Former Egyptian president Hosni Mubarak appeared in court today for the first time, marking a milestone for Egypt as the authoritarian leader of three decades is tried for corruption and for ordering the killing of protesters who ultimately swept him from power.
Mr. Mubarak’s speedy trial has been a key demand of protesters, and Egyptians watching on a large screen outside the compound where the trial is being held cheered when they saw their former ruler inside the metal cage used for defendants in Egyptian courts.
But amid tremendous public pressure for convictions, rights activists and justice experts both here and abroad warn that his trial, and trials of other former regime officials, are being conducted in a way that may do more to deny Egypt real justice than to implement it.
“With a very rapid trial, it's not just the accused who could lose, it's the victims. It's about whether that trial is going to expose what really happened. It's better to have justice quick, but the most important thing is to have real justice,” says Nicholas Koumjian, a lawyer whose experience trying war criminals includes serving as principal trial attorney in the case of former Liberian president Charles Taylor. “It's very important that any trials that take place are legitimate, so that people in 10-20 years say, 'Justice was done.' ”
Top issues hindering justice in post-revolution Egypt
The police and prosecution – from trial lawyers to the Justice Ministry – are holdovers from the Mubarak regime, and critics have called their investigations of former regime officials half-hearted. In some cases, the institutions bringing the case may be implicit in crimes they are investigating.
The cases being brought to trial are not comprehensive and far-reaching indictments of the Mubarak era, but instead focus on certain instances of corruption and killing.
And outside the courtroom, little progress has been made on other aspects of transitional justice, such as uncovering the truth, reparations for victims, and institutional reform.
“The police who are collecting evidence were appointed by Mubarak. The prosecution was fully penetrated by state security, and was involved in settling accounts with Mubarak opponents. Some judges complain that the files sent to them are almost empty," says Bahey el Din Hassan, director of the Cairo Institute for Human Rights Studies (CIHRS). "And most of these people are on trial just because of what they did in five days. But what about 30 years? What about 30 years of oppression, torture, disappearances, killing by torture? What about that?”
Whether state institutions are willing or able to bring a damning case against their former boss and his cronies is a key question. Judge Zaghloul El Belshi, deputy head of Egypt’s Court of Cassation, said it will be a difficult task.
“These cases require special investigative committees formed by very high-caliber judges,” he said at an event on transitional justice organized by CIHRS. Such committees have not been formed. “All the investigations have been tampered with by members of the old regime.”
Uncovering full truth necessary for closure, progress
If investigators aren't able to amass the necessary evidence to convict Mubarak and others accused, it could leave judges facing a choice between acquitting officials, denying the nation justice, and angering the masses, or issuing convictions not backed by evidence.
Ensuring the cases are more than mere show trials not only protects the rights of the defendants, but also plays an important role in societies undergoing transition. Trials that uncover the full truth of the former regime’s actions are important for bringing closure and moving the nation forward, says Marieke Wierda, director of the criminal justice program at the New York-based International Center for Transitional Justice.
“If this process would proceed and there are questions about fairness, this could be very very damaging to Egypt's future,” she says. Judge Belshi says it's not about revenge, but about truth. "There is no room for reconciliation without accountability," he says.
While the spotlight is on Mubarak’s trial and criminal justice, Egypt has shown little movement in other areas of transitional justice that experts say are crucial for moving beyond the abuses of the Mubarak era.
Independent judicial committee?
The transitional government did appoint a commission to investigate the killings of protesters during the revolution, but no truth commission has been launched covering the decades of Mubarak’s rule. And while the generals ruling Egypt until new elections are called decided to fire some police officers accused of killing protesters, and relocated others, there has been no major reform effort for security services plagued by widespread abuse and corruption.
The interim military rulers have shown signs of wanting to revive the so-called "treason law," a law formerly used to try the political opponents of those who initiated the 1952 military coup in Egypt. But rights experts say the law, which would see military members participating in trials against former Mubarak-era officials, will not bring justice.
CIHRS has called for the establishment of an independent judicial committee to conduct the investigations and trials, not only for crimes committed during the revolution but during the past 30 years. The task is huge, would take years, and would need to draw on international experience and expertise, says Mr. Hassan. While such a commission would not be able to try every perpetrator of crimes under the past regime, it should target those most responsible, he says.
Few see signs that Egypt’s military rulers – who were themselves part of Mubarak’s regime – are interested in establishing and independent judicial commission or pursuing mechanisms of transitional justice. That stands in stark contrast with Tunisia, which has asked the International Center for Transitional Justice to advise the government during the transition from the rule of former President Zine al-Abidine Ben Ali, who was also ousted by a popular revolt. The organization has received no such official invitation from Egypt’s government.
“I hope that the military would support [an independent judicial committee]," says Mr. Hassan of CIHRS. "But I don’t see any serious indication that they would go in this direction.”
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