10 - 16 January 2002
Issue No.568
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Al-Ahram Weekly Online 10 - 16 January 2002 Issue No.568 |
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Cruel and degrading
Sayed Qasem El-Masri* examines a case of mistaken jurisdiction
In its Arabic-language evening news bulletin of 12 December, the BBC reported that Dutch authorities had handed an Egyptian national over to Egypt. On arrival, he told the Egyptian authorities that his Dutch guards had beaten him severely. The authorities detained the guards and interrogated them to verify the charges. The Egyptian national seemed to have suffered several injuries and possibly had a fractured arm. The authorities then released the guards and the public prosecutor's office reported that, since the beating had taken place either on Dutch soil or aboard the Dutch airplane that bore the man to Cairo, it fell under Dutch sovereignty and was not subject to Egyptian jurisdiction.
So the story goes. I find it repulsive, and am almost incapable of imagining that the public prosecutor or any other official could issue such a statement. Egypt is a signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which entered into effect on 26 June 1987. This country also notified the international community that the convention had become effective as of the date of its publication in the Official Gazette, in accordance with Article 151 of the Constitution.
The convention not only prohibits member states from acts of torture in their territory (article 2), but also forbids other acts that do not amount to torture as defined in article 1 (article 16).
The Court of Cassation considers a "cruel act" to be any act that inflicts pain, no matter how slight, on the victim, even if no apparent injuries are inflicted. Such acts therefore include beatings that cause light injuries (court ruling of 14 April 1952). On the other hand, the convention applies the principle of the universality of jurisdiction, so Egypt has the right to exercise its jurisdiction in offences committed under the following conditions:
1. If the alleged offender is an Egyptian
2. If the victim is Egyptian
3. If the offence is committed on Egyptian territory, or on board a ship or aircraft registered in Egypt.
In the case I am discussing, the victim is an Egyptian national, and so Egyptian jurisdiction incontestably prevails. Further, the alleged offenders were on Egyptian soil at the time the charges were brought. Egypt therefore has not only the right but also the duty to exercise its jurisdiction so under Article 5 (paragraph 2) of the convention:
"Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction."
In other words, the case was entirely within the jurisdiction of Egyptian courts regardless of where the offence took place. The terms of the convention are clear on this point.
Even if we were to assume, hypothetically, that the Dutch guards had fled, the Netherlands would have been responsible for their extradition to Egypt under Article 8 (paragraph 4): "Such offences shall be treated for the purpose of extradition between State Parties, as if they had been committed not only in the place in which they occurred, but also in the territories of the States required to establish their jurisdiction."
If we assume that the guards had been escorting an Indonesian citizen to Indonesia, that the aircraft had made a stop in Cairo, and that the victim had complained to the Egyptian authorities that he was being subjected to beating and cruel treatment leading to the fracture of his arm, would Egyptian jurisdiction hold? The answer is affirmative. A preliminary investigation would be necessary, and, were the guards found guilty, the Netherlands would be notified that they had been arrested. One of two procedures could then be taken: either the case would be brought before the competent authorities to bring the alleged offenders to justice, or the alleged offenders would be extradited to the state demanding them with the purpose of exercising its jurisdiction.
These procedures would no doubt have been followed if the victim had been Indonesian. Since he was Egyptian, there was only one option. Is there any explanation for the statement allegedly issued by the public prosecutor's office?
* The writer is a member of the United Nations Commission Against Torture and Cruel Treatment.
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