Analysis: How the Egyptian legal system saved Camp David

Since Morsi's election, the Camp David agreement has become the focus of a political struggle between critics.

Mohamed Morsi (photo credit: Amr Abdallah Dalsh / Reuters)
Mohamed Morsi
(photo credit: Amr Abdallah Dalsh / Reuters)
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.
Three 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 peninsula.
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 accords.
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.
Similarly, 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 anything.
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 intentions.
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 Sinai.
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 East.
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.
The doctrine is applied by most national courts worldwide on issues of foreign affairs.
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.
What is 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.
In 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 Jefferson.
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.