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1. DR SALLY EL SAWAH
EL SAWAH LAW
Paris, Cairo And England & Wales
Importance of the Rule of Law for Social
Cohesion in the MENA Region
The Example of Egypt
October 28, 2020
El SAWAH LAW

2. TABLE OF CONTENTS
• Part I: Introduction to Key Concepts
• 1.The Rule of Law – Meaning, Elements and Implications
• 2. Sustainable Development
• 3. Social Cohesion and Trust
• 4. Resilient Societies
• Part II: Case Study – Egypt
• Civic Participation and Judicial Harrassment – The Hope Cell Case and Bahey-El-Din
Hassan
• Legal and Judicial Discrimination against Women – The Tik Tok &The Fairmont Rape Cases
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3. 1.THE RULE OF LAW
• Meaning in layman terms: the State must Respect the law.
• Legal definition: The Rule of Law is a set of Procedural and Substantive principles governing the
organization of the society that can be summarized as “Supremacy of the Law” and “Due Process”.
• Core Elements:
• Separation of Powers;
• general, accessible and clear laws/ Clarity, generality and predictability/foreseeability of the legal norms;
• equality before the law; e
• qual access to justice and independence and impartiality of the Judiciary;
• finality and effectiveness of judgments.
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4. 1.1.1. ARE HUMAN RIGHTS PART OF THE RULE OF
LAW?
• Human Rights as part of the Rule of Law: Evolution
• The preamble of the Universal Declaration of Human Rights stressed as essential “that
human rights should be protected by the rule of law.”
• The Friendly Relations Declaration of 1970 stated in its Preamble that the adoption of the
Declaration constituted a landmark “in promoting the rule of law among nations.”
• The 1948 UDHR and the 1970 Friendly Relations Declarations imply that the Rule of Law is the
implementation mechanism for Human Rights.
• Do they entail that they are two separate concepts, and that HR are not an element of the Rule of
Law?
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5. ARE HUMAN RIGHTS PART OF THE RULE OF LAW?
(CONTINUED)
• One of the First times where UN Institutions seemingly include Human Rights as part of
the Rule of Law as the UN GA identifies them as one of four problematic areas in which
multilateral solutions should be provided (the third goal was Human rights and the rule
of law).
• Resolution on TheWorld Summit Outcome GA Res. 60/1, UN Doc A/RES/60/1, 24 October 2005.
• It is permissible to say that Human Rights form an integral part of the Rule of law and
constitute overarching principles that guide the enactment of the legal norms.
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6. 1.1.2. EVOLUTION OF THE RULE OF LAW AT THE UN
LEVEL
• In 2003, the Security Council held its first thematic debate on the rule of law, entitled “Justice
and the Rule of Law: the United Nations Role”
• Thus, adoption of the UN Secretary General First Report on the Rule of Law and Transitional
justice in conflict and post-conflict societies, Report of the Secretary-General, UN Doc
S/2004/616 (2004), 23 August 2004.
• 2012: UNGA Declaration on the Rule of law at the national and international levels.
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7. THE EVOLUTION AT THE UN LEVEL – THE 2012 UNGA
DECLARATION ON THE RULE OF LAW – 24/9/2012 -
A/RES/67/1 (1/4)
• 2012: UNGA Declaration on the Rule of law at the national and international levels.
• Application of the Rule of Law to the UN and its organs – first time.
• Commitment by the States to respect the Rule of Law and protect Human Rights.
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8. THE UNGA DECLARATION (2/4)
• Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the
National and International Levels
• Preamble: Commitment to the rule of law and its fundamental importance …
for the further development of the three main pillars upon which the United
Nations is built: international peace and security, human rights and development.
• Many complex political, social and economic transformations before us must be guided by the
rule of law, (which is) the basis on which just and fair societies are built.
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9. UNGA 2012 DECLARATION (3/4 )
• Underlined the interrelation between the rule of law, Human rights and
Sustainable development.
• The General Assembly has established that human rights, the rule of law and
democracy are interlinked and mutually reinforcing, and they belong to the universal
and indivisible core values and principles of the United Nations. The advancement of the
rule of law is essential to achieve sustained economic growth, sustainable development,
eradication of poverty, hunger and the protection of all human rights and
fundamental freedoms.
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10. THE UN EVOLUTION RE THE RULE OF LAW (4/4)
• Binding nature of the Declaration?
• In principle, non-binding, as per the UN Charter.
• However, that does not mean that the UN Declaration is without any legal or factual effects.
• It is the outcome document of a high-level meeting of heads of state and government with broad
participation and a unanimous adoption.
• Therefore, the UN Declaration has strong authority.
• It is also identified as a “Declaration,” which reflects its particular importance for international law.
• Similarly to past Declarations such as the Universal Declaration of Human Rights of 1948.
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11. 1.1.3. UNGA DECLARATION – RULE OF LAW AND
PREDICTABILITY OF NORMS & EQUAL PROTECTION
• Article 2: …We also recognize that all persons, institutions and entities, public and private,
including the State itself, are accountable to just, fair and equitable laws and are
entitled without any discrimination to equal protection of the law.
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12. 1.1.4. UNGA DECLARATION – HUMAN RIGHTS AND
RULE OF LAW INTERRELATION
• 3: We rededicate ourselves to … respect for human rights and fundamental freedoms, respect for the
equal rights of all without distinction as to race, sex, language or religion, …
• 5. We reaffirm that human rights, the rule of law and democracy are interlinked and mutually
reinforcing…
• 6. We reaffirm the solemn commitment of our States to fulfil their obligations to promote universal
respect for, and the observance and protection of, all human rights and fundamental freedoms for all.
….
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13. 1.1.5. UNGA DECLARATION –INTERRELATION OF
RULE OF LAW AND SUSTAINABLE DEVELOPMENT
• 7. We are convinced that the rule of law and development are strongly interrelated and mutually
reinforcing, that the advancement of the rule of law at the national and international levels is essential
for sustained and inclusive economic growth, sustainable development, ...
• 8. We recognize the importance of fair, stable and predictable legal frameworks for generating
inclusive, sustainable and equitable development, …
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14. 1.1.6. DECLARATION –INTERRELATION BETWEEN
RULE OF LAW AND SOCIAL COHESION
• 11. We recognize the importance of national ownership in rule of law activities, strengthening
justice and security institutions that are accessible and responsive to the needs and rights of
all individuals and which build trust and promote social cohesion and economic prosperity.
• 12. We reaffirm the principle of good governance and commit to an effective, just, non-
discriminatory and equitable delivery of public services pertaining to the rule of law, including
criminal, civil and administrative justice, commercial dispute settlement and legal aid.
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15. 1.1.7. UN DECLARATION – INDEPENDENCE AND
IMPARTIALITY OFTHE JUDICIARY
• 13. We are convinced that the independence of the judicial system, together with its
impartiality and integrity, is an essential prerequisite for upholding the rule of law and ensuring
that there is no discrimination in the administration of justice.
• 14. We emphasize the right of equal access to justice for all, including members of vulnerable
groups, and the importance of awareness-raising concerning legal rights, and in this regard we
commit to taking all necessary steps to provide fair, transparent, effective, non-discriminatory
and accountable services that promote access to justice for all, including legal aid.
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16. 1.1.8. UNGA DECLARATION – JUDICIARY AND
GENDER EQUALITY (1/2)
• 16. We recognize the importance of ensuring that women, on the basis of the equality of men
and women, fully enjoy the benefits of the rule of law, and commit to using law to uphold their
equal rights and ensure their full and equal participation, including in institutions of
governance and the judicial system, and recommit to establishing appropriate legal and
legislative frameworks to prevent and address all forms of discrimination and violence against
women and to secure their empowerment and full access to justice.
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17. UNGA DECLARATION – WOMEN AND THE
JUDICIARY (2/2)
• 16. We recognize the importance of ensuring that women, on the basis of the equality of
men and women, fully enjoy the benefits of the rule of law, and commit to using law to
uphold their equal rights and ensure their full and equal participation, including in
institutions of governance and the judicial system, and recommit to establishing
appropriate legal and legislative frameworks to prevent and address all forms of
discrimination and violence against women and to secure their empowerment and full
access to justice.
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18. 1.1.9. UNGA DECLARATION – NATIONAL CIVILIAN
CAPACITY
• 19. We stress the importance of supporting national civilian capacity development and
institution-building in the aftermath of conflict, including through peacekeeping operations in
accordance with their mandates, with a view to delivering more effective civilian capacities, as
well as enhanced, international, regional, North-South, South-South and triangular
cooperation, including in the field of the rule of law.
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19. 1.2. UN SECRETARY GENERAL 2012 REPORT TO THE SECURITY COUNCIL ON THE
RULE OF LAW AND TRANSITIONAL JUSTICE IN CONFLICT AND POST-CONFLICT
SOCIETIES (S/2011/634) – (1/3)
• Includes a definition of the Rule of Law that is more comprehensive than the 2012
UNGA Declaration itself and the elements of the Rule of Law:
• For the United Nations (UN) system, “the rule of law is a principle of governance in which all
persons, institutions and entities, public and private, including the State itself, are accountable to
laws that are publicly promulgated, equally enforced and independently adjudicated, and which are
consistent with international human rights norms and standards. (Definition) It requires
measures to ensure adherence to the principles of supremacy of the law, equality before the law,
accountability to the law, fairness in the application of the law, separation of powers, participation
in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal
transparency (Elements).
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20. UN SECRETARY GENERAL 2012 REPORT ON THE
RULE OF LAW – (2/3)
• Explains the rationale behind the Rule of Law and the interrelation with
Human Rights and Sustainable development.
• “The rule of law is fundamental to international peace and security and political stability; to
achieve economic and social progress and development; and to protect people’s rights and
fundamental freedoms. It is foundational to people’s access to public services, curbing corruption,
restraining the abuse of power, and to establishing the social contract between people and
the state. Rule of law and development are strongly interlinked, and strengthened rule of
law-based society should be considered as an outcome of the 2030 Agenda and Sustainable
Development Goals (SDGs)”.
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21. UN SECRETARY GENERAL 2012 REPORT ON THE
RULE OF LAW – (3/3)
• Interrelation between Sustainable Development Goals, Trust, access to justice and
the Rule of Law.
• In addition, particular, Goal 16 is an enabling goal for Member States to generate national-level policy changes
that advance progress on other SDGs. The development of inclusive and accountable justice systems and rule of
law reforms will provide quality services to people and build trust in the legitimacy of their government. …. It
includes … empowering individuals and communities to make use of justice mechanisms to protect their
fundamental human rights.
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22. 1.4. A/68/213 – UNSG REPORT STRENGTHENING AND
COORDINATING UN RULE OF LAW ACTIVITIES – THE
JUDICIARY AND GENDER EQUALITY
• 46. Independent, efficient and competent judicial systems are the backbone of
the rule of law, providing legitimate means to solve conflicts, ensure accountability and
provide redress. …
• 47. The fight against impunity for sexual and gender-based crimes requires
special efforts ...
• 54. Women face particular obstacles to full access to justice and measures
should focus on enabling them to claim their rights, seek protection and redress
and settle disputes in conditions of real — and not only formal — equality.
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23. 2. SUSTAINABLE DEVELOPMENT – THE “LEAVE NO
ONE BEHIND” PLEDGE
• The 17 Sustainable Development Goals under the UNGA 2015 “Leave no one Behind” Pledge – In
September 2015, the General Assembly adopted the 2030 Agenda for Sustainable Development that
includes 17 Sustainable Development Goals (SDGs).
• Vision 8. We envisage a world of universal respect for human rights and human dignity, the rule of
law, justice, equality and non-discrimination; … . A world in which every woman and girl enjoys full
gender equality and all legal, social and economic barriers to their empowerment have been
removed..
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24. 2.1.THE 17 SUSTAINABLE DEVELOPMENT GOALS –
THE INTERRELATION WITH THE RULE OF LAW
• The New Agenda
• 35. Sustainable development cannot be realized without peace and security; and peace
and security will be at risk without sustainable development. The new Agenda
recognizes the need to build peaceful, just and inclusive societies that provide
equal access to justice and that are based on respect for human rights
(including the right to development), on effective rule of law and good
governance at all levels and on transparent, effective and accountable
institutions. (…)
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25. 2.2. THE 17 SUSTAINABLE DEVELOPMENT GOALS
• Goal 5.Achieve gender equality and empower all women and girls.
• Goal 16. Promote peaceful and inclusive societies for sustainable development,
provide access to justice for all and build effective, accountable and inclusive
institutions at all levels
• 16.3 Promote the rule of law at the national and international levels and ensure
equal access to justice for all.
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26. 3. SOCIAL COHESION AND TRUST - MEANING
• Not a legal concept
• A concept of social studies
• Meaning: “Trust is a multidimensional concept. The dominant sociological conceptualization of social
trust understands it as a person’s disposition or general belief that other people— regardless of who
they are—are willing to behave in ways that are not detrimental to the first person. It thus differs
from particularized trust—the trust in the people one is close to—which is less relevant to well-being,
social cohesion, and economic growth, and is sometimes even talked about as the ‘dark side’ of social
capital.”
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27. 4. RESILIENT SOCIETY
4.1. CONTEXT
• “Sudden changes brought on by natural disasters exacerbate problems that people face on a daily basis,
heightening conditions for conflict such as grievances, political opportunity, and mobilization. Disasters create
grievances that lead to conflict by causing mass disruption, impacting individual behavior, community and
political organizations, and the power relationships between individuals, groups, and the organizations that
serve them. In the immediate aftermath of a disaster, a country’s physical infrastructure is affected often
preventing the adequate distribution of food and medical supplies. Crops are destroyed, giving rise to food
shortages, famines, and localized conflicts over resources. As a disaster destroys many key social and political
institutions, it threatens political stability and creates a power vacuum and opportunity for warlords and
criminal gangs to usurp power…A natural disaster has the propensity to reshape society and along with it, its
ability to manage risk, grievances, and political change.”
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28. 4. RESILIENT SOCIETY
4.2. PURPOSE
• Create adequate public and societal response to significant adversity or risk such as, natural
disasters and armed conflicts, and to avoid social conflicts in their aftermath
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29. PART II: CASE STUDY – EGYPT
THE RULE OF LAW IS EXISTENTIAL TO
ACHIEVE SOCIAL COHESION AND
SUSTAINABLE DEVELOPMENT
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30. 2.1. EGYPT – THE LEGAL FRAMEWORK
• The adoption of a new Constitution in 2014.
• Egypt has ratified:
• UN International Covenant on Civil and Political Rights,
• Covenant on Social, Economic and Cultural Rights (since 1982)
• the Convention on Elimination of all forms of discrimination againstWomen (since 1981)
• the African Charter on Human and Peoples’ Rights,
• the Convention on the Rights of the Child (1990), and the Convention on the Rights of Persons
with Disabilities (2008).
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31. 2.2.THE SITUATION IN A NUTSHELL
• Massive Crackdown on freedoms;
• Severe judgments and massive indictments and sentencing, with a subsequently
increased skepticism vis-à-vis the Judiciary;
• Enactment of Laws that limit the People’s, civil society organizations’ and national
human rights institutions’ initiatives and participation in social and political life;
• Adoption of an Act that allows prolonged pre-trial detentions that can last for years
• Enactment of Laws with broad and ambiguous definition of the terms constituting a
criminal offence such as “being part of a prohibited organization”, “spreading false
news about the State”, “offending the values of the Egyptian family”, ”use of social
media to spread false new and threaten the State’s stability.
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32. 2.3. CIVIC PARTICIPATION AND JUDICIAL HARASSMENT –
2.3.1.THE HOPE CELL CASE
• The Charges: The Hope Cell case, No. 930 of 2019 State Security, Indictment for committing
crimes of association with a group established in contravention of the provisions of the law aimed
at calling for the suspension of the provisions of the constitution and laws, preventing state
institutions and public authorities from carrying out their role, and deliberately publishing
false news, information and data on the political and economic situation in the country with the
intent to disturb public peace and undermine confidence in state institutions.
• Underlying circumstances: meeting to form an Alliance among the opposition to field
candidates in the Egyptian Lower House’s election. The coalition included former MPs, journalists,
businessmen and labour leaders.
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33. THE HOPE CASE – CONTINUED – THE MEASURES
TAKEN BY THE STATE MACHINERY
• Systematic renewal of pre-trial detention every 45 days.
• Asset freezing and Property put under custody for funding terrorism based on Article 3 of the
Fighting Terrorism Act No. 94 of 2015.
• He and his family discovered that he was put on the list of terrorists during his imprisonment
upon the he Public prosecution’s request without being notified of the charges nor the
Criminal Court’s judgment of 16 April 2020 approving the request for his enlistment as well as
11 others for 5 years. Lodged an appeal before the Court of cassation. Court mentioned that
its decision was in compliance with Egypt’s commitment to the UN to fight terrorism.
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34. EUROPEAN PARLIAMENTARIANS’ JOINT LETTER TO
PRESIDENT EL SISI, 21 OCTOBER 2020
222 EU Deputies: “We write this letter to express our grave concern about the continued detention of
prisoners of conscience in Egypt. Particularly at a time of aggravated health risks due to the COVID-19
pandemic, we urge you to prioritize the human rights of detainees and immediately release those
unjustly detained. Despite these risks, we note the continued detention of a number of human rights
defenders, lawyers, political activists, and other prisoners of conscience in Egypt. Among these we note
the continued pre-trial detention of political activist Ramy Shaath, who has been held for more than a
year without charge.
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35. EUROPEAN PARLIAMENTARIANS’ JOINT LETTERTO
PRESIDENT EL SISI, 21 OCTOBER 2020
• We note the continued detention of activist Alaa Abdel Fattah, whose sister Sanaa Seif was detained
while she and her family attempted to make a complaint to the Public Prosecution about an assault
they suffered in front of Tora prison. We also note the continued detention of human rights lawyers
Mohamed el Baqer, Zyad el Elaimy, Mahienour el Massry, Haitham Mohamedeen and Ibrahim
Metwally, researchers Patrick Zaki and Ibrahim Ezz el-din, and journalists Esraa Abdelfattah, Solafa
Magdy, Hossam al-Sayyad and Mahmoud Hussein. We note that these are but a few of the many
prisoners of conscience held in Egyptian prison at risk to their lives. We recall the preventable deaths
this year of musician Shady Habash and US citizen Mustafa Kassem, both as a result of medical
negligence while in detention.
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36. EUROPEAN PARLIAMENTARIANS’ JOINT LETTERTO
PRESIDENT EL SISI, 21 OCTOBER 2020, CONTINUED
With these interests in mind, we ask you to release Ramy Shaath, Alaa Abdel Fattah, Sanaa Seif, Mohamed el Baqer,
Ziad el Elaimy, Mahienour el Massry, Haitham Mohamedeen, Patrick Zaki, Ibrahim Ezz el-din, Ibrahim Metwally,
Esraa Abdelfattah, Solafa Magdy, Hossam al Sayyad, and all unjustly detained prisoners of conscience. We further
ask you to limit the use of pretrial detention to a measure of last resort and to cease repeated detention of
journalists, political activists, and human rights defenders, as per the 24 August joint statement from 12 UN Special
Procedures to Egypt, and recommendations from the UNODC, WHO, OHCHR, UNAIDS, and others regarding best
practices for reducing overcrowding in prisons during a pandemic. We also urge you to end reprisals against
human rights defenders advocating for the release of political prisoners. This includes Bahey eldin
Hassan, one of Egypt’s most prominent human rights defenders, who recently received a 15-year-
jail sentence in absentia for his peaceful criticism of the Egyptian government.
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37. 2.3.2. CIVIC PARTICIPATION AND JUDICIAL
INTIMIDATION – BAHEY-EL-DIN HASSAN
• The sentencing in abstentia of Bahey-el-Din Hassan, director and co-founder of the Cairo
Institute for Human Rights Studies (CIHRS), over the abusive charges of “publishing false news”
and “insulting the judiciary”.
• Human rights defender since the early eighties.
• April 2016: Asset freeze against him and his family. Order for which he has never been notified in
relation to the notorious Foreign Funding Case targeting Egyptian human rights NGOs.
• September 2019: Sentenced for 3 years in jail for “publishing false news” and “insulting the
judiciary”.
• August 2020: sentenced in abstentia for 15 years for the same charges.
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38. 2.4. WOMEN’S AND GIRLS’ CONDITION IN EGYPT
• The Tik-Tok case and indictment of (unprivileged) women for “indecency, incitement to
debauchery and violation of the Egyptian family values”
• The Fairmont “gang rape” case and the late prosecution of “economically and politically
privileged” suspects, and the parallel detention of witnesses in this case and their
prosecution and pre-trial detention for “incitement to debauchery, homosexuality, use of
drugs, and spreading rumors about Egypt on social media”. NB/ the Witnesses and the
Victim were encouraged to contact the authorities by the National Women Council and
its promise (and the later enactment of a new Law) to keep secret the identity of victims
and witnesses in sexual assaults cases.
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39. 2.4.1. GENDER BASEDVIOLENCE –THETIK TOK
CASE
• The underlying facts: Publishing videos on TikTok and Instagram where they lip-synced to
famous songs and danced in fashionable clothes. The prosecutor found her videos
indecent.
• The charges: The indictment and sentencing of (unprivileged) women for “indecency,
incitement to debauchery and violation of the Egyptian family values.”
• The Sentence: 2 years in jail , in addition to a fine of EUR 17,000.
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40. 2.4.2. GENDER BASED VIOLENCE –THE FAIRMONT
GANG RAPE
• The Fairmont “gang rape” case and the late prosecution of “economically and politically
privileged” suspects, and the parallel detention of witnesses in this case and their prosecution
and pre-trial detention for “incitement to debauchery, homosexuality, use of drugs, and
spreading rumors about Egypt on social media”.
• The Witnesses and the Victim were encouraged to contact the authorities by the National
Women Council and its promise (and the later enactment of a new Law) to keep secret the
identity of victims and witnesses in sexual assaults cases..
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41. GENDER BASEDVIOLENCE –THE FAIRMONT GANG RAPE
(CONTINUED )
• The crime was committed in 2014.
• The crime came into light through a social media informal group called Police Assault.
• Intimidation and threats of deaths against the Administrator of the webpage.
• Long delay of prosecution to issue an arrest warrant.
• Virginity and annal tests onWitnesses and victim.
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42. 2.4.3. GENDER BASED VIOLENCE AND
AUTHORITIES’ INTIMIDATION OFVICTIMS
• Common denominator in these cases:
• Discrimination based on Gender.
• Systematic attempts by police and investigation authorities to discourage the victims from
lodging complaints ranging between Creation of guilt-feeling towards the offender that he
will end-up in jail, Intimidation.
• Systematic virginity tests.
• General comments on Social Media: from nothing will happen, or we should carry guns, up
to …she was wrong, why did she not stay at home.
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43. 3. CONCLUSION
• The interrelation between legality, the guarantee of Human Rights and the right to access to
court and a fair trial such that they form integral part of the Rule of Law.
• The examples provided in the case study attempted to show, through an a contrario approach,
the existential role of the Rule of Law to achieve Social Cohesion.
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44. THANKYOU!
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