Judgment on Trial in Cairo

Ruti Teitel is Ernst Stiefel Professor of Comparative Law at New York Law School and Visiting Professor, London School of Economics.  She is the author of the forthcoming book, Humanity’s Law (Oxford University Press Sept. 2011).

For many Egyptians, Hosni Mubarak’s trial is no mere consequence of Egypt’s revolution but the fulfillment of its promise.  In the Arab Spring, accountability for the abuses of the past has not so much been a by-product of political change but a driver of it.  This is an important development in the relation of transitional justice to politics, which deserves careful study and reflection.  From the very beginning of the protests of the Arab spring, the call for justice lay the basis for the expectations of what the revolution would achieve.

Viewed from a distance, the spectacle of Mubarak prostrate and caged may seem almost pitiful or gratuitous.  But we have to understand the different view of the demonstrators in Tahrir Square With an ongoing presence of the Military Council in the rule of the country, how can anxiety not persist about whether the revolution has been definitely won?  And, what about the assets and connections that the Mubarak family still possesses? Hence, the drumbeat of the ongoing demonstrations and their persistent demands; the regular protests and the equally regular lists of those who “have to go” — i.e., the call for lustration or purges of those police and cabinet members most associated with the wrongdoing of the prior regime.

The key message, which indicates why this trial is intrinsically related to the aspiration to a new political order is this:  that no one in Egypt ought to consider himself above the law. It is an important message after decades of abuses of both political and social /economic rights- a rule by corruption and torture.  But it is also a delicate message that to have any force -itself requires adhering to the rule of law.  Transitional justice is not simply a domestic issue, at least since the establishment of the norm of crimes against humanity at Nuremberg.  International norms were also at play in the post-Cold War trials in the former Czechoslovakia and Hungary, where the offenses including brutal attacks on demonstrators during the 1989 uprisings—and long before in 1956. It is even more true today: for all the demands of the street protestors for vindication, the danger is that this not turn into the hasty trial of Saddam Hussein characterized more by his execution-or the trial in absentia of Ben Ali in nearby Tunisia.

These questions:  of what form the trials should take, of what law ought guide the trials, of what penalty–is not purely a matter for Egypt and its current judiciary but rather also a matter of  adhering to standards of due process now set out as a matter of international law.  For Egypt and other countries in the region are now seeking to join the International Criminal Court.  In so doing they have committed to the proposition that accountability in Egypt follow international standards.

Not just Mubarak stands on trial in Cairo today-but the future of the rule of law in Egypt.