(AFP File Photo)
By Nourhan Fahmy
“But in a divine moment, God willed to bring the people back to life and with fiery enthusiasm, they gathered in millions on 30 June 2013. The military and the police heeded their calls on 3 July to reclaim the people’s first revolution that was held hostage by the Muslim Brotherhood, marking the dawn of a new era in modern Egyptian history.”
The above is a translated excerpt from the 280-page summary explaining Judge Mahmoud Al-Rashidi’s decisions on 29 November 2014 in the “Trial of the Century”, in which former president Hosni Mubarak faced charges relating to the killing of hundreds of protesters during the 18-day uprising that toppled him in 2011. The summary includes eight pages solely dedicated to providing a historical context to explain the rationale behind the court’s decisions.
The court’s decision to drop all charges against Mubarak “made it very clear, of course, that this is not about a body of evidence that has been examined. [Nor is it] about the legal arguments that have been levelled by the parties. This is about writing for history, really,” said Egyptian journalist and human rights activist Hossam Bahgat, in an interview on Democracy Now.
The historical context, which mainly relies on accounts from witnesses who held senior positions in the state, recounts events that date back a decade. It starts by referring to a generalised scheme by the US and other powers to divide and conquer the Middle East through “the Great Middle East Project”. It then focused on the situation in Egypt, specifically since 2005, and how the ailments of the political regime resulted in the “popular revolution on 25 January 2011”.
According to this narrative, the Muslim Brotherhood in collaboration with the “axis of evil of the United States, Qatar, Turkey, Israel, and Iran” contributed to inflaming the public. The “Brotherhood militias” were held responsible for exploiting chaos and “shooting at both the police and the demonstrators, leading to the death and injury of many.” Allegedly, the objective of the Brotherhood was “to instigate violence between the people, the police, and the army, in the hope of sparking a civil war.”
Hoda Nasrallah, a criminal justice lawyer with the Egyptian Initiative for Personal Rights (EIPR) said that “in order to validate the verdicts, the court had to point towards a certain actors or conspirators who are responsible for the murders, so we can see a logical sequence of events”.
Nesrine Badawi, a Visiting Assistant Professor of Law at the American University in Cairo (AUC) said: “This is a narrative that does not indict the 25 January Revolution, but at the same time validates the claim of a conspiracy…that narrative has now become endorsed/ratified by a court judgement.”
Regarding how the police force dealt with the protests, the judge believed that the majority of police officers used water cannons or tear gas in compliance with orders. However, a “handful” of unruly individuals from the police acted on their own behalf and chose to disperse protests using firearms and live ammunition.
Thus, the court arrived at the conclusion that the protestors were killed predominantly by the Muslim Brotherhood and its alleged “foreign aides”, as well as by a small number of individual officers who had disobeyed orders. This effectively absolves the higher ranks of the Ministry of Interior, who were accused in this case, from their association with the aforementioned “handful” of rogue officers who are actually responsible for killing protestors.
“By virtue of the criminal law, we attribute responsibility to the individual and not the institution, so you don’t take the institution as a whole to be responsible,” explained Badawi. “The inherent assumption in the criminal law is that the transgressor is not the state; when those institutions are themselves the accused, the whole system falls apart, it can’t handle that.”
The criminal justice system is premised on the principle of individual responsibility, which entails following certain procedures – evidence collection, the elements of the crime, the idea of intent and criminal intent – and all this becomes a little more difficult to establish when it comes to systematic crimes compared to individually committed crimes.
The original perpetrators of the crime of killing protestors in this case remain anonymous because the evidence that the court used does not identify particular individuals involved in the crime.
“Even with the presence of videos that were recorded by civilians showing a police officer hitting someone, for example, or shooting at protestors, the identity of those people in the video is very difficult to establish, and even if they were established, it is hard to prove whether someone was actually killed in this particular incident,” said Nasralla.
Nasralla said the judge in the case of Mubarak did not offer a clear-cut decision on whether he was innocent or not. “The court relied mainly on procedural arguments in both the murder and the corruption charges levelled against Mubarak, thereby dismissing the charge altogether on procedural grounds, without ruling on its merits. This is a manifestation of the political aspects of this trial.”
In Mubarak’s first trial, the verdict relied on the legal argument that both Mubarak and former Minister of Interior Habib Al-Adly were responsible for the murder and injury of demonstrators by “refraining from taking a positive act required by the terms of their office and the constitution,” according to the EIPR report on the trial. Therefore, it became a “crime of omission”, meaning that the security establishment was absolved from its responsibility from the very beginning, by blaming certain individuals only because they held positions that required them to take actions to protect the demonstrators from the original perpetrators, who are mostly unknown individuals.
In the retrial, the Cairo Criminal Court re-examined the case, unbound by the initial verdict, and acquitted Al-Adly and five of his aides on all charges, while charges against Mubarak were also dismissed.
Some analysts argue that the emphasis placed on individual rather than institutional responsibility is an attempt to absolve the institution of its responsibility. According to Badawi, the rulings serve to vindicate the security establishment, and the dismissals of the charges brought against individuals who were part of the institution represent a “legitimacy stamp”.
“Mubarak’s verdict is an attempt to wipe out our collective memory of what happened. Let’s not pretend that we, collectively, do not know that there was an excessive use of force by the police, we know it. We are just creating a narrative that attempts to erase that,” asserted Badawi.
