Holding Egypt Accountable for the Death of Moustafa Kassem Under International Law

[Todd Carney is a student at Harvard Law School. He holds a Bachelor’s degree in Political Science and Public Communications. He has also worked in digital media in New York City and Washington D.C.]

Last month, a dual American and Egyptian citizen named Moustafa Kassem, who had been arrested in Egypt, died in an Egyptian prison. Kassem’s death occurred despite the fact that paperwork had been provided to Egyptian prison authorities that should have secured Kassem’s release. Prior to Kassem’s death, the US had been making diplomatic overtures from levels as high as Vice President Mike Pence, but these overtures went nowhere.

While there is a significant political controversy around the failure to release Kassem, it also raises interesting legal questions in terms of whether Egypt violated international law and if so what can be done to hold Egypt accountable. This post seeks to answer those questions.

Background on the arrest

In August 2013, during the midst of Abdel Fattah el-Sisi’s bloody takeover, Egyptian authorities arrested Kassem on the basis that Kassem had been part of opposition demonstrations, which were illegal in Egypt. When Kassem denied that he was part of the demonstrations and tried to show he was an American citizen by providing his US passport, the arresting authorities stomped on his passport. All of Kassem’s associates claimed that the charges against Kassem were false and that Kassem had never been a political person. Nonetheless, Kassem was sentenced to 15 years in prison. Kassem had diabetes and a kidney issue, and the Egyptian authorities routinely denied him proper medical help for his condition.

Many diplomats pressed for Kassem’s release. In September 2018, Pence even brought it up when he visited el-Sisi. In response, el-Sisi promised to give the matter “serious attention.” Egyptian authorities assured Kassem and the US that Kassem would be freed if he renounced his Egyptian citizenship. In response, Kassem filed papers to terminate his Egyptian citizenship. Yet Egyptian authorities seemingly ignored Kassem’s documents and nothing changed for Kassem. After six months, Kassem became disillusioned with any hope for freedom and began a hunger strike, which inflamed his diabetic condition and caused him to die.

Is Egypt responsible?

Egypt has not provided an explanation of what exactly caused Kassem’s death, but based on the known facts the least culpable scenario for Egypt would be that the prison authorities’ negligent actions towards Kassem caused his death. The negligence would include Egyptian authorities not paying attention to either Kassem’s papers or his medical issues. There have been allegations of Egyptian officials acting negligently with other political prisoners in regards to their health.

A more culpable scenario is that Egypt explicitly wanted Kassem dead and purposefully delayed Kassem’s release and refused Kassem medical help. Regardless of the level of culpability, however, the fact is that Kassem was in Egypt’s care and Egypt is responsible for Kassem’s death on a practical level because of its failure to take basic actions such as following procedures for Kassem’s release and giving Kassem proper medical treatment.

To decide whether Egypt can be held responsible for Kassem’s death under international law, it is important to evaluate the facts under the Articles on Responsibility of State for Internationally Wrongful Act (ARSIWA). Article Two of ARSIWA stays that a state commits a wrongful act when the action is “(a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.”

Even if Egypt was simply negligent toward Kassem, Kassem’s death can still be attributed to Egypt. Article Four of ARSIWA make it clear that the actions of any governmental authority within a state is attributable to the state itself. As a result, the actions of government prison guards count as actions of Egypt, so in effect it was Egypt’s negligence that killed Kassem even in the least culpable scenario.

Given that the action is clearly attributable to Egypt, the key issue is whether Egypt violated one of its international obligations. Egypt is a party to the International Covenant on Civil and Political Rights (ICCPR). The ICCPR lays out a number of obligations that Egypt has violated with its treatment of Kassem. Article Six states that “[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” Kassem’s actions did not warrant being killed, he was not threatening violence and was not charged with a deadly crime, this all makes the case that Kassem’s death was arbitrary. Article Seven forbids “degrading treatment.” The conditions of Kassem’s imprisonment and the lack of attention to Kassem’s medical issues could be seen as “degrading treatment.” Egypt could be seen in violation of Article Nine, specifically that “[n]o one shall be subjected to arbitrary arrest or detention.” Given that Kassem’s associates claim he was arrested for simply being near the protests and that his passport was stomped on the ground when he tried to explain he was from the US.

What can be done to hold Egypt accountable?

Clearly the acts of the police and prison guards against Kassem can be attributed to Egypt and violated Egypt’s international obligations under the ICCPR. Under ARSIWA, therefore, Egypt committed a wrongful act.

As the injured state, the US is entitled to seek remedies from Egypt. Under Article 30, Egypt must “offer appropriate assurances and guarantees of non-repetition, if circumstances so require.” Though nothing will bring Kassem back, Egypt could issue an apology and offer compensation to Kassem’s family. Moreover, given the possibility of repetition, Egypt should provide verification that it will stop mistreating prisoners like Kassem.

If the US did demand a remedy and Egypt refused, the US could decide to go before the UN Security Council and seek sanctions. Alternatively, the US could enact unilateral sanctions. The US has imposed sanctions unilaterally against Russia in response to Russia’s attempted assassination of a former Russian spy and his daughter. Given that those US sanctions against Russia have been accepted by the international community, states would be unlikely to protest the US enacting sanctions in response to the death of one of its own citizens.

Will Egypt face punishment?

It is important to note that even if Egypt had never arrested Kassem, Egypt would still be responsible for wrongful acts under ARSIWA because Egypt has treated thousands of its citizens in the same manner as Kassem. Egypt’s treatment of its citizens violates ICCPR’s Article 19’s guarantee of “freedom of expression,” because these citizens cannot voice their opinions. Moreover, the conditions the protestors are kept in when arrested mirrors the treatment of Kassem, thus violating the same articles of the ICCPR.

Despite Egypt’s violations of its obligation under the ICCPR, the international community has made no attempt to punish Egypt. Only the EU has enacted sanctions related to Egypt’s treatment of its own citizens. The US has most likely not levied any sanctions because the US relies on Egypt as a strategic military partner. This relationship would almost certainly make a UN Security Council measure a non-starter because the US would veto any move to punish Egypt.

While the US did apply soft power to try to free Kassem by having the State Department and Pence press the issue, it could have enacted sanctions then if it really wanted Kassem free. Still, the fact that a US citizen has now died might force the US to finally take a tougher stance against Egypt. Other Americans remain imprisoned by Egypt and the US does not want a repeat of Kassem’s situation. Members of the US Congress have already called on the Trump administration to enact sanctions in response to his death.

Kassem’s rights under international law were violated prior to his death, yet the US did not step in and there was no other country willing to. Indeed, toleration of the Egypt’s broader rights violations of its own citizens indicates that much of the international community will ignore international law if they have other interests at hand, particularly military ones. The US should work with the UN and EU to told Egypt accountable under international law for the death of Kassem and for the routine human rights violations of Egyptian citizens.