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.

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