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Failed Transitional Justice in Egypt

Following speculation in July that Egypt’s former dictator Hosni Mubarak briefly slipped into a coma, officials of the interim military regime were quick to point out that deteriorating health would not enable him to escape trial. The regime has lived up to its word, and for the past eight weeks the trial has been under way with Mubarak on a hospital bed, in a steel cage, in the courtroom. While the trial of Mubarak has dominated the headlines, it is just one of many ways in which Egypt is engaging in transitional justice—broadly, the set of processes designed to address the violent or authoritarian past. Yet recent developments in Egypt illustrate the significant problems associated with engaging transitional justice in a still-authoritarian setting, and should serve as a caution against pursuing these policies when the conditions are not yet ripe.

Following the January 25 Revolution and the end of Mubarak’s 30-year rule earlier this year, the debate over trials took center stage in negotiations between the opposition and the regime. The opposition wants Mubarak and his associates tried for crimes committed during his 30-year rule, as well as for the deaths of over 800 protesters in January and February of this year.

The military, however, is resistant to unearthing crimes of the past, of which it is certainly complicit. This has led the military to take two distinct approaches to trials. First, it has avoided examining systemic human rights violations, and focused instead on charges of corruption and mishandling of funds during the former regime.

Mubarak’s sons Gamal and Alaa are on trial with him on corruption charges for the illegal massing of wealth during their father’s rule. Similarly, Hussein Salem, a close confidant of Mubarak, is being tried in absentia (he fled to Spain during the revolution) for authorizing below-market sales of natural gas to Israel, among other similar charges. Habib el-Adly, the former interior minister, has already been sentenced to 12 years in prison for corruption. These efforts have even extended to Mubarak’s wife, Suzanne, who in May agreed to turn over approximately $4 million worth of assets to the new regime in exchange for her release. Exposing such crimes is politically safe and, especially when the economy is struggling as it is in Egypt, plays well with the populace.

Second, where the new regime has engaged the issue of human rights violations, it has focused solely on the crimes committed against the protestors earlier this year—just two days of Mubarak’s 30-year reign. The military has also announced any arrests at key political moments (most frequently on Thursdays prior to scheduled Friday protests) but then has delayed the start of the trials of many of those arrested indefinitely. In other cases, trials have ended in acquittals, with one such recent decision setting off a riot in the courthouse. Despite the creation of a special Judicial Investigation Commission within the office of the prosecutor, so far only one police officer has been convicted, in absentia, of killing protesters. Such delays and acquittals have particularly irked the opposition, which is quick to point out the ease and speed by which the interim military regime continues to try hundreds of civilians in military courts.

Overall, the population perceives these trials as arbitrary and incomplete, as hollow efforts by the current regime to placate the opposition. The trial of Mubarak and seven co-defendants (el-Adley and six former aides) for killing protesters is widely welcomed, but will do little to change this perception, particularly after the recent decision to close the trial to the public and media. While the military regime may hope that convictions, no doubt to be timed to coincide with the elections scheduled for later this year, will quell demands for additional trials and add legitimacy to its rule, the likely effect will be instead to spur calls for further accountability.

The regime has taken a similar approach in other areas of transitional justice. The initiation of some type of purging or vetting process is common in countries following long-tenured regimes. While Mubarak dominated during his three-decade reign, thousands of others in government and the security forces were complicit in the abuses of his regime. In particular, reforming a police force with nearly half a million members has become a key test for the interim military regime. Egyptian Prime Minister Essam Sharaf has called for the termination of all officers accused of killing protesters, and recently Interior Minister Mansour El-Issawi announced the dismissal of 669 high-ranking police officers, 37 of whom are accused of killing protesters.

But these efforts to date remain piecemeal, opaque to the public, and are perceived by some as simply a means for the military to remove its opponents from power. Most importantly, these efforts have not stemmed demands for a full-fledged purge of Mubarak’s allies from government and the security forces.

Likewise, the opposition has demanded answers to the questions surrounding the government crackdown on protesters earlier this year. While an independent truth commission with legitimate involvement from the community may be an appealing response to such a key political event that changed the trajectory of the country, the military will not allow the possibility of any potential complicity of its own to be exposed. It thus preempted any calls for a truth commission by establishing its own special commission to investigate violations that occurred during the protests. As expected, the commission’s findings, released in April, held Mubarak’s National Democratic Party solely responsible for the attacks on protesters; and the military regime now has the ability to deflect any future calls for a truth commission as redundant.

The one type of transitional justice mechanism typically less free from government interference is the construction of monuments and memorials. Egypt’s revolutionaries constructed a makeshift memorial in Tahrir Square during the height of the protests in February, other temporary memorials have followed this summer, and at least one group is already accepting design proposals via a website and Facebook page for a permanent monument in the square. While interfering with communities and grassroots organizations who aim to honor victims is usually a poor political move for new regimes, this often does not hold where such monuments are slated to occupy key public spaces, such as Tahrir Square in Egypt.

And if its behavior towards other transitional justice processes the last few months is any predictor, expect the military regime to attempt to take control of any effort to construct a permanent memorial in Tahrir Square and use it to its political advantage. Overall, the process of engaging the legacy of Mubarak has just begun, and will likely remain a key topic debate for many years in Egypt. But the debate will rage longer and be more contentious because of the way the military regime has initiated the process. While the regime has been willing to engage forms of transitional justice that do not pose a threat to its image or rule, such as renaming streets and public buildings that bear the name of Mubarak and his family, it has attempted to control and manipulate other efforts. Egypt thus represents a clear warning to proponents of transitional justice.

The emergence of a new international norm to engage the past pressures states to pursue transitional justice mechanisms quickly, but without the right political environment, such efforts can fail or even be counterproductive to a country attempting to transition from authoritarianism and violence to democracy and peace.