Why did the Cairo Administrative Court dismiss a lawsuit calling for the 1978
Camp David peace accords between Egypt and Israel to be annulled? The case,
reported by The Jerusalem Post on Thursday last week, put Egyptian President
Mohamed Morsi in the uncomfortable position of having to affirmatively defend
the Camp David accords, as opposed to merely tolerating them.
members of the Revolutionary Youth Union, a movement which says it encompasses
all political parties, national movements and independent NGOs, filed the
lawsuit in August against Morsi, Prime Minister Hisham Qandil and Foreign
Minister Mohamed Amr.
The petitioners argued that Egypt’s limited
military presence in Sinai, as set out in the Camp David accords, has resulted
in the growing number of terrorist groups in the peninsula. These armed groups
directly threaten Egypt’s national sovereignty.
Since Morsi’s election as
president in June, the Camp David agreement has become the focal point of a
political struggle between critics who argue Egypt must amend the peace accords
to regain control of Sinai, and Morsi’s government that contends Egypt is fully
capable of securing its territory.
Several groups and political figures
have lobbied for Morsi to amend the agreement – signed by then-Israeli prime
minister Menachem Begin and his Egyptian counterpart, Anwar Sadat, on September
17, 1978 – on the grounds that it prevents security forces from controlling
Sinai by severely restricting the presence of Egyptian troops in the
First, it was noteworthy that Morsi’s government actively
defended against the petition.
Speculation has been rampant that Morsi
would try to find a way to annul the accords, and a spontaneous lawsuit filed in
the courts would seem to be an ideal opportunity for him to “succumb” to the
will of the people without having had to take any direct action against the
Simply “failing” to defend a lawsuit is a classic way for a new
leader to escape commitments or laws placed on him by past leaders, when times
and values have changed significantly on a major issue.
although in a different context – President Barack Obama’s order to the US
Justice Department to simply not defend against lawsuits challenging the Defense
of Marriage Act was a classic move that allowed him to push the gay rights
agenda forward in the US, without having to pass legislation or actively do
Obama felt weighed down by former president Bill Clinton’s
16-year-old legislation creating certain distinctions between heterosexual
marriage and homosexual partners.
Morsi and most notably his political
analyst, Mohamed Esmat Seif Dawla, have at times expressed significant
dissatisfaction with the accords, particularly as relating to limits on troop
presence in Sinai.
In September, however, presidential spokesman Yasser
Ali said that there was no need to amend the peace treaty with Israel because
Egypt was fully able to regain security in Sinai.
The decision to defend
the case could be very significant in showing Morsi’s future
The main argument made by the petitioners themselves was
extraordinary in that it was narrowly tailored and phrased mostly in terms of
Egyptian national interests, with little criticism of Israel. A secondary
argument was that Israel had violated the treaty by making incursions into
Most proponents of annulling the accords wish to do so in order to
break relations with Israel, and usher in a period of great hostility between
the two countries.
These parties tend to have strongly anti-Israel
tendencies at their core, coming from their Salafist or Muslim Brotherhood
beliefs that the Jewish state does not belong in the predominantly Muslim Middle
Even if the petitioners were not explicit, it could be expected
that they would at least make complaints on behalf of the Palestinians. Morsi,
for example, has raised the possibility that, in his view, Israel materially
violated the accords by not granting complete autonomy to the Palestinians –
which the accords affirmed as an aspiration.
Yet, the petitioners’ main
claim was that it is in Egypt’s interests to increase its military footprint in
Sinai – even in violation of the accords – in order to combat a newly developing
and combustible terror situation.
Even if the petitioners harbor stronger
anti-Israel tendencies than they hint at, their selfimposed moderation in their
legal arguments could signal a trend of moderation emerging in the discourse
about the accords.
Most significant of all, in rejecting the petition,
Judge Fareed Nazieh Tanagho said that the issue was nonjusticiable, meaning that
the court was not competent to hear the case, since it relates to an issue of
national sovereignty, which can only be decided by Egypt’s president, according
to Egyptian daily Al-Masry al-Youm.
The nonjusticiability principle
actually applies to a host of issues, but a subset of the principle is the
“political question doctrine,” which has its roots in the US in the famous case
of Marbury v. Madison (1803).
In that case, the US Supreme Court declined
to invalidate the acts of the Secretary of State on the grounds that the issue
should be resolved by the more political branches of government.
doctrine is applied by most national courts worldwide on issues of foreign
A court has many ways to strike a petition, some on technical
legal grounds without getting into the meat of the dispute, while others require
seriously weighing the merits of the sides’ different arguments.
fascinating about the court’s ruling is that, on technical grounds, it entirely
avoided the very serious issue brought up by the petitioners. One possibility is
that the courts may still primarily be controlled by appointees of former
Egyptian president Hosni Mubarak, who was highly committed to the accords as a
foundation of his rule.
But there is another possibility.
Marbury v. Madison, part of the court’s final ruling on the issues was
considered to be out of concern of angering the then-US president Thomas
The same could be true here.
If the courts believe that
even addressing the debate about limits of militarization in Sinai would anger
Morsi, and they want to avoid this, it seems to suggest that, at least for now,
Morsi will not be making any sudden declarations annulling the treaty.