Human Rights Watch was the most outspoken of several media outlets that wrote last week about the military trial of 25-year-old Coptic blogger Maikel Nabil for “insulting the military.” But I would take issue with the assertion in the sub-headline that it is the “Latest Unlawful Trial of Civilian before Military Court.” The problem is not that it is an unlawful trial, the problem is that it is completely lawful — and has more than 70 years of local precedent behind it.
Although the English-language media has given this free-speech case top billing, it has mostly ignored the machinery behind the thousands of other military court cases tried since the start of the revolution, and especially after the military assumed control on February 11. It has focused more on the qualitative aspects of the military’s increasingly coercive approach to public security since: one excellent example is British Channel 4’s five-minute video spot on allegations of military police torture during protests on March 6 and 9.
The video also gestures to the prison sentences of two to fifteen years the military courts have been summarily handing out to protesters, mostly for alleged weapons possession. The Egyptian media, particularly the state media, has made many brief “info dumps” of trial listings: here are the most recent for Al-Ahram and State TV (in Arabic). There has been no comprehensive summary of the courts’ activity in any language, and I don’t have the time or resources to make it one myself. You can see, however, that the case numbers in these links are in the 100s-300s for 2011 per military district, which I believe currently correspond to the 29 governorates (or even smaller units in Cairo). The military officer-judges on these courts have been able to churn through these thousands of cases with efficiency because the infrastructure to do so is already in place.
When al-Amn al-Markazi (Central Security Forces, aka the riot police) fled the streets of Cairo on the evening of Friday, January 28, and army tanks rolled out to fill the security vacuum and defend important public buildings, I remember that both a group of friends and my parents asked me if they were going to “declare martial law.” My answer to them was: it’s too late! Egypt has been in a state of martial law since the assassination of President Sadat and accession of Mubarak on October 6, 1981. But it was never called “martial law:” initially referred to as a “state of siege” (a part of the French legacy of Egypt’s legal system, but translated as “al-aḥkām al-ʿurfiyya”) in the 1923 Constitution, the institution was prettified and expanded as the Emergency Law (No. 162 of 1958). But I’m going to stick with the term martial law for clarity, particularly because it sanctions military trials for civilians.
This is the reality of modern Egyptian legal history: In the nearly 72 years between the declaration of martial law on 1 September 1939 and today, martial law has only NOT been in effect for five brief periods amounting to a mere nine years, mainly prior to 1967. The state’s changing justification for martial law subdivides this time into four periods: defense from WWII and facilitation of the Allies (1939-1945), war with Israel (1948-1980), suppression of Islamist terrorists (1981-February 11, 2011), and now, presumably, “counter-revolutionary thuggery.” The details of how martial law was used are naturally considerably more complicated.
Unlike states with common law like the USA and Britain, for which periods of martial law have operated as a suspension of the judiciary and imposition of rule by military fiat (known famously as “reading the Riot Act”), a French-inspired civil law system extensively legislates the conditions for declaring a state of siege, and the institutions under it. In 1939, martial law was written into the constitution and a supplementary law of 1923 that fleshed out its details. Its enactment created the post of Military Governor (which ended up being the Prime Minister, although this was the subject of controversy), who had the power issue executive legislation that either creates new offenses (with punishments) under the jurisdiction of military courts or moves moves current civil or criminal offenses to that jurisdiction. The Prime Ministers of the 1940s used this institution to increase the government’s power in diverse areas ranging from surveillance and censorship to agricultural and industrial supply, the labor market and foreign residents, trying tens of thousands without due process or appeal (this is the subject of my dissertation research).
Despite the changes of constitution upon the creation of the Egyptian republic, and the new stipulations of the Emergency Law of 1958, which added “state security courts” to the complicated jurisdictional mix, this World War II-era template has survived to the present day. In fact, the tenets of Egypt’s 1936 treaty with Great Britain nearly required the Egyptians to declare martial law in lieu of declaring war on Germany, and the occupying Allied army helped facilitate this permanent transformation of Egypt’s judiciary and politics. Put (over)simply, the hypocritical zeal of British liberal jurists in their suppression of colonial dissent in its Empire, transformed into the dual priorities of state sovereignty and geopolitical security for recently decolonized states during the war and into the Cold War, encouraged the elite to identify perpetual martial law with modernity and independence for 20th century Egypt.
Ending this pattern will therefore be more difficult than just ending the emergency law: it will require permanent changes in the constitution and a now four-generation-old cult of security.