, Tantawi stated that the military is willing to hold a referendum on immediately transferring power to a civilian authority if that is what the Egyptian people demand.

From the outside, it may seem that these responses are appropriate and that the current government is attempting to address many of the protesters’ demands.  However, protesters are still shouting that they will not leave Tahrir Square until Tantawi leaves power.  According to a report from Amnesty International released earlier this month, the Supreme Council, “in the name of ensuring security and stability . . . [has] committed numerous human rights violations, ignoring the very demands for social justice and fundamental freedoms that triggered the uprising.” Sometimes the violence and brutality employed has exceeded that of  applied by Mubarak’s own regime.

Hossam Bahgat, executive director of the Egyptian Initiative for Personal Rights, stated that, “No one is going to accept another civilian government micromanaged” by the military commanders.  Therefore, the questions remain as to what credible civilian leader is willing to step into the role of Prime Minister if, as Tantawi says, SCAF will remain in control until the new government is fully formed, and whether the upcoming Parliamentary elections will really have much of an affect on the current state of Egyptian affairs?  Amr Hamzawy, a liberal parliamentary candidate, recently declared that if turnout is above 50% and the elections are genuinely free and fair, then the whole of Egypt can consider itself victorious. This may be true; but it may also turn out to be a disappointingly small victory.

By: Brandi Joffrion

Saif el-Islam al-Gadhafi

Libyan rebels captured Seif al-Islam el-Qaddafi, Moammar Gadhafi’s son, this past Saturday.  Within hours after his capture, the International Criminal Court’s (“ICC”) prosecutor, Luis Moreno-Ocampo, announced that he would be traveling to Libya becaus Seif-al-Islam is wanted by the ICC for charges of crimes against humanity.  However, Libya is not a member of the ICC Rome Statute, and it is arguable that Libya may not have an obligation under the U.N. Security Council Resolution 1970 to cooperate with the ICC’s regulations.  If Libya were to cooperate, it would have to hand over Seif-al-Islam or, at the very least, recognize that Libya is within the ICC’s jurisdiction to determine whether Seif-al-Islam can, and should, be tried in Libya’s domestic courts.

The rebels from the town of Zintan, who captured Seif-al-Islam, and the unelected interim government of Libya want him tried in Libya, where he would face the death penalty.  This is assuming, of course, that he is not murdered before trial, as occurred to his father.  The ICC, on the other hand, forbids capital punishment and would therefore not seek the death penalty against Seif-al-Islam.  Additionally, concerns have been raised that if Seif-al-Islam is not tried in Libya, Libyan citizens would be denied due justice.

Despite these concerns, it is argued that Seif-al-Islam should be tried in the ICC in order to prevent a repeat of the depraved proceedings that were brought against the Iraqi leaders.  In those cases, the leaders never received due process since they were never tried for their crimes of genocide due to the United States’ insistence that Saddam receive the death penalty.  According to the ICC’s statute, a sovereign nation is to be given priority to try its own citizens and the ICC is only to act as a court of last resort in the instance that the local justice system is in a state of “substantial collapse” or unable to operate in an impartial manner.  Currently, Libya has no working court system that will satisfy international standards and it plans to enforce the death penalty without regard to ICC standards.  Moreover, the Libyan people have demonstrated their willingness to take justice into their own hands without resorting to the justice system, as exemplified through Gadhafi’s death last month at the whim of his captors.

However, Libyan citizens could acquire justice through the ICC if it were to try Seif-al-Islam.  It is mandated that all ICC trials be televised, and either part or all of Seif-al-Islam’s trial proceedings could be held in Libya even if tried by the ICC.  Furthermore, it is possible to hold two trials: one trial in the ICC, in which the ICC would charge Seif-al-Islam with crimes against humanity, and a second trial in Libya’s domestic courts, in which Seif-al-Islam could be tried for a wider scope of crimes, which could include anything from corruption and abuse of state funds to murder and torture.

Trying Seif-al-Islam within the ICC would also set precedent for future Libyan officials who are in violation of international law and who are indicted for crimes against humanity.  As one of the “most serious crimes of concern to the international community as a whole,” it is argued that crimes against humanity should take precedence over any individual charges of murder or corruption that could be alleged within domestic courts.  In addition, the ICC provides for a fair and transparent process within the international criminal justice system by permitting the accused to raise defenses and summon witnesses, and by empanelling impartial judges, as well as requiring the heightened burden of proof  of proof beyond a reasonable doubt for any individual who may be convicted by the ICC.

Panalists Dr. Paul Williams, a Professor at American University, Lt. Col. Rachel VanLandingham of the United States Air Force, and Dr. Robert Hazan, a Professor at Metropolitan State College of Denver discussed the international and U.S. policy implications of the Arab Spring in a late afternoon panel of the Sutton Colloquium.  Dr. Williams started off the discussion with remarks about the U.N Security Council Resolution 1973 (“Resolution 1973”) that allowed for a no-fly zone over Lybia and authorized all necessary measures to protect civilians.  Dr. Williams compared Resolution 1973 to previous unsatisfactory action taken in Bosnia, Darfur and Rwanda.  Unlike previous humanitarian intervention efforts, Resolution 1973 could serve as a clear legal blueprint for future humanitarian intervention.

Barack Obama & the Arab Spring

Lt. Col. VanLandingham noted that Resolution 1973 strengthened the view that abuses in one country can affect global security and underscored the willingness of states to intervene to protect civilians.  She also stated that although Resolution 1973 was not a “reigning vindication” of the Responsibility to Protect Doctrine (“R2P”), it brought the doctrine closer to a binding legal norm.  Dr. Hazan stressed the importance of the U.S. and other like-minded nations being part of the humanitarian movement.  However, he also cautioned that now is the time for states to engage in active discussions regard humanitarian intervention.  Given the current state of the global economy states may find it more difficult to provide humanitarian aid in the future.

This cautionary language begs the question: how should a state balance the needs of its own citizens with the Responsibility to Protect and humanitarian aid and intervention.  As mentioned by Dr. Hazan, as the economic state of the Eurozone worsens and the U.S. economy continues in its state of instability, international humanitarian aid may take a backseat to domestic concerns.  By way of example, several U.S. polls found that a majority of Americans favor cutting foreign aid over other spending cuts.  It should be noted, however, that the percentage of the budget that is spent on foreign aid is miniscule in comparison to the expenditures such as healthcare and defense.

Resolution 1973 arguably brought R2P closer to a binding legal norm, however, R2P is a narrow doctrine limited to mass atrocities and implemented multi-laterally, i.e. via a Security Council Resolution.  In its international sense, R2P focuses on the responsibility of States to halt and prevent “mass atrocity crimes” (war crimes, crimes against humanity, ethnic cleansing and crimes against humanity).  If the situation in a state does not rise to the level of a mass atrocity, assisting States may not be as likely to intervene absent a Security Council Resolution or other political pressure.  States, however, should be cautious about withholding humanitarian aid in light of the notion that, as noted by Lt. Col. VanLandingham, abuses in one country can certainly impact global security.  Regardless of whether a state’s citizens are put in immediate danger, it should not sit idly by while abuses are committed in a foreign state.

Resolution 1973 can hopefully serve as a blueprint for future action.  As President Obama stated, “working in Libya with friends and allies, we`ve demonstrated what collective action can achieve in the 21st century.” A brutal dictator was removed from power without putting any U.S. troops on the ground.  Resolution 1973 should serve as a model for future intervention, however, the international community should be weary that humanitarian intervention could be undermined by political pressure to deal first with domestic concerns.

This Saturday, the University of Denver Sturm College of Law will be holding its annual Sutton Colloquium.  This year’s topic is  “Arab Spring and Its Unfinished Business: Law & Policy Issues.”

While the speakers and their academic interests are diverse, I think that all of the speakers should address one underlying and generally unasked question: Why should the audience, and Americans in general, care?  And, if Americans should care—as I imagine all the speakers will argue—is the Arab Spring a good thing for the United States?  Is the “democratization” (if that is what the Arab Spring can be called) of this region a good thing for the United States?

The Arab Spring

From my perspective, it is not.  As it relates to international relations, and international law, the Arab Spring has no effect on the United States because it will not affect the underlying balance of power in the region or worldwide, and it likely will not change our relations with those countries who participated in the Arab Spring.

First, the Arab Spring does not affect the United States because it will not change the underlying balance of power in the region—one State is not going to grower larger or more powerful because of this regional unrest.  And, theoretically, while Arab Spring States may engage in bilateral or multilateral agreements, they are unlikely to affect any power balance in the region.

Second, there will likely be no improvement in United State’s relations with the Arab Spring States because there is yet no showing that the Arab Spring will actually bring democracy to these States.  For example, recent news out of Egypt suggest that the military hold on power is tightening, possibly leading a military led dictatorship instead of a military leader led dictatorship (as Mubarak was a military leader prior to becoming president).

And yet, while Tunisia recently held elections shows progress, as the Iranian Revolution shows, electing Islamist parties doesn’t automatically mean peace and democracy.  While some scholars say that the Arab Spring will bring an era of post-Islamic States, implying a reduction in the threat of terrorism, the unrest in the region doesn’t necessarily mean more safety for now.

Therefore, when the Sutton Colloquium begins on Saturday, I hope the speakers take the time to tell us why it matters, because for the United States—as it stands now—it doesn’t seem like it does.