Morsi and Transitional Justice: Peace vs. Justice & Implications for a Post-Brotherhood Egypt – by Dallin Van Leuven

While the Arab Spring brought unprecedented hope for peace and democracy in North Africa and the Middle East, countries that underwent regime change face the dilemma of transitional justice. For example, how should Egypt deal with the calls for justice relating to the 846 people killed during its 2011 uprising or to the abuses perpetrated by the previous regime? This article addresses the tension between calls for justice and truth-telling and those arguments that oppose transitional justice mechanisms in favor of stability.

Dallin Van Leuven is a masters student at the Fletcher School focusing on transitional justice, public international law, and human security.  He spent the past three years working as an educator in Cairo, Egypt and documenting the Arab Spring in print and photographs.  He received a Bachelor of Science in Justice Studies from Westminster College and interned with the US Embassy to the Kingdom of Belgium.  This summer he will be working with the United Nations Office on Drugs and Crime in West and Central Africa.

The Arab Spring brought hope for peace and democracy in North Africa and the Middle East that had not been felt before. As people across the world watched the coverage of the protests, some felt awe-inspired by the clarion call for ‘bread, freedom, and dignity’ while others felt pangs of jealousy, envious that such a popular movement was not to be found in their own country. Nowhere was this call for reform more prominent than in Egypt. As the largest Arab country, analysts and commentators erroneously felt that where Egypt would go, the rest of the Arab world would follow. But these protests were never about the removal of only one man, such as Hosni Mubarak or Mohamed Morsi. Rather, the unifying chant of the Arab Spring was, “The people want the downfall of the regime!”

President Barack Obama spoke to this after Egyptian President Hosni Mubarak stepped down on February 11, 2011. In his remarks, Obama said that Mubarak’s ousting was “not the end of Egypt’s transition. It’s a beginning.”[1] In addition, he captured the world’s reverence for the efforts of the Egyptian people:

This is the power of human dignity, and it can never be denied.  Egyptians have inspired us, and they’ve done so by putting the lie to the idea that justice is best gained through violence.  For in Egypt, it was the moral force of nonviolence—not terrorism, not mindless killing—but nonviolence, moral force that bent the arc of history toward justice once more.[2]

However, for Egypt to continue to bend this “arc of history toward justice,” it must do so with a proper, holistic effort for transitional justice, which might include such things as truth-telling, prosecutions, institutional reforms, and reparations. Eight hundred and forty six people were killed in the 18-day uprising that brought down Mubarak, and thousands more were injured.[3] Furthermore, Egyptians have lived under emergency law since 1967 (with only an 18-month interlude in 1981), which allowed for repression, torture, and the criminal prosecution of the government’s political opposition.[4] Can true change come to Egypt unless the government addresses these issues and reforms the system that allowed them? Truthfully, the final Arabic word of the aforementioned chant, nizam (نظام), means system; Egyptians were mindful of the need to overthrow the system from the beginning.[5]

Speaking to this ideal, Archbishop Desmond Tutu told a crowd at East London’s city hall in 1996 that it was critical for a post-Apartheid South Africa to address its past in order to move forward to the future. “We are charged to unearth the truth about our dark past and to lay the ghosts of that past to rest so that they will not return to haunt us; and that we will thereby contribute to the healing of the traumatized and the wounded—for all of us in South Africa are wounded people.”[6]

However, endeavors to transform the system and address calls for justice are almost always met with opposition, as is the case in Egypt. Many argue that the claim that transitional justice prevents future conflict is built upon unproved assumptions, and that the pursuit of justice in fact inhibits peace. In this article, I will illuminate the tension between such calls for justice and truth-telling and those arguments that oppose transitional justice mechanisms in favor of stability.

These arguments were very apparent to Egypt’s first freely-elected president, Mohamed Morsi. As the first civilian president, Morsi was also Egypt’s first real chance at change. Undoubtedly, Morsi’s administration felt these tensions between peace and justice. This article will explore the transitional justice landscape that Morsi faced: who make up the various categories of perpetrators, and which actors support which transitional justice mechanisms and why.   Next, it will analyze Egypt’s transitional justice policies before and during Morsi’s presidency. Finally, the article will conclude with an analysis of the violence surrounding Morsi’s ouster and the subsequent crackdown on his supporters and the Muslim Brotherhood, adding reflections on what this might mean for the upcoming presidential elections in a post-Brotherhood Egypt.

 

Peace vs. Justice: Polar Opposites?

President Obama’s speech called upon the Supreme Council of the Armed Forces (SCAF)—the transitional military leadership following Mubarak’s departure—to “ensure a transition that is credible in the eyes of the Egyptian people” and to protect their rights and “bring all of Egypt’s voices to the table.”[7] Human Rights Watch goes further, and argues that a genuine transition would require not only a change from an authoritarian to a democratic system, but also a reform of laws and policies that limit civil and political rights as well as personal liberties.[8]

Transitional justice connotes more than just political reforms. The International Center for Transitional Justice defines it as “a response to systematic or widespread violations of human rights. It seeks recognition for victims and promotion of possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse.”[9] This definition champions the idea that justice promotes peace. In this regard, Egyptian victims of human rights abuses and their families have been very vocal. In fact, one of the Facebook groups that organized the January 25 protests, “We Are All Khaled Saeed,” was named after a pre-revolution victim of police brutality. Indeed, Emile Durkheim argues that “shared indignation of the innocent many toward the guilty few” brings solidarity to victimization.[10] Because of the weight of these voices, addressing or not addressing these grievances would have strong implications. In Egypt, this solidarity brought about the revolution. This raises the question, does solidary need to be created through transitional justice, or has it already been achieved?

While solidarity of the “innocent many toward the guilty few” may have resulted in the overthrow of Hosni Mubarak, we must be careful not to see victimization as a monolithic descriptor. Who has been victimized? By whom? And in what way? Is their victimization even recognized by the society at large, or is it denied? All of these are important questions when discussing victimization, and posing them in the Egyptian context shows that victimization is susceptible to political argumentation. Let us focus on the final question: Has the Egyptian government recognized victims? Amnesty International’s Secretary General Salil Shetty would argue that it has not. He told reporters in Cairo that it would be “very difficult to move forward” if these victims of human rights violations and their families do not feel that “accountability and compensation” have been achieved.[11] Reparations, public apology, and memorialization would be steps towards recognition. Indeed, protests and clashes have occasionally broken out over this issue in the time since Mubarak’s ouster.

These calls for justice and remedy are a cause for concern to those who stand to lose by it—namely, the police and the military—precisely because of this requirement to accept responsibility. As Priscilla Hayner warns, “in the midst of a delicate transition, truth-telling can also increase tensions. A government must enter this arena with care.”[12] The pursuit of justice can disturb the peace. In Egypt’s case, the crimes of a security apparatus that has been operating for decades would pile high. Moreover, the military’s transitional rule after Mubarak was fraught with accusations of torture, arbitrary arrests, and the killing of peaceful protesters. As a significant political player and the most powerful faction in Egypt, calling the military to task for its crimes would have significant implications. Could any segment of Egyptian society deal with the political fallout from challenging the military’s actions during or after the revolution? Activists who have brought allegations against the security sector have been targeted. Maikel Nabil, a prominent Egyptian pacifist and critic of the military, was imprisoned for “insulting the military” and “publishing false information” when he implicated them in human rights abuses both during the revolution and thereafter.[13]

In addition, attributing responsibility to civilians who have perpetrated crimes before, during, or after Mubarak’s ouster is also subject to such concerns. Perhaps the most prominent example would be with the case of the February 1, 2012 Port Said massacre, where fans of the Al-Masry team of Port Said attacked fans of the Al-Ahly team of Cairo after a football match. The resulting brawl resulted in the deaths of 73 people, predominately from Al-Ahly’s Ultras fan club.[14] The resulting trials of Port Said fans and security officials (who were accused of not intervening and even locking Al-Ahly fans in the arena) were clearly tense. When twenty-one Port Said fans were convicted and sentenced to death, the public outcry was so fierce that at least forty-five people were killed in a three-day period of unrest, forcing President Mohamed Morsi to declare a state of emergency in the area and send the military in to restore order.[15]

Some would argue that it would be necessary to ignore such tensions and pursue justice, regardless of these consequences. Lord Mansfield, the Chief Justice of England in 1768, questioned this notion in his decision of Rex v. Wilkes:

The constitution does not allow reasons of state to influence our judgment. God forbid it should! We must not regard political consequences, however formidable they might be; if rebellion was the certain consequence, we are bound to say, Justitia fiat, ruat coelum—Let justice be done, though the heavens fall.[16]

But is such a call for justice reasonable? If the military resisted violently—like the residents of Port Said had—would the deaths of even more protesters result? And if so, would the pursuit of justice merit the cost of additional bloodshed? Not surprisingly, the military is in favor of a different approach. In a recording leaked to the Egyptian newspaper Al-Masry al-Youm, military leader General Abdel Fattah el-Sisi—now the leading candidate in Egypt’s upcoming presidential election—posited that the military should have immunity from political interference.[17] Indeed, the Muslim Brotherhood granted similar immunities to the military in its proposed constitution in an effort to accelerate an Islamist-dominated drafting process that left out many other segments of Egyptian civil society.[18] The newest constitution added to these immunities, and grants wide autonomy to the military, rejects parliamentary oversight of their budget, and even gives a police council the right to accept or reject all laws dealing with the police.[19]

Those hoping to bring the military to justice would also have to fight a battle of public opinion. During the eighteen days of protests, the military mobilized in the streets to protect citizens from looters and escapees of various prison facilities, as well as Mubarak loyalists. This led to the popular chant, “The army and the people are one hand.” Such sentiments translated into goodwill that lasted long after Mubarak stepped down.

An effort to expand the list of belligerents to include the police, the military, and the politicians, fact-finding efforts into human rights violations by them would face difficulty in adequately exposing or prosecuting violations. It is widely known that many police stations and their records were burned during the revolution. I have spoken to people who scaled the walls of state security offices to get at the records before they were all destroyed. Some of these documents were recovered and published online, but what was salvaged may no longer be verifiable because of a break in the evidence’s chain-of-custody. In addition, while Egypt boasts one of the most sophisticated legal systems in the Middle East, its underfunded judicial administrations are severely ineffective.[20] To pile on such an enormous caseload atop a system so overburdened with ordinary crime could overstretch these resources to their breaking point.[21] These difficulties in prosecution could spell disaster. Acquittals of those commonly perceived to be guilty due to lack of evidence or due process protections may result in a general contempt for the rule of law, as well as criticism of the courts.[22]

In the following section, I will briefly discuss the different categories of perpetrators in crimes before, during, and after the revolution, up until Morsi’s ouster. Next, I will evaluate the transitional justice options available to Morsi’s administration in responding to these perpetrators and their victims before finally evaluating his overall strategy.

The Perpetrators

            The Politicians. This would entail the top politicians and some members of Mubarak’s National Democratic Party (NDP). These include former President Hosni Mubarak and his sons Gamal and Alaa, as well as former Interior Minister Habib al-Adly. They were charged with the killing of protesters and corruption.[23] Other NDP members were accused of hiring “thugs” to attack protesters, including the notorious Day of the Camels charge on Tahrir Square.[24]

The Police. As Mubarak’s strong men, the police were accused of a multitude of human rights violations, including torture, arbitrary detentions, and the murder of suspects and protesters alike. In particular, during the beginning of the eighteen days of protests, snipers believed to belong to the counterterrorism unit of state security shot peaceful demonstrators, and police vehicles were recorded running over protesters.[25] Police officers and members of the Ministry of Interior’s Central Security Forces have continued to engage in violence against protesters on countless occasions following the initial eighteen days, resulting in the deaths of hundreds more.

The Armed Forces.While initially praised for taking to the streets under the auspices of protecting civilians once the police abandoned their posts, the military rule that followed Mubarak’s ouster was replete with violations, including soldiers attacking peaceful protesters, the use of excessive force, arbitrary detentions, torture, and restrictions on human rights.[26] A highly-publicized example was of the “Blue Bra Girl.” She was a female protester who wore a conservative niqab that only showed her eyes, yet was filmed being dragged and stomped on by soldiers who tore off her clothing to expose her blue bra.[27] Female protesters were also rounded up and forced to undergo “virginity tests” in front of male soldiers.[28] In addition, there were over 11,000 military trials of civilians, with a conviction rate of over 90%, in violation of Egypt’s obligations under international human rights law.[29] Such violations continued throughout Morsi’s presidency.

The Protesters and other civilians. While commonly thought to only be victims rather than perpetrators, protesters were also responsible for the destruction of public property, including the burning of police stations across the country. Also, it must be noted that security forces were among the dead, killed in clashes with protesters. The Port Said massacre and the resulting unrest is another example of civilian groups perpetrating violence. This category of perpetrators is also the most extensively prosecuted, as alluded to earlier with the military’s tribunals.

The Muslim Brotherhood and other Islamists. In the decades before the revolution, radical Islamist groups including the Muslim Brotherhood participated in violent resistance to the authoritarian rule of Egypt’s leaders. They mostly targeted tourist facilities and Coptic churches, but were also accused of the assassination of former President Anwar Sadat.[30] In recent history, most of these groups renounced violence and instead opted for a more “holistic approach” which included promoting Islamic values and pedagogy.[31] However, during Egypt’s transitional period, Islamist-dominated protests have also resulted in violence, even clashes with other protesters.

An Evaluation of Transitional Justice Options and Efforts

            Trials. Following Mubarak’s ouster and a passionate public debate, prosecutors finally decided to put the disgraced leader on trial in a civilian court. He was charged with a variety of crimes, including corruption, embezzlement, and the killing of protesters. Following a year-long trial, he and Habib al-Adly were found guilty—not of killing protesters but of failing to prevent their deaths. The judge ruled that there was insufficient evidence to “prove that the death and injury of the victims were caused by police weapons” and instead blamed “thugs” for the violence.[32] Mubarak and al-Adly were sentenced to life in prison, but Mubarak’s sons were cleared of corruption and six interior ministry officials and police chiefs were acquitted.[33]

Local civilian courts across Egypt also tried thirty-six other mid to low-level police officers with similar results. Out of those thirty-six cases, twenty-seven resulted in acquittals, and only two of those convictions resulted in actual jail time.[34] The two police officers who beat Khaled Saeed to death, whose broken body helped condense the public anger that fuelled the uprising, were found guilty of manslaughter and sentenced to seven years in prison, despite evidence that they had attempted to cover up his death.[35] Their appeal of the verdict resulted in a retrial that also found them guilty and sentenced them to ten years.[36]

Soldiers, rarely charged with crimes against protesters, have been equally immune from punishment. On October 9, 2011, twenty-eight mostly Coptic protesters were killed outside the state television headquarters when they were shot and ran over by soldiers in armored personnel carriers. However, only three soldiers were ever convicted on charges of manslaughter by a military court.[37] They were sentenced to two to three years in prison.[38]

According to Miriam Aukerman, prosecutions have three “curative powers.” They help establish the truth, promote the rule of law, and reinforce moral norms by prohibiting certain acts.[39] In doing so, it is hoped that prosecutions will eliminate the impunity of perpetrators and deter these actions in the future. However, “rule by law, not rule of law, has been the norm in Egypt.”[40] Therefore, many Egyptians view the court system with skepticism as to its impartiality, especially when considering that Mubarak’s administration had appointed many of the judges who heard the cases. Upon Mubarak’s conviction, the crowd outside the courtroom chanted, “False judgments. The people want to clean the judicial system!”[41] The Muslim Brotherhood immediately called for a retrial.

The Muslim Brotherhood’s own Mohamed Morsi assumed the presidency only weeks later. Morsi challenged the judiciary over these failures to prosecute. He ordered the parliament back into session in defiance of a ruling dissolving it by the Supreme Constitutional Court.[42] Though this effort eventually failed, Morsi successfully circumvented the ruling in Mubarak and al-Adly’s case, and ordered their retrial with new evidence and new defendants.[43] To do so, he would have had to strip these defendants of their double jeopardy protections.[44] However, the retrials were the result of a judicial order when Mubarak and al-Adly appealed their convictions.[45]

While the judge’s ruling that police were not responsible for the deaths of protesters in the initial Mubarak case raised some serious questions about his reasoning, the endeavor to retry certain perpetrators struggles with perceptions of legality. It certainly does not defuse sensitivities to the “rule by law,” rather than “rule of law.” Trials that are pursued against established legal principles risk undermining the “spirit of legality” that prosecutions are supposed to promote.[46] Instead, such actions risk promulgating the perception of “victor’s justice.” As Justice Pal ruled, “formalized vengeance can bring only an ephemeral satisfaction, with every probability of ultimate regret; but vindication of law through genuine legal process alone may contribute substantially to the re-establishment of order and decency.”[47] In November 2012, Morsi issued a law that set up a new transitional legal system to oversee the retrials. Surprisingly, Morsi specifically opted to expand the scope of the trials to include more defendants. It seemed that his focus was to retry the police officers’ cases. He also did not attempt to prosecute anyone in the military. These retrials have been horribly ineffective, with nearly one hundred officers acquitted of killing protesters.[48] Appeals for the defendants in the Port Said massacre are also ongoing.

The entire trial process has been plagued by allegations of politicization. Most verdicts—regardless of whether they are convictions or acquittals—have been dismissed as illegitimate by at least one segment of society. This is most significantly demonstrated with the public outcry after Mubarak’s trial and the Port Said case. Overall, prosecutions in Egypt have been ineffective at promoting transitional justice. As noted by Aukerman, while prosecutions may be an excellent tool to “express outrage at a few wicked individuals,” for exposing the “social, economic, and political conditions underlying a conflict, non-prosecution alternatives like truth commissions may do a better job.”[49] This leads us to Morsi’s next strategy.

            Truth Commissions and Fact-Finding.Truth commissions are usually most effective when the perpetrators have actively tried to hide their criminal activities.[50] While Morsi never put forward a proposal for a truth commission, one of his first actions as president was to establish a fact-finding committee. He charged it with gathering evidence about the injury and killing of protesters from when the revolution began on January 25, 2011 to the day he took office on June 30, 2012.   It was also tasked with evaluating the “measures taken by executive branches of government and the extent to which they cooperated with the judicial authorities and any shortcomings that may exist.”[51] The panel included a variety of professionals, including judges, doctors, and Egypt’s assistant public prosecutor. The committee also included a variety of security officials, such as General Emad Hussein of the military, the head of the intelligence apparatus’ national security committee, and the assistant minister of interior. Six relatives of slain or injured protesters were also appointed to act as observers.[52]

When the committee finished its 700-page report the following December, hopes were high that justice would finally be served. The Guardian reported that parts of the report leaked to it described the military’s tactics of torture and forced disappearances.[53] The committee posted on its website that it had uncovered nineteen separate incidents of excessive force or other violations of human rights by the military and the police. Morsi forwarded the report to the public prosecutor who assembled a team to investigate the findings in “absolute secrecy.”[54]

The results of the committee were never released to the public and the hoped-for prosecutions never occurred.[55] Additionally, the fact-finding committee’s website (www.ffc-eg.org) is no longer online. Not only was evidence being withheld from the public sphere. The Egyptian campaign “Where’s the Report?” challenged Morsi to make the findings public and also accused him of failing to implement several alleged recommendations in the report which would augment prosecutions.[56]

Why would Morsi refuse to release the report? A statement from his office claimed that he wanted to “ensure that neither the course of the investigation nor the outcome [was] politicized.”[57] A more plausible explanation is Morsi’s concern that such a challenge to the security sector would have incurred significant political costs. Some commentators argue that the Muslim Brotherhood, from early in the revolution, tacitly courted the military to curry political favor. Robert Fisk reported back in 2011 that General Mohamed al-Assar of the Supreme Council of the Armed Forces told the U.S. Institute of Peace that the Muslim Brotherhood was cooperative and getting on a “more moderate track.”[58] Furthermore, the Muslim Brotherhood actively campaigned in favor of the constitution drafted by the Islamist-dominated constituent assembly, which made large concessions to the military’s interests.[59] More explicitly, when Morsi heard of accusations that the committee’s report contained allegations against the armed forces, he denied them and warned against slandering the military.[60] The Associated Press also quoted the president praising police for being “at the heart” of the very revolution they tried to crush.[61] Security sector reform and exposing human rights violations, were not high on Morsi’s agenda, or were perhaps beyond the scope of his power.

Pardons and the Release of Detainees. Another option available to Egypt’s rulers after Mubarak’s resignation was to pardon prisoners or release detainees who had been arrested under emergency law or military rule. SCAF announced just days after Mubarak’s ouster that it would review cases of political and criminal detainees, and released thousands through pardons, medical releases, or acquittals in reviews from military tribunals.[62] These processes continued under Morsi’s presidency. In the early months of his administration, he established another official committee to study the use of military trials on civilians during SCAF’s rule. This committee was headed by Mohamed Amin al-Mahdy, a former head of the State Council and a former member of the International Criminal Tribunal for the Former Yugoslavia.[63] Upon the committee’s recommendations, Morsi pardoned 645 prisoners who had been sentenced and issued a comprehensive amnesty law for crimes committed with “the aim of supporting the revolution and fulfilling its aims” from January 25, 2011 to his presidency.[64] The public prosecutor, himself a member of the committee, executed the law by pardoning 490 people. Morsi also gave a presidential pardon to twenty-seven Islamists on July 26, 2012. However, allegations that the pardons were politically motivated caused Morsi to refrain from granting additional pardons to Islamists.[65]

An Analysis of Morsi’s Policies and Recent Initiatives

In review, it appears that as president, Mohamed Morsi sought to balance the tensions between justice and peace. He did so with a limited pursuit of certain actors, most notably by failing to directly confront the security sector. Therefore, he was unable to call for a truth commission, nor could he publish the fact-finding committee’s report. Perhaps he saw the findings as a potential ‘ace-in-the-hole’ in potential disputes with the police and the armed forces. Whatever his reasoning, Morsi’s failure to confront the security sector had enormous consequences for himself and his followers. As Hayner warns:

Bury your sins, and they will reemerge later. Stuff skeletons in the closet, and they will fall back out of the closet at the most inauspicious times. Try to quiet the ghosts of the past, and they will haunt you forever—at the risk of opening society to cycles of violence, anger, pain, and revenge.[66]

When Morsi’s administration came under immense criticism for its political failures, as well as accusations of the killing of protesters by his Islamist supporters, the police and the military refused Morsi’s request for assistance. Under massive, nation-wide protests, the military removed Egypt’s first freely elected president from office. The resulting clashes between his supporters and security forces resulted in the deaths of over a thousand people, outnumbering the casualties of the January 25th Revolution.[67] Ironically, regardless of the high death toll, the military and the police seem to have only rehabilitated their image in the eyes of the public. Once again the chant that “The army and the people are one hand” was employed. While justice for the victims of Egypt’s revolution seems just as far away as it did during Morsi’s tenure, on November 3, 2013, Mohamed Morsi and fourteen of his allies appeared as defendants in a new trial. They were charged with inciting the murders of at least three protesters. Other charges have also been levied against them. An estimated 16,000 more of Morsi’s supporters have been arrested, in an unprecedented roundup.[68] Having failed to continue to bend the “arc of history to justice,” that path oscillated once more toward violence.

Yet with new violence comes a new opportunity for transitional justice, as well as new challenges. Adly Mansour, the interim president appointed following Morsi’s ouster, created a new cabinet position and appointed Mohamed Amin al-Mahdy as the first minister of transitional justice—the same al-Mahdy who spearheaded Morsi’s committee that to evaluate military trials.[69] Al-Mahdy requested that a fact-finding committee be formed to investigate the post-June 30 violence, but observers worry that the committee will be biased, or that it will be plagued with the same issues of the former fact-finding committee. Already, the committee’s spokesman Amr Marwan has stated that the committee is not entitled to release its findings to the public.[70] A separate (yet government-appointed) fact-finding commission by Egypt’s National Council on Human Rights (NCHR) published a summary of its findings on the same events on March 5, 2014. That report identified 1,318 deaths (including 72 police) from August 14 when police cleared the main Muslim Brotherhood protest camp at Rabaa al-Adaweya to August 17, 2013.[71] It offered evidence of torture and murder of eleven people at the camps (allegedly by Islamists at the sit-in), criticized security forces for failing to secure a safe passage for protesters and for “[failing] to maintain restraint in some cases,” but placed most of the blame on armed protesters.[72] In response, President Mansour asked the minister of justice to investigate the NCHR’s findings, which were also highly criticized by the Anti-Coup Alliance and the Muslim Brotherhood.[73]

However, there have only been a handful of prosecutions for the deaths of Morsi’s supporters after June 30, 2013. Police captain Amr Farouq was recently sentenced to ten years in jail for his role in the deaths of thirty-seven prisoners who were gassed to death in a crowded police truck.[74] Three more were given suspended one-year sentences.

On the other hand, the prosecution of Islamist supporters of Morsi and those deemed sympathetic to the Muslim Brotherhood have been much more successful. Sixteen thousand people have been arrested since Morsi’s ouster, from hundreds of protests in Egypt’s squares and universities. In addition, activists that have been critical of the interim government are also being rounded up and put on trial. On April 28, 2014, an Egyptian court banned the activities of the prominent April 6 Movement, which was central to the January 25 Revolution.[75] At least sixty journalists have been detained, and dozens are being tried, including Western and Egyptian journalists working for Al Jazeera English on allegations of promoting a terrorist organization (as the Muslim Brotherhood has now been designated) and broadcasting false news.[76] And in an unprecedented case, 529 people were convicted and sentenced to death on March 25, 2014 for the death of a single police officer in Minya, in a bizarre show trial that did not grant even the most basic due process protections.[77] On April 28, 2014, the same judge commuted all but thirty-seven of these sentences to life, but sentenced another 683 to death in a similar sham trial that lasted a single day.[78] Finally, Minister of Transitional Justice Mohamed Amin al-Mahdy has demanded a review of all pardons issued by Morsi—most of which he recommended himself.[79]

Conclusion

With the upcoming presidential elections on May 26 and 27, Egypt’s next president will be in charge of overseeing Egypt’s transitional justice initiatives. The current frontrunner Abdel Fattah al-Sisi was Morsi’s defense minister, oversaw his ouster, and presided over the crackdown on Morsi’s supporters. His sole competitor is a leftist politician named Hamdeen Sabbahi, who was part of the National Salvation Front which opposed the Muslim Brotherhood. Whoever the winner will be, they will be subject to the same tensions of peace versus justice and similar political pressures as discussed in this article. In addition, the future president will have the added pressure of confronting these tensions as a low-level insurgency grows in the Sinai Peninsula, and with terrorist attacks targeting security officials, universities, and museums in Cairo.[80] Will the winner continue the policies of the interim government, or will they chart a new path forward? Only time will tell, but there are not many signs of optimism.

The case of Egypt calls attention to the need for transitional justice. It also illustrates the tensions between calls for peace and calls for justice and gives warning to the consequences of various mechanisms. It shows that while calls for justice and peace may at times have divergent interests, it does not mean that the two are mutually exclusive endeavors. However, failing to address past atrocities or hold their perpetrators accountable may “inevitably fuel future ones” in repetitive cycles of violence.[81] This lesson was especially acute for Mohamed Morsi.

Endnotes

[1] Barack Obama, “Remarks by the President on Egypt,” 11 February 2011, available from http://www.whitehouse.gov/photos-and-video/video/2011/02/11/president-obama-historic-day-egypt#transcript.

[2] Ibid.

[3] Office of the High Commissioner of Human Rights, Report of the OHCHR Mission to Egypt 2011, available from http://www.ohchr.org/Documents/Countries/EG/OHCHR_MissiontoEgypt27March_4April.pdf, 9.

[4] BBC News, “Egypt profile: Overview,” (accessed November 2, 2013); available from http://www.bbc.co.uk/news/world-africa-13313370.

[5] The full chant in Arabic is, “Al-shaab yoreed isqat al-nizam” (النظام إسقاط يريد الشعب)

[6] Nir Eisikovits, “Transitional Justice,” The Stanford Encyclopedia of Philosophy (Spring 2013 Edition), Edward N. Zalta (ed.), (accessed November 5, 2013); available from http://plato.stanford.edu/archives/spr2013/entries/justice-transitional/.

[7] Barak Obama, supra note 1.

[8] Human Rights Watch, The Road Ahead: A Human Rights Agenda for Egypt’s New Parliament, (New York: Human Rights Watch, 2012): 1.

[9] International Center for Transitional Justice, “What is Transitional Justice?” (2009): 1.

[10] Miriam Aukerman, “Extraordinary Evil, Ordinary Crimes: A Framework for Understanding Transitional Justice,” Harvard Human Rights Journal (2000): 22.

[11] “Egypt can’t move forward without justice, says Amnesty sec-gen,” Daily News Egypt, June 26, 2011, (accessed November 2, 2013); available fromhttp://www.dailynewsegypt.com/2011/06/26/egypt-cant-move-forward-without-justice-says-amnesty-sec-gen/.

[12] Priscilla Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions,2nd ed. (Routledge, 2011): 23.

[13] Kristen Chick, “Atheist and pro-Israel, Maikel Nabil tests free speech in Egypt,” The Christian Science Monitor, March 29, 2012, (accessed November 4, 2013); available from http://www.csmonitor.com/World/Middle-East/2012/0329/Atheist-and-pro-Israel-Maikel-Nabil-tests-free-speech-in-Egypt.

[14] David D. Kirkpatrick and Mayy El Sheikh, “Egyptian Soccer Riot Kills More Than 70, and Many Blame Military,” The New York Times, February 2, 2012, A10.

[15] David D. Kirkpatrick and Mayy El Sheikh, “Chaos and Lawlessness Grow After Days of Unrest in Egypt,” The New York Times, January 29, 2013, A10.

[16] “The States: Though the Heavens Fall,” TIME, October 12, 1962, (accessed November 2, 2013); available from http://content.time.com/time/magazine/article/0,9171,829233,00.html.

[17] Heba Fahmy, “Egypt army chief seeks immunity for military,” Al Jazeera English, November 3, 2013, (accessed November 3, 2013); available from http://www.aljazeera.com/news/middleeast/2013/11/egypt-army-chief-seeks-immunity-military-20131121881635251.html.

[18] David D. Kirkpatrick and Mayy El Sheikh, “In Egypt, Signs of Accord Between Military Council and Islamists on New Charter,” The New York Times, January 23, 2012, A8.

[19] Jared Malsin, “Why Egyptians Are Voting Away Their Freedoms,” TIME, January 14, 2014, (accessed April 27, 2014); available from http://world.time.com/2014/01/14/why-egyptians-are-voting-away-their-freedoms/.

[20] Sahar F. Aziz, “Egypt’s Protracted Revolution” Human Rights Brief, American University Washington College of Law, Forthcoming, (August 8, 2012) Available at SSRN: http://ssrn.com/abstract=2126830, 9.

[21] Aukerman, 10.

[22] Aukerman, 16.

[23] Conal Urquhart, “Hosni Mubarak sentenced to life in prison,” The Guardian, June 2, 2012, (accessed November 5, 2013); available from http://www.theguardian.com/world/2012/jun/02/hosni-mubarak-sentenced-life-prison.

[24] Office of the High Commissioner of Human Rights, 9.

[25] Ibid.

[26] Human Rights Watch, The Road Ahead, 1.

[27] David D. Kirkpatrick, “Egyptian Women Find Power Still Hinges on Men,” The New York Times, January 10, 2012, A1.

[28] Dan Murphy, “Virginity tests: Misogyny and intimidation in Egypt,” The Christian Science Monitor, 1 June 2011, (accessed November 2, 2013); available from http://www.csmonitor.com/World/Backchannels/2011/0601/Virginity-tests-Misogyny-and-intimidation-in-Egypt.

[29] Human Rights Watch, “Egypt: Retry or Free 12,000 After Unfair Military Trials,” September 10, 2011, (accessed November 2, 2013); available from http://www.hrw.org/news/2011/09/10/egypt-retry-or-free-12000-after-unfair-military-trials.

[30] BBC News, supra note 4.

[31] Tadros, Mariz. The Muslim Brotherhood in Contemporary Egypt. Durham Modern Middle East and Islamic World Series. Vol. 25. (London; New York: Routledge, 2012); 31.

[32] Human Rights Watch, “Egypt: Publish Fact-Finding Committee Report,” January 24, 2013, (accessed November 2, 2013); available from http://www.hrw.org/news/2013/01/24/egypt-publish-fact-finding-committee-report.

[33] Urquhart

[34] Human Rights Watch, “Egypt: Publish Fact-Finding Committee Report.”

[35] Kristen Chick, “Atheist and pro-Israel, Maikel Nabil tests free speech in Egypt,” The Christian Science Monitor, March 29, 2012, (accessed November 4, 2013); available from http://www.csmonitor.com/World/Middle-East/2011/1026/Egyptians-unhappy-with-lenient-sentence-for-Khaled-Said-s-killers.

[36] “Egypt police get 10 years for killing blogger,” Al Jazeera English, March 3, 2014, (accessed April 27, 2014); available http://www.aljazeera.com/news/middleeast/2014/03/egypt-police-get-10-years-killing-blogger-201433104449143778.html.

[37] “Political forces mark Maspero massacre 2nd anniversary,” Ahram Online, October 8, 2013, (accessed November 4, 2013); available from http://english.ahram.org.eg/NewsContent/1/64/83498/Egypt/Politics-/Political-forces-mark-Maspero-massacre-nd-annivers.aspx.

[38] Basil El-Dabh, “’Maspero massacre’ remembered on second anniversary,” Daily News Egypt, October 9, 2013, (accessed November 4, 2013); available from http://www.dailynewsegypt.com/2013/10/09/maspero-massacre-remembered-on-second-anniversary/.

[39] Aukerman, 15.

[40] Aziz, 9.

[41] Urquhart

[42] Aziz, 9.

[43] Amir Ahmed, “Ex-Egyptian President Hosni Mubarak, convicted of killings, will be retried,” CNN, January 13, 2013, (accessed November 3, 2013); available from http://www.cnn.com/2013/01/13/world/africa/egypt-mubarak-retrial/.

[44] David D. Kirkpatrick, “Citing Deadlock, Egypt’s Leader Seizes New Power and Plans Mubarak Retrial,” The New York Times, November 23, 2012, A4.

[45] Amir Ahmed, supra note 43.

[46] Aukerman, 16.

[47] Beth Van Schaack and Ronald Slye, International Criminal Law and Its Enforcement: Cases and Materials, (New York, NY : Foundation Press : Thomson Reuters, 2010):6.

[48] Maggie Michael and Mariam Rizk, “Egypt Police Officers Acquitted of 2011 Killings,” Associated Press, February 22, 2014, (accessed April 27, 2014); available from http://bigstory.ap.org/article/egypt-acquits-6-policemen-2011-uprising-case.

[49] Aukerman, 22.

[50] Hayner, 21.

[51] Human Rights Watch, “Egypt: Publish Fact-Finding Committee Report.”

[52] “Egypt’s Morsi draws up commission to look into protesters’ deaths,” Ahram Online, July 6, 2012, (accessed November 4, 2013); available from http://english.ahram.org.eg/NewsContent/1/140/47011/Egypt/First–days/Egypts-Morsi-draws-up-commission-to-look-into-prot.aspx.

[53] Rawya Rageh, “Egypt revolt fact-finding report is a mystery,” Al Jazeera English, May 11, 2013, (accessed November 4, 2013); available from http://www.aljazeera.com/indepth/features/2013/05/2013511859142229.html.

[54] Human Rights Watch, “Egypt: Publish Fact-Finding Committee Report.”

[55] Gregg Carlstrom, “Morsi and the military,” Al Jazeera English, July 5, 2013, (accessed November 4, 2013); available from http://www.aljazeera.com/news/middleeast/2013/07/2013750530499740.html.

[56] Rageh

[57] Ibid.

[58] Tadros, 43.

[59] Carlstrom

[60] Rageh

[61] Aya Batrawy (Associated Press), “Egypt’s president praises police despite criticism,” Denver Post, March 15, 2013, (accessed November 4, 2013); available from http://www.denverpost.com/rawnews/ci_22797194/egypts-president-praises-police-despite-criticism.

[62] Hossam Bahgat, “Who let the jihadis out?” Mada Masr, February 16, 2014, (accessed April 27, 2014); available from http://madamasr.com/content/who-let-jihadis-out.

[63] Ibid.

[64] Ibid.

[65] Ibid.

[66] Hayner, 23.

[67] “38 Muslim Brotherhood supporters killed in Egypt prison incident,” RTÉ News, August 19, 2013, (accessed November 4, 2013); available from http://www.rte.ie/news/2013/0818/468839-divided-egypt/.

[68] David D. Kirkpatrick and Mayy El Sheikh, “Egypt’s Ex-President Is Defiant at Murder Trial,” The New York Times, November 5, 2013, A1.

[69] Bahgat.

[70] “Govt report on post-June 30 violence won’t be released to public,” Mada Masr, February 17, 2014, (accessed on April 27, 2014); available from http://madamasr.com/content/govt-report-post-june-30-violence-wont-be-released-public.

[71] Ursula Lindsay and Jahd Khalil, “Counting the dead,” Mada Masr, March 15, 2014, (accessed on April 27, 2014); available from http://madamasr.com/content/counting-dead.

[72] “State investigation blames minority of armed protesters for Rabea violence,” Mada Masr, March 5, 2014, (accessed on April 27, 2014); available from http://madamasr.com/content/state-investigation-blames-minority-armed-protesters-rabea-deaths.

[73] “President orders further enquiry into Rabea violence,” Mada Masr, March 20, 2014, (accessed on April 27, 2014); available from http://madamasr.com/content/president-orders-further-enquiry-rabea-violence.

[74] Patrick Kingsley, “Egypt police captain jailed for 10 years over death of 37 prisoners gassed in van,” The Guardian, March 18, 2014, (accessed on April 27, 2014); available from http://www.theguardian.com/world/2014/mar/18/egypt-police-captain-jail-gassing-37-prisoners.

[75]“Court ban of April 6 Movement stirs controversy,” Egypt Independent, April 28, 2014, (accessed on April 28, 2014); available from http://www.egyptindependent.com//news/court-ban-april-6-movement-activities-stirs-controversy.

[76] Kareem Fahim, “Extending Crackdown, Egypt Accuses Journalists of a Plot,” The New York Times, February 21, 2014, A1.

[77] Human Rights Watch, “Egypt: Shocking Death Sentences Follow Sham Trial,” March 25, 2014, (accessed on April 27, 2014); available from https://www.hrw.org/news/2014/03/24/egypt-shocking-death-sentences-follow-sham-trial.

[78]Karl Vick, “Egypt’s Courts Mock Justice With More Mass Death Sentences,” TIME, April 28, 2014, (accessed on April 28, 2014); available from http://time.com/79530/egypt-mass-death-sentence-courts-muslim-brotherhood/.

[79] Bahgat.

[80]David D. Kirkpatrick and Mayy El Sheikh, “Amid Egypt’s Sweeping Crackdown, North Sinai Residents in Crossfire,” The New York Times, March 30, 2014, A8.

[81] Aukerman, 4.

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