Muslim Brotherhood in Egypt complain to ICC


Lawyers acting for the Muslim Brotherhood in Egypt have submitted a complaint to the International Criminal Court (ICC) asking it to investigate alleged crimes against humanity carried out by the Egyptian military in the aftermath of the coup on 3 July 2013 [1]. 


The complaint provides evidence supporting allegations of murder, unlawful imprisonment, torture, persecution against an identifiable group and enforced disappearance of persons.  It also includes claims of bulldozers running demonstrators over and targeted shootings, for instance on 14 August 2013, when at least 627 people were killed when security forces stormed Rabaa al-Adawiya Square in Cairo to disperse a sit-in by supporters of the deposed president, Mohammed Morsi.


The ICC can only prosecute individuals when the national judicial system has failed to do so or is unable to do so.  There is no sign that the Egyptian judicial system is going to do so in these instances, so it is reasonable to examine whether the ICC can be persuaded to investigate them.



Major obstacle


However, there is a major obstacle to the ICC taking up this matter, namely, that Egypt is not a member state of the Court, nor has it ever been.  In other words, it hasn’t accepted the Court’s jurisdiction.  For this obstacle to be overcome, one of two things would have to occur:


(1)    The UN Security Council could impose ICC jurisdiction on Egypt, by referring it to the ICC under Article 13(b) of the Rome Statute of the Court (as it did to Sudan in 2005 and Libya in 2011).  This is not going to happen.


(2)    Under Article 12(3) of the Rome Statute, Egypt could voluntarily refer a particular event or time-period to the ICC, even though Egypt is a non-member state. There is a precedent for this – despite not being a member of the ICC, the Ivory Coast accepted the Court’s jurisdiction in April 2003 [2] and the Court agreed to exercise jurisdiction.


Obviously, the present Egyptian military regime is not going to invite the ICC in to investigate acts carried out by its own agents.  However, in their submission to the ICC, the lawyers for the Muslim Brotherhood assert that President Morsi's administration remains the lawful, democratically-elected government of Egypt – which cannot be denied – and they have submitted a declaration, in Morsi's name, accepting ICC jurisdiction over Egypt in respect of crimes against humanity committed since the coup.


Will the ICC accept jurisdiction as requested in this submission?  Very unlikely.  South African lawyer, John Dugard, formerly UN human rights special rapporteur for the Occupied Palestinian Territories, who is one of the lawyers concerned with the case, said:


"We hope and have good reason to believe the court will take this declaration seriously.  The only question is who may make a declaration accepting the jurisdiction of the ICC.” [1]


But that is a very big question?  In effect, the ICC would be making a judgement about who is currently the legitimate political leader of Egypt.  Doing that would set a precedent of which every deposed political leader would in future try to make use.  Most likely, the Court will find a way of refusing to make a judgement on the legitimacy of President Morsi – and take several years to do so.



David Morrison

14 January 2014