The Middle East Channel

How Mubarak’s trial brings justice to Egypt

The trial of deposed President Hosni Mubarak alongside his two sons, his ministers, and their business associates, resumed Monday after launching on August 2. Many Egyptians expressed satisfaction at seeing the dictator on trial by the country’s own judicial system, and hope that his conviction would stand as an emblem for a new Egypt. But ...

AFP/Getty Images
AFP/Getty Images

The trial of deposed President Hosni Mubarak alongside his two sons, his ministers, and their business associates, resumed Monday after launching on August 2. Many Egyptians expressed satisfaction at seeing the dictator on trial by the country’s own judicial system, and hope that his conviction would stand as an emblem for a new Egypt. But others had reservations about his treatment. Those mixed feelings reveal how even the prosecution of Egypt’s head of state can only represent a first step in a longer-term and more comprehensive process toward transitional justice. The drive for retribution and punishment must not eclipse the need for truth telling, accounting, and transparency.

Egypt is not the first country to struggle with the question of how to bring leaders of a deposed regime to justice. Transitional justice is generally associated with holding accountable perpetrators of massive violations of human rights. But in recent years, activists and scholars have shifted attention to the ways in which transitional justice can facilitate the transition from autocratic to democratic government. For Mubarak’s trial to play this role, Egyptians need to rethink what they want from transitional justice. While punishing the old regime for its crimes is necessary and important, the prosecution of deposed officials will ultimately prove an empty victory if the process does not help consolidate a new and meaningful democratic order that ends impunity, reconstructs state-citizen relations, and institutionalizes accountability and rule of law.

The trials of Mubarak, his ex-Interior Minister Habib al-Adly, and six more senior ministry officials began with great fanfare on August 2. They are being charged with a variety of offenses, including ordering the police to shoot at unarmed demonstrators on January 28 and 29. Mubarak, his two sons, and his tycoon business associate Hussein Salem (who is being tried in absentia) face charges of striking an illegal business deal involving the sale of natural gas to Israel and the receipt of villas in exchange for the sale of state land. The next session, scheduled for September 5, will feature the testimony of four police officers for the prosecution.

The trial is being held by the regular judiciary in accordance with normal laws rather than in military courts or according to exceptional proceedings and thus is, in effect, a test of Egypt’s legal system. Advocates of transitional justice argue that such criminal proceedings can play an important role in promoting the rule of law and contribute toward democratic transitions. The primary goal of such a trial is to publicly herald the end of past abuses and distinguish a new, post-dictatorial order. The aim from the perspective of transitional justice is not only to punish the individuals who committed the crimes, but to demonstrate the end of impunity, to establish the truth about the past, to restore dignity to both individual victims and society as a whole, to deter future abuses, and to strengthen the rule of law. This means holding governments accountable for conducting themselves according to rules that are publicly promulgated, equally administered, and consistent with international human rights standards.

The broader goals of transitional justice can prove elusive if some element of a formal legal process, such as competent or independent judges and investigators, is lacking. Show trials are not enough. If investigators fail to amass the evidence necessary to convict those on trial, the judges will be left with a choice between acquitting a dictator (denying the nation justice) and issuing convictions despite lack of evidence (undermining due process).Only if the public views the trial as fair and just; only if the charges are investigated and the evidence documented; only if the process is public and comprehensive; can the trial contribute toward greater transparency, accountability, and rule of law. Only then will the new order and future generations truly be able to look back on this time as a testament that no one is above the law and affirm that justice was achieved.

The Supreme Council of the Armed Forces (SCAF) that replaced Mubarak on February 11 may have a greater interest than the Egyptian public in a speedy conclusion to the trial. Mubarak’s defense lawyer, Farid al-Dib, has already indicated that he plans to subpoena field marshal Mohamed Hussein Tantawi, who was defense minister under Mubarak’s rule and, as head of the SCAF, is currently the de-facto ruler of the country. Many observers are already speculating that the defense is seeking to call into question the proceedings by arguing that Tantawi was complicit in the decisions made during the crackdown on Tahrir Square protesters. The SCAF will seek to resist any calls or procedures aimed at examining their role in the corruption and repression of Mubarak’s regime in general and in the repression of the protesters in particular.

The desire for a quick conclusion to the trial also risks limiting the scope of charges in ways which can undermine the demands of real transitional justice. The human rights violations for which Mubarak is being tried cover just two days whereas the violence of Mubarak’s rule spans three decades (and the violence of the old regime predates Mubarak’s rule). In general, truth commissions are better than trials at raising the quality of a society’s understanding of past abuses, as well as providing recognition and restoration of individual healing for victims than trials, which are more geared toward ending impunity and deterring future abuses. For the moment, there are no plans to set up a truth commission in Egypt and the judge’s decision to no longer televise the proceedings will certainly undermine the trial’s cathartic effect for the Egyptian citizenry. The complicity of members of the SCAF with the old regime renders it highly unlikely that the full facts and responsibilities surrounding the violations of the deposed regime will be adequately uncovered in the criminal proceedings of the current trial. In fact, the achievement of a genuine process of truth telling will likely depend on the successful transition to civilian rule which, if the SCAF holds to its commitments, should take place after a presidential election in November.

Perhaps the most significant aspect of the charges lies in its combining economic and political crimes. Although the specific charges of corruption Mubarak and his sons face are undoubtedly only the tip of a larger iceberg of privateering, the corruption charges both expand the scope beyond those two days and raise the possibility of a more systemic investigation into the workings of the Mubarak era — and a more far-reaching indictment of the Egyptian state.

Transitional justice processes often tend to compartmentalize human rights violations and economic crimes and pay more attention to the former than the latter. In transitional justice literature, there is growing attention to the way in figures such as Pinochet, Marcos, and Suharto have used their ill-gotten assets to stifle investigation into human rights violations. One need also consider a number of such cases in which lack of attention to economic crimes left in place structural conditions that contributed to the continuation of political corruption, violence, and human rights violations, such as in post-Abacha Nigeria and the post-Mobuto Democratic Republic of Congo, or post-Suharto Indonesia. Impunity in the Egyptian political system can only be effectively confronted when the corruption that has allowed perpetrators to amass the money, power, and influence to buy, bribe, or otherwise delay or escape accountability for human rights violations, has been effectively understood and confronted. The lack of transparency and accountability in the Egyptian government has both political and economic facets and both facets — its repression and corruption — were mutually reinforcing.

But here too the requirements of transitional justice threaten to run up against the SCAF.  Egypt’s military has come to control a network of diverse companies and vast tracts of land, constituting a significant portion of the Egyptian economy. In short, Tantawi and other members of the SCAF continue to enjoy the fruits of economic crimes, yet remain unaccountable. Additionally, the SCAF has tried thousands of those who protested for democratic change before military tribunals, in proceedings many human rights groups have deemed unfair.

Transitional justice serves to delineate both past and future. A narration of Egypt’s authoritarian past must remain attuned to the mutual interdependence of economic and political repression as it attempts to achieve the goals of truth and justice and go beyond retribution for the past toward a more comprehensive future of economic and political reform and social reconciliation.

Michaelle Browers is Associate Professor of Political Science at Wake Forest University.