On October 9, 2010 the Muslim Brotherhood, Egypt’s largest opposition party, announced that it would run in the parliamentary elections in November. As a result, within two weeks, more than 200 members of the Brotherhood were arrested. Egypt has been under a state of emergency for nearly 29 years, since Hosni Mubarak became president. Under Egypt’s state of emergency, security personnel are permitted to arrest anyone suspected of posing a threat to the state, even if the actual threat is one of political opposition. Egypt’s use of the state of emergency to justify certain police actions is likely a violation of international law.

Egypt’s ruling party has used international concern over terrorism as a basis on which to outlaw the Muslim Brotherhood for years. A state of emergency was first declared when Islamic groups targeted President Anwar Sadat in 1981, but the conditions that necessitated marital law have long disappeared. Counter-terrorism has taken on dimensions of such urgency and importance within the international arena, that Egypt’s strict censorship on media and repression of opposition groups has gone long unchallenged. However, the unprecedented levels of international attention to the upcoming parliamentary elections in addition to heightened civil unrest makes one thing certain – Egypt’s state of emergency is at a crucial juncture.

The government has reasoned that it can arbitrarily arrest and detain political opposition because of its emergency law, which is used to target terrorists and potential threats to the state. Emergency laws, such as Egypt’s State of Emergency statute, are not per se violative of international law. A state of emergency typically replaces rights and freedoms outlined in domestic legislation with more stringent laws. Article 4 of the International Covenant on Civil and Political Rights (ICCPR) permits a state to declare a temporary emergency when there is a public threat to the life of the nation. Even then, states can only take measures strictly required by the exigencies of the public emergency.

Egypt declared its state of emergency in response to alleged threats of terror which the administration identified as being a public threat. Terrorist threats can trigger emergency law. Security Council Resolution 1566 (2004) stipulates that an individual may only be considered a terrorist, if such an individual committed an act (1) against members of the general population with the intention of causing death or serious bodily injury, (2) with the purpose of provoking a state of terror, intimidating a population, or to compel the State to abstain from doing any act, and (3) that can be defined as a serious crime under domestic law. The Human Rights Council subsequently adopted the same guidelines.

The circumstances in Egypt challenge the boundaries of a legal state of emergency. The actions of Egyptian authorities likely violate the ICCPR and Resolution 1566 by directly targeting representatives of the Muslim Brotherhood for voicing their political agenda. Article 3 of the State of Emergency law permits authorities to arrest those suspected of disrupting public order without a warrant. It makes no mention of the criteria established in Resolution 1566. For example, of the 200 members of the Muslim Brotherhood recently arrested, not one is alleged to have committed an act that could be considered an act of terrorism under the Resolution 1566. While the Brotherhood does have a controversial history, it officially renounced violence in 1970s. With the exception of some isolated incidences, the Brotherhood largely functions as a social welfare group in Egypt with a political undertone.  However, some disgruntled pro-violence groups formed in response as a result of the Brotherhood’s decision to use peaceful means.

The government has reasoned that it can arbitrarily arrest and detain political opposition because of the emergency law. The provisions of the emergency law are vague and broadly applied by the Egyptian government. Most concerning is the length of the state of emergency. As Martin Scheinin, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, aptly asserted, “[a] state of emergency almost continuously in force for more than 50 years in Egypt is not a state of exceptionality; it has become the norm . . .”

Egypt’s use of counter-terrorism efforts as a means to justify authoritarian control over the state and its elections is widely recognized as a façade. Some consider the upcoming Egyptian elections as a litmus test, assessing the extent to which President Mubarak and his National Democratic Party will continue to exercise tight control over Egypt’s politics, and more importantly, over the 2012 presidential elections. More than an Islamic community group, the Muslim Brotherhood represents a widely supported political and socio-economic alternative to the current administration. Under the declared state of emergency, groups like the Muslim Brotherhood stand little chance of posing a meaningful opposition to the incumbent National Democratic Party. Conditions may change, however, as international and domestic pressure intensifies, compelling Mubarak to address challenges to his police state.