Why the Muslim Brotherhood (Wrongly) Believes the ICC Can Investigate

by Kevin Jon Heller

Gidon Shaviv called it. The Muslim Brotherhood does indeed believe that it can accept the ICC’s jurisdiction on an ad hoc basis because it is still the legitimate government of Egypt:

Just how successful the ICC action will be is unclear. Egypt is one of the few countries that have not accepted the ICC’s jurisdiction. However, Mr. Dixon and other members of the legal team said the court can act if it receives a declaration from the government accepting the court’s jurisdiction in a particular case. They argued that Mr. Morsi’s government is the still only legitimate ruler in Egypt and it has issued that declaration to the ICC.

“We hope, and we have good reason to believe, that the court will take this declaration seriously,” said John Dugard, a human rights lawyer from South Africa who is involved with the case and who has also worked with the United Nations.

With respect to Dugard, I think the Brotherhood’s efforts are doomed to fail. Had the Morsi government filed its declaration while it was still in power (as in the Cote d’Ivoire situation), that would have been one thing. But it didn’t — and although there are interesting political questions about the legitimacy of the military-led coup/revolution, I don’t think there is much question that the Brotherhood is no longer the government of Egypt. A number of states have condemned the Egyptian military’s actions (see Wikipedia here for a nice rundown pro and con), but none to my knowledge have refused to recognize the Mansour government. And just as importantly, representatives of the Mansour government have continued to represent Egypt at the UN.

Readers who know more about the recognition of governments after coups/revolutions should feel free to weigh in. But even if I’ve understated the legal strength of the Brotherhood’s position, I still find it inconceivable that the OTP will conclude that it has jurisdiction over the situation in Egypt. At the very least, the OTP will likely do what it did with Palestine’s ad hoc declaration — say that the issue is for the Assembly of States Parties, not the Office of the Prosecutor, to resolve.


14 Responses

  1. Once again, the world community seems to be somewhat incoherent here. Whereas so many other coups d’etat were condemned or the revolutionary government/junta/whoever never recognized, it saw no problem behind the coup d’etat in Egypt and seems to have reverted to the good old days of recognition on the basis of control. Interestingly enough, there seems to be reluctance to grant recognition for what Fareed Zakarias has termed “illiberal democrats”, at least if they are Muslim fundamendalists. 

  2. Not only I agree with Kevin, but I want also to remind to RJ that to speak about “free elections” in the Egyptian case is an utter simplification. Basically, Egyptians were obliged to choose between a man of Mubarak and Morsi. Is it a “free election”?

  3. It looks unlikely to result in prosecutions, but it is a measure that simultaneously draws attention to the fact, first of all, that human rights are being abused on a large scale, and second, that an elected government has been overthrown by a junta which is greeted by deafening silence. In some respects the combination of the ICC filing with a purported grant of jurisdiction based on the Brotherhood remaining the legitimate government of Egypt is actually quite savvy as a political measure.

  4. @maon, well, it’s not as if tehre was such a broad-ranging choice in the US, right? Also, compare it to the other prime examples of democratic overthrows. I am not sure how fair and open the elections in Sierra Leone back in the late 1990s were. 

  5. It seems that a way-out for those of the democratic-legitimist school in the context of government recognition is to argue that the fact that a government is “elected” is not sufficient to shield if from coups (in terms of recognition) if it is abusing substantive principles of democracy while in power. Not that I necessarily embrace that position, but it is plausible within this framework.

  6. i’m an egyptian and i would be dead before i let those terrorists rule my country again, they call it a coup if this was a coup then 25 jan revolution was a coup too…the army always side with the people, the army refused to support mubarack and morsi against the massive protests in 25 jan and 30 jun, more than 80 copts churches burned to the ground  and more than 400 soldiers killed in terrorist attacks and “nobody cares”
    egypt won’t be ruled by terrorists anymore we will have our presidential elections just after constitution voting in 15 jan

  7. Kevin, I doubt that the Situation Analysis Unit at OTP will simply present dodge the ball on ASP lap. The Palestine declaration was different. This is different.
    At hand is a declaration from a duly elected government of a State and an Occupied territory that is not a State. Granted the OTP may not find jurisdiction, in finding a lack of jurisdiction or sending the issue to ASP, but try not to oversimplify the work of OTP.

  8. Canuck,

    If you have a legal argument, I’d genuinely like to see it. But duly-elected or not, the MB is not the government of Egypt. Palestine has a far better legal claim to statehood than the MB has to represent the Egyptian government.

  9. Kevin, To date, it is worth reflecting that the OTP SAS has gained varied experiences in analyzing different jurisdictional questions in situations of Honduras, Iraq and Palestine.
    In case of Palestine, following a number of steps, the OTP in its decision of April 2012 noted that:
    “it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1).”
    In the end of the day, in case of Egypt, the OTP will be seized of a declaration under Article 12(3) and apply similar rigorous analysis to Morsi’s declaration. 
    Regardless of that, below from OTP in case of Art 12(3) is also relevant to underscore [I have inserted below a few additions for clarity].
    “Even if article 12 (3) was found to be applicable to the present communication, lodging of such a declaration does not mean that the Prosecutor will open investigations. Article 12 (3) declarations relate only to the scope of the Court’s jurisdiction. They do not trigger any investigation. [EMPHASIS]
    An investigation can only be opened following referral of a situation to the Prosecutor by a State Party to the Rome Statute, referral of a situation to the Prosecutor by the United Nations Security Council, or authorization by a Pre‐Trial Chamber of three judges to the Prosecutor to open an investigation.
    The Prosecutor has indicated that he has received several communications related to the situation context of Israel and the Palestinian Territories [OR EGYPT IN THIS CASE] and that he [SHE] will first carefully examine all issues related to the jurisdiction of the Court, including whether the declaration by the Palestinian National Authority [MORSI] accepting the exercise of the ICC meets statutory requirements.
    If the Prosecutor determines there is a reasonable basis to begin an investigation, he would have to request a Pre‐Trial Chamber to authorize an investigation. The Chamber would then determine independently if there is a reasonable basis to proceed with an investigation and if the case appears to fall within the jurisdiction of the Court. [EMPHASIS ADDED]
    For more in-depth reading: see http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Documents/OTP%20Preliminary%20Examinations/OTP%20-%20Report%20%20Preliminary%20Examination%20Activities%202013.PDF 

  10. Canuck,

    All of that is of little relevance. The first step in any preliminary examination is whether the Court has jurisdiction over the situation in question. More than 95% of communications are rejected summarily at that stage. With regard to Egypt, there is only one question the OTP has to answer through rigorous analysis: can a deposed government file an ad hoc acceptance of the Court’s jurisdiction on behalf of the state it used to govern? The likelihood that the OTP will say yes is, I dare say, effectively zero — to do so in the Egyptian case would conflict with essentially every state in the world’s attitude toward the current Egyptian government (which is to accept it as the government, even if they condemn how it came to power) and the UN, which treats the current government as the representative of the Egyptian people. There is absolutely no way the OTP is going to do that.

  11. You are again missing the point. 
    What you may opine in this situation is irrelevant. You are not sitting with the Morsi/Egypt declaration on hand on the 10th floor offices of the OTP at ICC. ICC lawyers and Analysts are.
    And, I don’t think they will oversimplify the issue as you do. We should give deference to OTP and WAIT, rather than simply dismiss something we have not seen or analysed. 
    Further, I don’t think that Professor Dugard would blindly lend his name to this declaration (successful or not) had he not thought of some merit behind such an undertaking.
    To close, lets not make the law and scholarship a punditry exercise that is omnipresent on FOX/CNN/BBC “experts”…
    That said, I do love your blog!

  12. Further, I don’t think that Professor Dugard would blindly lend his name to this declaration (successful or not) had he not thought of some merit behind such an undertaking.
    Why not? He acted as a lawyer who’s getting paid and did his best to present an argument. He did not act as a scholar. Privately, he may have a different opinion. But this way, he gets publicity and cash. Not too shabby. Besides, I do think the argument of the Morsi government has some merit .As I said at the beginning, we live in times of democratic legitimacy. In other cases, governments refused to recognize coup d’etats against ELECTED governments. Here, however, the problem was that it was so obvious that the Muslim Brotherhood is far from being a liberal-democratic group (although one may wonder whether Aristide was – it seems that it was enough that he would give in to the IMF pressure), weakening their stand.

  13. I do not think recognition is a legal necessity for which government can represent a State internationally. It is very important political and, as a result, very important for UN membership but it is not a legal necessity. Instead, the standard is which government is effective. There are some obvious times when this was not implemented (The Republic of China in Taiwan represented all of China until the mid 1970s and the Khmer Rouge continued to represent Cambodia well after they were driven from power) but scholars like, Benedetto Conforti, would say those were violations of the customary rule. 

    For the ICC, the more relevant parallel would be the Ivory Coast, I think. There the government accepted jurisdiction without acceding to the Rome Statute in 2002 for a limited amount of time (from what I remember). When fighting broke out between Ouattara and Gbagbo after the election, Ouattara (who won the election) quickly said that the Ivory Coast would accept the ICC’s jurisdiction. When Ouattara first said this he was the proper representative of the country but he did not have an effective government. After he got control of the Ivory Coast, Ouattara repeated his acceptance of the ICC’s jurisdiction, making a specific ruling on when he could represented the Ivory Coast superfluous. 

    There could be an argument that there is an emerging norm that coups that oust democratically elected governments (like the Muslim Brotherhood) are illegal under international law (this was part of the Jessup problem in 2011-2012), but it is probably not part of international law. In any case, my guess (and I could easily be wrong) is that the ICC in general is trying to stay out of very contentious issues, like Statehood and representation, that are only tangentially related to its purpose.

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