السيسي-وطنطاوي

The Military Coup in Egypt and International Law

The Military Coup in Egypt and International Law

Author: Raid Almflh

University of East London

Introduction:

After the post-cold war right now more than 474 military coups have happened, 46.9% of which were successful whereas 53% were unsuccessful. The most resent coup has occurred in Zimbabwe in 14 November 2017, although it has happened against a dictator and was bloodless, but it is quit early to predict if was the right step or not in this country’s contemporary history as this depends on many factors which we will through some light on them in this essay.
Before this coup and after 2013 there were four military coups in Egypt, Thailand, Yemen and Turkey in 2013, 2014, 2015 and 2017 respectively. However, the one in Egypt was the most notorious in recent history for many reasons: Firstly, it happened against the first democratically elected president in Egypt. Secondly, it was a bloody coup where the people who were killed in the first week estimated by more than 2000 people according to Human Rights Watch .Thirdly, the military has not transferred the power to an elected government, but the power has been remained in the military scope.
Consequently, this essay will examine this incident which occurred on 3 July 2013, legitimacy and illegitimacy of this military coup in view of international law in comparison with some military coups happened after the first world war. Also, how did the military coup gain the international recognition despite of the fact that it came to power unlike the constitutional process and has resulted in an autocratic regime? also some international initiatives to halt military coups in general.

I The Military Coup in Egypt 2013:

In brief, this happened on the 3rd of July 2013 when the military overthrew the first elected president Mohamad Morsi who had come to power through democratic elections on the 30th of June 2012. As a result of this 2000 people killed who refused the military grip, in addition to arresting more than 3500 Brotherhood supporters including some women and children resulting in a humanitarian crisis.
The United States and the European Union States did not strongly condemn this coup, but they raised human rights concerns publicly because of this the USA suspended US military and Financial aids to Egypt. Also, the EU Foreign Affairs Council reminded member states to suspend commercial weapons sales to Egypt. South Africa condemned the removal as serious breach of the AU law, prohibiting unconstitutional removal of a democratically elected president. Other African countries like Kenya and Nigeria, also condemned this coup, and the AU itself has suspended Egypt’s membership until restitution of constitutional order. In Geneva member states at Human Rights Council could not take a collective action on Egypt for geopolitical interests to some countries.
It is worth mentioning that deciding if this coup is legitimate or illegitimate involves throwing the light on legitimacy and illegitimacy of military coups in general in view of International Law. According to the prevailing view, a democratic military coup is an oxymoron which means that military officers in most coups abuse public trust and overthrow the existing regime to seize power in their own hands as dictators. I think that this view is right in most military coups cases. However, in some cases military coups oust dictators from their power such as the military coup in Portugal 1974, which means that not all military coups fall into this logic.

Indeed, there are many factors to distinguish between legitimate and illegitimate coups, in the other words any military coup is regarded legitimate in these cases:
1- The coup is against an authoritarian or totalitarian regime.
2- The regime refuses to make free elections or constitutional reforms.
3- The military responses to public interest.
4- The military facilitates free and fair elections within a short span of time, then ends once transferring power democratically to selected leaders.

After the Post-Cold War era, we had some clear examples for this idea -military coups which fell into this democratic scope. For instance, what happened in Portugal in 1974 (The Carnation Revolution) , when an army rebellion overthrew the fascist dictatorship on April 25th 1974 becoming a turning point in this country’s history. Military coup based on this idea can be useful circuit breakers, they can set countries on a different developmental path. However, this is rare for some reasons, military seldom sets up a sturdy civil and economic agenda. History after the Second World War is full of cases that fall into this dimension. For example, Chile’s military dictatorship lasted 17 years, Korea lasted 14 years, Taiwan reverted to democratic rule in 1980, but the process completed in 1996. Also, military coups can be against a dictator to replace him with a new dictator emerging from it, such as what happened to Argentina between 1930-1976 when experienced six military coups.

With regard to the military coup in Egypt in 2013 which is the core of this essay, it is clear that this coup caused a humanitarian crisis and contradicted constitutionalism, it obviously staged by the military against the elected president, the military has seized the power since 2013 transferring the power to its leader. Furthermore, they did not set up a strong civil and economic framework and establish solid institutions. For instance, the levels of corruption, poverty and unemployment are extremely high . According to the Central Bank of Egypt the US dollar exchange rate is £6.5927 on 14/1/2013 during Morsi’s rule, whereas the US Dollar exchange rate has exceeded £17.6039 EGP when writing this essay.

II International Law’s doctrine about military coups:

Democracies seem to be able, however, to resolve such clashes by means other than war, perhaps we might diminish and finally extinguish war between nations by developing international law and international institutions so as to reinforce democratic governments or deter attempts to overthrow them . However, International law has no mechanism how to protect these governments which come to power democratically, and even the United Nations did not draw the ways to protect such these governments on its charter, all we can find in this context, confirming the right of all citizens to participate in the political life of their societies without clarifying how to protect this right. Thus, the major human rights treaties spell out in some details the essentials of this right as the right of all citizens to participate in the political life, such as article 25 of The International Covenant on Civil and Political Rights. Also, article 21 of Declaration of Human Rights of 1948.

The United Nations does not intervene in internal political systems in countries as this considers internal affairs to all countries (article 7/2). Thus, nothing contained in the present charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the member to submit such matters to settlement . Moreover, the main target under its charter to maintain international peace and security (article 1), not to protect the political system of every country. Therefore, there was no general endorsement of a principle of democracy, also, no requirement that the government of a state to be a government should have been democratically elected or even that it should have the general support of its people . In other words, the principle of non-intervention extends to protect non-democratic regimes, such the regimes that come to power by military coups in relation to take action to preserve their power against their own people. For example, the UN and the USA condemned the military coup in Mauritania, although the regime came to power by a military coup in 1984. Consequently, legitimacy can exist in authoritarian and democratic systems alike.
However, governments can acquire such this legitimacy in view of this doctrine in different ways:
1- Traditional legitimacy evolves over time (for example, long term rule in dictatorships or inherited rule in monarchies).
2- Military coups can acquire this if they show their control on the country .

Military coups can gain legitimacy:

Recognition of a government is the formal acknowledgment by the recognizing state that the regime in question is the effective government and accordingly signifies a willingness to treat that regime as such.

The United Nations has never ever intervened to deter military coups or halt them, also has not suspended a member as a result of its undemocratic regime as long as no humanitarian crisis caused by militaries, in this case it intervenes to stop this crisis. For instance, the military coup in Haiti happened in 1991 to oust the elected president Jean Bertrand Aristide, but the international community intervened in 1994 not to protect the legal government, but to stop the humanitarian crisis caused by the military . So, we cannot consider this a clear evidence in the UN’s history to support legitimacy, then why they waited for 3 years to intervene . Also, there was another intervention against the military coup in Sierra Leone in 1997 after causing the military a humanitarian crisis there, where the UN supported the intervention of five African countries including Nigeria -although the government there came to power after a military coup- to return president Kabbah to power under chapter VII. This can be clearly seen in the UN’s resolution in this context, these words were used in the resolution to demonstrate the main reason of the intervention:
(2: Reiterates its call upon the junta to end all acts of violence and to cease all interference with the delivery of humanitarian assistance to the people of Sierra Leone).

How military coups achieve legitimacy?

In fact, it is a controversial issue, however, we can find the answer when examining some international doctrines in this regard. These were found as a result of efforts in recognizing military coups or not. These doctrines as follows:
1- Effective Control Doctrine (Traditional Approach):
States take four factors into account to recognize a new government: Popular support, effectiveness control, the ability to fulfil its obligations and stability and permanence. This doctrine was confirmed by British Foreign Secretary Lord Carrington in 1980 when he announced that: (We shall continue to decide the nature of the dealings with regimes which came to power unconstitutionally in the light of our assessment of whether they are able of themselves to exercise effective control of the territory of the state concerned, and seem likely to continue to do so). The effective doctrine is best to be described in draft documents preliminary to the 1950 passage of Resolution 396.
2- Estrada Doctrine: According to this doctrine a state recognizes all governments in all circumstances and at all times. It was enunciated by the foreign minister of Mexico Genaro Estrada in 1930. According to this doctrine a state recognizes all government in all circumstances and at all times.

3- Tobar Doctrine:

This doctrine was enunciated in 1907 by Tobar the minister of foreign affairs of Ecuador, then it was incorporated in two agreements in Costa Rica, Honduras, El Salvador, Guatemala and Nicaragua in December 1917 and November 1923. Under this doctrine states do not recognize governments that come to power by a military coup .

In case of Egypt, the international community and the United Nations had a controversial attitude when recognizing the military coup based on the traditional approach (Effective Control Doctrine) taking into account the effective control of the army ignoring the humanitarian crisis there.

In return, there are some initiatives and efforts in international law to deal with military coups in general trying to halt them and reinforce constitutionalism, some of them were before the First World War and other after the Second World War. These efforts in brief as follows:
I- Tobar Initiative: We have thrown some light on this when writing about the legitimacy of military coups, and reiterated by President Woodrow Wilson of the United States in 1937.
II- Stimson Doctrine: It is a policy of the federal government of the United States in 1932 to Japan and China, of non-recognition of international territorial changes affected by force. Also, the principles of this doctrine were used on the 23th of July 1940 under the declaration of the secretary states of the USA Sumner Welles on the non-recognition policy of the Soviet annexation and incorporation of Estonia, Latvia and Lithuania .

III- Betancourt doctrine (1959): This is related to the president of Venezuela Romulo Betancourt. Under this doctrine the Venezuelan diplomatic denied recognizing to any regime that came to power by military coup. Although the thesis was rejected later from the president Rafael Caldera, academics and intellectuals saw it a courageous defender of democratic principles.
IV- Washington Protocol 1992.
V- African Union: (Article 4 and Article 30).
Article 4 of Constitutive Act of African Union states:
((The Union shall function in accordance with the following principles:
(m) respect for democratic principles, human rights, the rule of law and good governance;
(p) condemnation and rejection of unconstitutional changes of governments)).
Article 30 states:
((Governments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union)).

VI- Federal Law in the USA reflects the same disdain for military coups by prohibiting, with certain exceptions, any financial assistance “to the government of any country whose duly elected head of government is deposed by military coup or decree.”11 The European Union made a similar commitment in 1991.

VII- Also, the British judicial system had an example of law case in this regard in case Somalia(A Republic) and Woodhouse Dark and Carey (Suisse) SA, the court held the plaintiff could not recover any money held by the company as the plaintiff had not been recognized by the United Kingdom as the interim government in power at this time. The judge identified several criteria which should be considered by British Courts when determining whether a government is the sovereign government of a state, for example:
(a) Whether the entity is the constitutional government of the state.
(b) The degree, nature and stability if administrative control.
(c) Whether the British government has any dealings with that government and the nature of these dealings.
(d) In marginal cases the extent of international recognition that has been accorded the government of that state .
In case of Egypt, the British government has a controversial view in this regard, where the government did not condemn the coup and the leader of the military coup had several visits to the UK and had been treated as if the elected leader there. It is evident from the foregoing case that the UK courts are able to make an objective decision concerning the international legal personality of a government based on factors other than the official position of the UK government.
On the other hand, the United States regarded recognition as a political weapon, not as something to be granted as a matter of international obligations.

Conclusion:
It is clear that the United Nations had no mechanism to deal with the military coup in Egypt, and even did not suspend it from attending the sessions of the UN, in spite of the humanitarian crisis that occurred there. Also, the international community had the same controversial position excluding the African Union which acting strictly to stop this issue. Thus, the UN should have treated this military coup as the coup which happened in Haiti in 1994.

The United Nations should have ways to deal with this issue, however, this cannot be achieved unless we improve the UN’s duty itself to make it more independent financially and functionally.

The international community failed to stop Egypt’s coup or unwilling to protect the legal government for geopolitical interests, the only serious effort was adopted by the African Union which insist on protecting constitutionalism by developing strict mediums to stop all attempts which threat the stability of the continent.

Bibliography:
1- Brad R Roth, Secessions, Coups and The International Rule of Law: Assessing the Decline of The Effective Control Doctrine, Melbourne Journal of International Law, Vol.11, (2010).
2- El-Chibani Mansour, Democracy in International Law Between legitimacy and Power (Beirut, Arabic Unity Press ,2017).
الشيباني منصور,الديمقراطية بين الشرعية والقوة(بيروت: الوحدة العربية للنشر,2017).
3- Gregory H. Fox and Brad R. Roth, Democratic Governance and International Law (Cambridge:
Cambridge University Press, 2000), P123.
4- Ian Brownlie, Principles of Public International Law, Seven Edition (Oxford: Oxford University Press,2008), P 294.
5- Rebecca M.M Wallace and Olga Martin-Ortega, International Law (London: Thomas Reuters(Legal) Limited), The Sixth Edition 2009.
6- Ozan O. Varol, The Democratic Coup, Harvard International Law Journal, Vol.53, No.2, (2012).

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