Lois and Juris Greste, the parents of Australian journalist Peter Greste, who was jailed in Egypt this week. Photo: Harrison Saragossi
The seven-year jail sentence meted out to Peter Greste by an Egyptian court was rightly condemned by governments, media organisations, and human rights activists. The charges were highly irregular and inconsistent with media freedoms and free expression. The trial was unfair and did not meet minimum standards, including on the disclosure of evidence and the right of defence. The verdict was not reasoned. The sentence was heavy handed and aimed to chill criticism of the regime.
The harsh verdict has surprised many because the trial was under intense scrutiny from the global media, foreign governments, and fair trial monitors. The Australian government, including Prime Minister Tony Abbott, had vigorously communicated with the Egyptian authorities about its expectations of a fair trial, and received assurances about judicial independent. Under international law, Australia has a diplomatic right to insist that other countries respect human rights standards and protect its citizens. Foreign Minister Julie Bishop expressed shock at the result.
There were, however, warning signs and the outcome should not be such a surprise. Only days ago, another Egyptian court upheld 183 death sentences, after an earlier mass trial condemning 683 people to death, including many tried in absentia. The Egyptian government sees itself in a struggle for survival against the Muslim Brotherhood. Greste and his colleagues are collateral damage. Being foreign does not bring special treatment. Despite the recent promise of democracy, Egypt has had exceptionally harsh security laws for many decades and its judiciary is habituated to using them. Old habits die hard. Democracy, an independent judiciary, and the rule of law do not happen overnight under these conditions.
For Greste and his family, the question is what comes next. All avenues under Egyptian law will be considered, including a judicial appeal and, as a last resort, a request for a political pardon. There is always a chance that a higher court will correct this mistake, but equally Egypt’s national security could dig in its heels.
What more can Australia do? Unlike with some other Australians in trouble overseas, so far in Greste’s case the government has pulled out all stops to secure his fair treatment. Undoubtedly this is because there has been strong media interest in protecting one of its own, which has pressured the government to act. Greste also seems to have done nothing wrong, unlike some Australians whose behaviour is more questionable and less sympathetic. There are also vital principles of media freedom and a fair trial at stake, which Australia is right to defend.
The Australian government has handled the case well by showing good judgment in its representations to Egypt. It gave the Egyptian courts the benefit of the doubt by being open to the court demonstrating its fairness.
Now that the court has shown its true colours, it is appropriate for Australia to escalate its response. While a country has no right to politically interfere in a fair trial before an independent foreign court, Australia must now demand Greste’s immediate release. There can be no confidence in further court proceedings. It is not just a question of a process, the very charges are suspect. Vague offences of "spreading false news" and association with the Muslim Brotherhood are not consistent with international human rights standards.
While the Greens have suggested considering sanctions, the government is right not to pursue that path yet, for fear of closing off channels to influence Egypt. The politics must be handled sensitively. Abbott is right to suggest "megaphone diplomacy" would not work. Australia has summoned Egypt’s ambassador, and is attempting to contact the President. The case is delicate, because elements in Egypt will not wish to bow to foreign pressure, or give special treatment to Westerners.
If political pressure does not work, however, further escalation may be needed. Apart from sanctions, Australia could bring diplomatic pressure on Egypt through the various United Nations human rights bodies in Geneva, as well as by working with the countries of the Organisation of Islamic Co-operation.
Australian barrister Geoffrey Robertson has suggested Australia could sue Egypt in the International Court of Justice, hot on the heels of Australia’s victory in the whaling case against Japan. Both Egypt and Australia have accepted the binding jurisdiction of the court. Both are also parties to the International Covenant on Civil and Political Rights, which protects the right to a fair trial.
Such a case would be novel. In the world court’s near 70-year history, countries have very rarely sued each other on human rights grounds alone. Countries often fear that doing so would invite reciprocal claims. Australia has plenty of human rights skeletons in the closet, not least of which is the indefinite detention of 54 refugees on undisclosed national security grounds, most for five years already. The UN Human Rights Committee found last year that this is illegal detention without due process, inhumane treatment, and a failure of judicial protection.
Australia is right to protest Greste’s treatment, but we can hardly moralise about an uncivilised Egypt. Egypt may well answer that its legal processes are not so different from Australia's.
None of this is a reason not to sue Egypt. Countries should more actively enforce human rights in the international court. Human rights should matter to us as much as whales or territory. If that encourages other countries to shine a legal light on our human rights record, that too is a good thing.
Ben Saul is professor of international law at The University of Sydney and a human rights barrister.