Round 2 of Mubarak’s Trial and Reform in Egypt?

August 13, 2011

Ex-President Mubarak appeared in Court, caged and bed-ridden, on 3rd August 2011 charged with corruption and the murder of over 840 protesters. His trial was adjourned and will re-open on Monday 15th August 2011. If found guilty, Mubarak may face the death penalty.

Murder Charges Against Mubarak

The murder charges against the former President are primarily based on accusations that he ordered the Police, as their Supreme Commander, to use lethal force. The prosecution has given itself a high burden of proof, but they appear to be confident of meeting it. In particular, the Former Interior Minister stated in interrogation that Mubarak gave orders to use live ammunition against protestors American Library of Congress. The Court may also rely upon (an analogy with) the International Law of Command Responsibility, in particular the liability of a Head of State for Policy Command. This now “well established” doctrine attributes responsibility for both positive acts and for omissions, including failure to prevent or punish crimes that the individual knows or ought to know are likely to be, or to have been, committed (see the Čelebići judgment, judgment of 16th November 1998 at para. 333).

However, many of the murders that are ultimately attributed to Mubarak were reportedly committed by his armed supporters who were not part of organised military units, let alone members of the Armed Forces. These militiamen are likely to have simply taken matters into their own hands, rather than carrying out express orders. Applying the standards of Command Responsibility, it would be difficult to say that these groups were under the legal or effective control of the former President. However, it may be possible to prove that Mubarak incited the killings. Indeed, the Arab Centre for the Independence of the Judiciary and the Legal Profession has allied itself with a number of other Arab Human Rights Groups to call for the prosecution of the Minister of Mass Media for the use of the Egyptian media to incite violence against protesters.

The trial of a Head of State is a rare event for any domestic legal system, and trials for mass murder are even rarer. The Egyptian court may well find the growing wealth of jurisprudence from international criminal tribunals a significant asset.

Justice for the Victims?

The U.S. Government may be confident that Mubarak’s trial will be fair but family members of those killed are not so sure. The Head of the Freedom Committee of the Lawyers’ Syndicate, Mr. Al-Damaty has complained that the trial will not be fair for Mubarak’s victims because many of their lawyers have been refused courtroom permits. Mr. Al-Damaty is reported to have threatened to refer the case against Mubarak to the International Criminal Court in the following statement:

“This is a case of mass killing and is eligible to be tried by the International Criminal Court. If the court insists on being fair only to the defense lawyers and not plaintiffs’ representatives we might consider referring the case to it”.

This case highlights the potential difficulties caused by automatic deference to national criminal justice systems. The Statute of the I.C.C. makes special provision for victims to make submissions to the Court and to be legally represented (see here). Indeed, there is a Victims Participation and Reparations Section of the I.C.C. to streamline meaningful participation in proceedings.

In contrast, there is a real risk that the Egyptian political and judicial elite will do all they can to protect the former President, at the expense of victims of the revolution who need to see a rigorous trial. It was feared that members of the ruling Supreme Council of the Armed Forces (‘SCAF’) who had been close to Mubarak would not allow him to be exposed to the humiliation of a public trial. They have done so, but there remain dark rumours about the use of Mubarak’s illness to spare him further humiliation. On 3rd August 2011, thousands of army personnel blocked access to the courtroom. One of the major benefits of trying Mubarak in an Egyptian court should be that it brings justice to the people of Egypt and to his victims, who should be able to witness and participate in that justice.

Yet, so long as a domestic court is investigating or prosecuting the case, and after a domestic trial, it would be inadmissible before the I.C.C. (article 17(1) of the Rome Statute). It could hardly be said, in order to avoid a finding of inadmissibility, that the Egyptian Court is unwilling or unable to try the case, even if it has arguably promoted the rights of the Defendant over the rights of the victims. In any event, the last thing anybody interested in the coherence of municipal and international legal orders could want would be a spat between a domestic court and the I.C.C., or that the I.C.C. should be asked to assess the propriety of domestic proceedings.

However, the I.C.C. has the benefit of a wealth of experience drawn from domestic legal orders and specialist expertise in trials of some of the worst human atrocities. As that expertise grows there may be some cases in which States may or should abstain from trying perpetrators in favour of a trial on the international stage. On the other hand, it is to be hoped that the Lawyers’ Syndicate of Egypt have rightly judged that the influence of the I.C.C. will be a model for improvement, not a last resort for underperforming legal systems.

 A Second Blossom for the Arab Spring?

For some Egyptians, Mubarak’s trial affirms the start of a real transition with justice at the fore. It certainly marks the capitulation of the SCAF to a demand that has brought protesters back onto the streets of Egypt. Thursday 11th August 2011 marked another progressive step as the SCAF announced that it is ending the State of Emergency that has allowed the country to be ruled by decree since 1981.

However, the SCAF seem intent on ensuring that the revolution does not continue. Tahrir square is regularly cleared of protesters, for example on 1st August 2011 over 80 people were reportedly detained. It is unclear whether meaningful reform will continue in Egypt, and if so to what extent and at what tempo.

Into Autumn and the Unknown

On the one hand, real changes have already been achieved, as noted by the Chatham House Egypt in Transition Programme (see ‘Securing a Democratic Process’ Workshop Report June 2011). For example, over 24 new political parties have been established to represent Egyptians since February 2011. A bill of rights has been drafted and the new constitution should secure judicial oversight of representative elections.

On the other hand, many of Mubarak’s old allies remain in power and the SCAF has stated that foreign observers will not be allowed to monitor the Egyptian elections. In any event, unless reform filters through Egyptian society, free elections may not establish democracy in Egypt. There are fears that many will vote according to family or local loyalties.

At the same time, there are genuine concerns about the results of even the most democratic elections. There will be tough choices over the influence of Sharia law, human rights, particularly women’s rights, and secularism facing the next government. However, Egyptians may feel they must choose between the lesser of two evils, which have recently been flexing their muscles in Cairo. The first is a regime ultimately controlled by the Egyptian military, which would lack democratic legitimacy but would be likely to bring stability and order. Perhaps more importantly it would suppress tensions between Egypt’s religious groups, which could lead to a new violent struggle for power on the streets of Cairo. The second is a strict Islamist regime that might repress other religions and sects and restrict civil liberties. Salafi hardliners have reportedly attacked Sufis, including attacks on 16 historic mosques in Alexandria, and Coptic Christians (see here). Sufis uphold a progressive and moderate version of Islam, and yet have been banned from gathering to perform religious rituals in a recent sign of religious intolerance (see here). As a result, the progress of hardliners is being anxiously watched.

Egyptians do not seem to be ready to settle down under another authoritarian regime; they continue to voice their opinions about the past (including Mubarak) and the future (see here for an excellent exposition of the continuing pressure for reform). Hopefully this vociferousness will be peacefully and meaningfully translated at the ballot box in November, following a full and fair trial for Mubarak.

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