FAQ: Law on the Treatment of Senior Military Commanders

The provisions of the law apply to senior military commander on active service whose names are designated by presidential decree, to apply for life. In other words, the designation of the commanders is left entirely to the president, to be determined without reference to specific standards and at his sole discretion. Neither military laws nor Law 161/2018 narrowly define the category of senior military commander.

The term could refer to military personnel tasked with leadership and command positions over the armed forces, as defined by Law 4/1968, which includes the president in his capacity as supreme commander of the armed forces, the defense minister in his capacity as general commander of the armed forces, the chief of military staff and the general command agencies, the commanders of the main branches of the armed forces and their leaderships, and the commanders of military zones and armies and their leaderships.[1]  However, Law 161/2018 does not refer to this category, leaving the president the absolute authority to determine those persons covered by the law, even if they are not included in that list, thus opening the door to impunity.

Law 161/2018 does not exhaustively enumerate the nature of the privileges that designated commanders could enjoy. It gives the president full authority to identify these privileges by decree and combine them with any other privileges enumerated in other laws.

Nevertheless, the law does explicitly specify some privileges that may be granted; for example, that designated commanders will receive the same treatment domestically as ministers, that they may be granted honors by force of law, and that they may enjoy the immunities and privileges of diplomatic personnel while abroad. Most importantly, the law explicitly provides for legal immunity against domestic prosecution for crimes committed within certain time periods

Ministerial treatment here refers to wages and pensions. All deputy prime ministers and ministers receive a monthly salary of the base maximum wage,[1] or LE42,000 per month[2]; in addition, their pensions are not subject to taxes or fees.[3] Ministerial pensions are calculated as ten percent of the adjusted wage for every year of service, based on the salary of the final year of service and provided the pension does not exceed the base maximum wage at the date of the end of service. Pensions are capped at the equivalent of 80 percent of the adjusted wage. If the pension comes to less than 25 percent of the adjusted wage, it is raised to that level, and if the minister vacates the position due to work-related death or total incapacitation, the pension is set at the equivalent to 80 percent of the adjusted wage. Partial months of service count as a full month in calculating all periods of service.

Under Law 161/2018, designated military commanders are treated like ministers only if they have not occupied the office of minister or higher. That is, if a designated commander has served as a minister or in a higher position, he does not receive this treatment. For example, if Field Marshal Tantawi were designated by presidential decree under the law, he would not receive the ministerial privileges specified in the law since he had previously served as defense minister and therefore already enjoys the privileges of a former minister.

Law 161/2018 does not specify the nature of the honors—whether military or military and civilian—leaving the matter to the president. Nor does the law define a particular time or occasion for the granting of these honors. If the president issues a decree for the granting of honors to designated commanders, they will be granted.

Military honors include: a) Military Order of the Republic; b) Order of the Sinai Star, first and second degree; c) Order of Honor Star; and d) Order of the Military Star. Civilian honors include: a) Order of the Nile; b) Order of the Republic; c) Order of the Nile; d) Medal of the Republic; e) Medal of Achievement; f) Medal of Virtue; g) Medal of Action; h) Medal of Sciences and Arts; and i) Medal of Sport.

Diplomatic personnel enjoy a set of privileges and immunities under the Vienna Convention of 1961. Law 161/2018 grants designated military commanders these same privileges while abroad throughout the duration of their service or duty, requiring the foreign minister to take all necessary measures to enact them. These immunities include: they may not be arrested or detained while abroad; their private domiciles may not be searched; their papers, correspondence, and private assets are immunized against search, seizure, appropriation, or sequestration; they enjoy legal immunity in criminal prosecution in the host state if they commit crimes abroad; they are exempted from judicial testimony; items for their personal use or that of their family members are exempted from all customs duties, taxes, and other costs; and their personal belongings are exempted from search unless they contain materials whose import or export is prohibited by law. Their family members living in the same residence enjoy these same privileges and immunities.

Legal immunity means that no legal action may be taken, including summons for questioning, against designated military commanders except with the permission of the Supreme Council of the Armed Forces (SCAF). Such permission can be denied of course, since the law specifies that SCAF must be consulted for permission before any investigation or questioning is conducted.

Under Law 161/2018, this immunity applies to investigations of crimes committed in the periods when the constitution was suspended and until the parliament assembled to assume its mission. That is, designated military commanders cannot be held accountable for involvement in any crimes committed between February 19, 2011 (suspension of the 1971 constitution) and January 23, 2012 (the seating of parliament) and between July 3, 2013 (suspension of the 2012 constitution) and January 1, 2016 (seating of the current parliament). They further enjoy future immunity against prosecution for any crimes that may occur during the suspension of the present constitution and in the absence of a parliament. If the current constitution and parliament were suspended, designated military commanders would enjoy the same immunity until the convening of a new parliament.

It is difficult to list all the incidents, crimes, and cases subject to prosecution during these two time periods, which constituted the most violent and lethal in Egypt’s modern history, and impossible to provide an exhaustive accounting of all the dead and injured. Nevertheless, critical events and massacres that stand out in the first time period when Egypt was under SCAF rule include  the killings at Maspero on October 9, 2011, the clashes at Mohamed Mahmoud Street in November 2011, the repeated clearing of Tahrir Square, and the dispersal of the Cabinet Sit-in in December 2011.

The second time period for which military commanders are given immunity began with the announcement by Abdel Fattah al-Sisi, then defense minister and now president, that he was removing the elected president and the declaration of “the war on terrorism” after he demanded and received a popular mandate. This period saw horrific bloodshed, including the violence at the Republic Guard and Nasr Road in July 2013, and the violent dispersal of the sit-ins at Rabaa al-Adawiya and al-Nahda squares in August 2013. No commanders given immunity under Law 161/2018 may be prosecuted for these and other crimes because they occurred while the constitution was suspended and before the parliament was convened.

Immunity against domestic prosecution for crimes occurring within these time periods means that these crimes will be wholly buried and the military personnel involved in them will escape punishment. In other words, under Law 161/2018, there will be no accountability for serious crimes committed during the period of military rule in 2011 and after the events of June 30, 2013. This includes the virginity tests on female protesters in Tahrir Square, the running over of demonstrators at Maspero, the beating and killing of protestors in the Cabinet clashes and on Mohamed Mahmoud Street, and the massacre of nearly 1,000 people in a matter of hours at Rabaa al-Adawiya and Nahda squares. In connection with these crimes, the Public and Military Prosecution are prohibited from taking any actions against military commanders designated by presidential decree, except with the approval of SCAF, which may reject all summonses and investigations. In turn, this means no accountability for offenders.

In December 2000, the International Court of Justice (ICJ) issued an important ruling in connection with an international arrest warrant issued by a Belgian judge for Congolese Minister of Foreign Affairs Abdoulaye Yerodia Ndombasi, who had served as the minister of education at the time of the case proceedings (Democratic Republic of Congo v. Belgium). The warrant sought to detain him in Belgium in connection with allegations of serious violations of international humanitarian law. The ICJ ruled that the Minister of Foreign Affairs’ legal immunity would lapse upon the completion of his service. The court reasoned that diplomatic immunity from foreign courts exercising universal jurisdiction was limited solely to presidents, prime ministers, foreign affairs ministers, and defense ministers as long as they were in office, but was no longer applicable once they vacated office.

This was the first modern case on violations of international law involving two states, with questions of extraterritorial jurisdiction and immunity arising from the application of a domestic law. The ICJ ruling reflects the international consensus in principle that serious crimes under international criminal law should not go unpunished, and that conventional restraints on criminal courts (jurisdiction and immunities) cease in regards to violations of international law. This idea has received growing support not only as a legal principle but also as a legal practice, in the rulings of national courts.

As such, the immunity granted under Law 161/2018 does not mean that senior military commanders cannot be prosecuted in foreign or international courts with universal jurisdiction. They are not covered by the immunity recognized in the ICJ ruling because they are not foreign affairs ministers or defense ministers. Moreover, receiving treatment comparable to ministers under a national law does not mean that they actually occupy the office of minister under the ICJ ruling. In turn, the immunity granted to senior military commanders before international or foreign courts is merely ink on paper.

Law 161/2018 considers commanders designated by presidential decree to be in life-long active service in the armed forces, which necessarily means they are prohibited from exercising political rights such as running for office and voting. Law 45/2014 on the exercise of political rights excludes officers and personnel with the primary, subsidiary, and auxiliary armed forces, throughout their service, from the exercise of the right to stand for office, vote, or vote in any referendum on the constitution. In this way, President Sisi ensures that military commanders still in service or even retired cannot compete with him as long as they are designated as senior military commanders by presidential decree under Law 161/2018. In exchange for legal immunity and certain privileges, the president guarantees that none of these commanders will set their sights on the presidency.

President Sisi, who ratified the law, wants to prevent any possibility of another General Sami Anan, who challenged him in the presidential elections this year. The new law differs from Law 133/2011,[1] which formed the basis for the prosecution of General Anan in the run-up to the elections. Law 133/2011 applied solely to SCAF members who, during 2011, reached the legal age to terminate their exclusion[2]; Law 161/2018 extends the scope of military personnel who are considered to be in service without restriction, leaving the matter to the president, which serves his interest by excluding all potential military competitors.