From the Editors
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The Arab Spring could not be more textured as different governments, political interests, and international relations have uniquely shaped each nation’s uprising. Still, certain patterns have been common to this turning point in the Arab world. These have included burgeoning protests, state-sponsored violence against civilians, and the disconnected speeches of Arab heads of state to their empowered and teeming Arab streets. Emergency laws, or the codification of a legal abyss wherein absolute power is transferred to the executive and justified in the name of restoring or preserving national welfare, have also figured prominently in the epoch transformation of several Arab states.
Overturning these decades-old laws have constituted a key demand by protesters in Syria and Egypt. Yet it was at the height of these calls for political and social change that Tunisia, Bahrain and Yemen declared a state of emergency in the ruling elite’s desperate attempt to maintain power. In all cases, the suspension of civilian law is in conformity with the international human rights legal regime and reflects a derivative of British colonial rule.
Emergency laws and the Arab Spring
Emergency powers, especially those invoked during peacetime, reflect the preservation of control in situations where government is conducted by threat of force rather than by consent. Such has been the case in Egypt and Syria where states national emergencies have existed for decades.
Egypt has continuously imposed a state of emergency since 1967, suspending it only briefly in 1980 for eighteen months before reinstating it after the assassination of Anwar Sadat. Derived from Law No. 162 (1958), the laws are supposedly aimed at curbing drug trade and terrorism but have been systematically used against journalists, activists, and political opponents who threaten the regime’s firm hold. US cables reveal that the Mubarak regime used the laws to detain Muslim Brotherhood members for a few days up to a few months to limit their participation in parliamentary and local elections in 2005, 2008, and 2010.
Extended by parliamentary vote every three years, in 2006 Mubarak intimated that it would not be extended again. Despite his promises Egypt extended the state of emergency again in March 2010, which has gone unchallenged by the post-Mubarak government.
Unlike his deposed counterpart, on April 20th 2011 Syrian President Bashar al-Assad announced Decree Number 161 and effectively lifted the state of emergency cloaking Syria since Ba’thists assumed power in 1963. The Syrian regime had argued that continuous war with Israel as well as the threat of domestic terrorism justified the exceptional state.
Attempting to make legal the systemic violation of civil and political rights, emergency laws posed as legal cover for means aimed at preserving authoritarian governance. Such means included the creation of the Supreme State Security Court (SSSC), a processing plant for detaining political dissidents without trial, in 1968.
Assad replaced the state of emergency with Decree Number 54. Intended to regulate protests, the Decree mandates approval of a protest’s purpose, location, and slogans by the Ministry of Interior. It also preserves the Ministry’s right to change the protest’s location, start and end times as little as 24 hours before the protests scheduled beginning. The Decree also holds the organizers liable for any damage to public safety and property incurred during the assembly.
The regime coupled its guarded political reform with loaded warnings: upon issuance of Decree Number 54, Mohammed Shaar, the Interior Minister, told protestors “to refrain from taking part in all marches, demonstrations or sit-ins under any banner whatsoever.” Anti-government protests began in the northwest city of Baniyas only hours later.
In contrast, regimes in Tunisia, Bahrain and Yemen declared a state of emergency at the height of crisis in order to cling to power. While the suspension of civilian law did not protect Zine El Abidine Ben Ali from his disgraceful ouster, Tunisia’s state of emergency remains in tact.
Emergency laws imposed by Ben Ali in mid-January forbid the congregation of three or more people in public and permit the use of live fire against anyone disobeying orders. The post-revolutionary interim government voted to extend the state of emergency in mid-February, citing that the country was not stable enough to transition to civilian order.
Two months later on March 15th, and one day after permitting entry to 1,000 Gulf Cooperation Council troops tasked with squashing civilian protests, the Bahraini government declared a national emergency. Imposed only once before in 1973 and enshrined in article 36(b) of Bahrain’s Constitution, the emergency legal regime allows the government to restrict civilian movement, ban gatherings, ban NGOs, newspapers, and political associations, to make arrests and monitor communication.
Like Bahrain, Yemen’s declaration of a national emergency is a direct response to current uprisings. Ali Abdullah Saleh declared a thirty-day state of emergency on March 18th, hours after the government killed 52 people in a crackdown on protestors in Sana’a. Last invoked in 1994 during Yemen’s civil war, the emergency regime suspends the constitution, allows media censorship, and allows for detention without judicial process.
Perhaps ironically, although not coincidentally, the emergency regime, which legalizes the absence of law, is highly regulated. In Yemen, for example, the law mandates that the President submit the state of emergency to Parliament within seven days for approval. On March 23rd, Yemen’s parliament, barely meeting quorum, approved the state of emergency. Despite his grotesque disregard for the life of Yemeni civilians, Saleh’s adherence to procedural gestures indicates his desire to maintain legitimacy and power.
Enshrining derogations in International Human Rights Law
Invocation of the state of emergency in Tunisia, Bahrain, and Yemen has most closely reflected its intended purpose in the international human rights legal regime. The derogation clause also known as common article 4 because it is common to the International Bill of Human Rights, seeks to balance national security and human rights. It reads “[i]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
International law does not define a “public emergency” and what definition exists for it is derived from jurisprudence. The Human Rights Committee (HRC), the international body of experts that monitors compliance with the International Convention on Civil and Political Rights, has held that ‘not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation.’ It continues that derogation must be exceptional, temporary in nature, and proportionate to the exigencies of the circumstances. In no case does derogation permit the violation of fundamental rights including the right to life, genocide, forcible transfer, and the right to be free from cruel, inhuman, or degrading treatment.
The HRC mandates the proclamation of an emergency and refuses to recognize an emergency absent “submissions of fact or law to justify such derogation.”
However, derogations are nearly impossible to regulate since a state decides when derogation is necessary and provides its own justification without contest as evidenced by the cases of Syria and Egypt. Between January 1985 and May 1997, approximately 100 states and territories, or over half the members of the UN, have at some point been under a state of emergency.
Although subject to an elaborate legal regime today, the roots of the derogation clause are found in the British empire’s crude efforts to quell popular resistance to its hegemonic control in the late nineteenth and early twentieth centuries.
British empire, martial law, and emergency powers
Colonial agents charged with maintaining British empire viewed martial law, wherein responsibility to maintain peace and order is passed entirely from the police to the military and therefore outside the purview of civilian oversight, “as an essential resource…to defend imperial interests in the midst of an often very hostile local population.” During the nineteenth century, the British colonial administration developed emergency codes that applied during peacetime and supplanted the invocation of martial law.
In 1833, the Government passed the Act for the More Effective Suppression of Local Disturbances and Dangerous Associations in Ireland. The law, known as the modern ancestor of emergency laws, declared that dangerous circumstances rendered necessary extraordinary powers otherwise prohibited by common law. Throughout the nineteenth century, Britain legislated several additional laws that suspended constitutional protections in response to resistance waged by Irish peasantry (i.e., Insurrection Acts, Habeas Corpus Suspension Acts and Coercion Acts). In 1914, Britain legislated the Defense of the Realm Act (DORA), which empowered the executive to modify and enhance authority without reference to parliament, and spawned similar legislation beyond its mainland colony.
Britain continued to invoke emergency laws during the drafting of the international human rights system’s foundational charters. In fact, as the community of nations worked to enshrine the rights of the individual, Britain declared several states of emergency throughout its African and Asian colonies in order to suppress native demands for self-determination (i.e., Malaya, 1948; Gold Coast, 1948; Kenya, 1952; British Guiana, 1953). Accordingly, at the drafting table, Britain grudgingly agreed to extend the application of human rights to the colonies but insisted upon a derogation clause that would allow a Government to preserve its own interests at the expense of its population’s welfare. Hence common article 4 was amended from reading “in case of threat to ‘the interests of the people’ to ‘the life of the nation,’” thus reflecting the original purpose of emergency laws within British imperial governance.
In addition to the human rights legal regime, the British empire left its repressive mark within the structure of its former colonies as well. As put by Caroline Elkins, “advisers from Britain’s Colonial Office, who oversaw the crafting of police states throughout the empire, had a hand in drafting the new constitutions and legal systems that institutionalized coercion and political subjugation in Britain’s former colonial states. In the final accounting, repressive laws and undemocratic institutions, not peace and progress, are the primary bequest of the British to their onetime empire.”
Enduring relevance of emergency laws
Among the benefactors of British colonial benevolence are Israel and the Occupied Palestinian Territory (OPT), which have been marked by popular uprisings well before the advent of this current Arab Spring. British authorities extended emergency legal rule to mandate Palestine when it imposed the Palestine Defense Orders in Council of 1931 and 1937 empowering the High Commissioner to declare a public emergency and permit “collective punishment, property destruction, movement restrictions, deportation, and detention…”
Israel adopted the British Mandate law four days after the declaration of its establishment in Section 11 of the Law and Administration Ordinance thus enshrining the suspension of civilian rule into law.
Emergency laws constituted the military regime that governed Arab citizens of Israel from 1948 to 1966 and continues to regulate the activities of Mandate Palestine’s indigenous minority within Israel as well as the OPT, surpassing both Egypt and Syria in the length of its continuous imposition.
Like its authoritarian counterparts, Israel has abused emergency laws in order to maintain repressive order outside the purview of civilian oversight. For example, in 2010, Israeli authorities used emergency laws to expel Adnan Gheith, a Palestinian leader of political activities aimed at resisting the confiscation of Palestinian lands in his East Jerusalem suburb of Silwan. His lawyer, Rami Othman, explains that in the absence of sufficient evidence to indict Gheith, Israeli authorities invoked emergency laws to neutralize him by temporary forced removal.
The Association for Civil Rights in Israel challenged the emergency laws in 1999 arguing that it infringes free speech, the right to strike, the right to assembly, and other liberties. The Israeli High Court of Justice deferred rendering a judgment on this petition for several years until 2003 when it held that new conditions, namely the Palestinian uprising known as the Second Intifada, rendered the emergency laws necessary, thus further extending the legal regime that ascribes absolutist power to the executive.
By affording repressive measures the veneer of legality, the “only democracy in the Middle East” continues the legacy of British colonial rule and mirrors the less veiled tactics employed by their Arab authoritarian counterparts. The difference is that whereas Syrian and Yemeni authorities, for example, apply the emergency codes indiscriminately against their population, in Israel, the codes are primarily used to control its non-Jewish population thereby violating Article 4’s prohibition of discrimination. The distinction reflects Israel’s broader legal system, which distinguishes between Jewish nationals, Israeli citizens, and Palestinian civilians who do not benefit from the privileges of citizenship or nationality living as they do under occupation or in exile.
While Arabs ushering monumental transformation in their respective countries are demanding the right to engage in democratic politics, Palestinians are struggling to dismantle Apartheid policies crushing their aspirations for self-determination. The distinction does not necessarily make Israel’s emergency legal regime more reprehensible than that of its Arab authoritarian counterparts. It does, however, raise questions about the law itself.
For example, do emergency laws become more or less legitimate when deployed blatantly for the sake of persevering authoritarianism compared to its use by liberal democracies that institutionalize racial hierarchy and disparate access to education, housing, and employment? In the context of the Arab Spring, it works to mitigate Israeli narratives of Palestinian violence and renders Palestinian resistance to occupation and Apartheid as part and parcel of the movements sweeping the Arab world. The undemocratic and exclusionary governments may be vestiges of empire but today they represent an upheaval against local tyranny and its international guarantors.
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