After Egypt's January 2011 revolution ousted former President Hosni Mubarak, a conversation began amongst a number of international and Egyptian human rights groups regarding the need to promote international transitional justice precedents within the Egyptian context and to raise public awareness of them. This note argues that, in many ways, the Egyptian revolution surpassed the bounds of reformist transitional justice agendas. It begins by identifying two specific limitations in their scope: regarding the accountability of external actors and regarding the guarantee of economic and social rights. The article then describes the more far-reaching conceptions for change that were communicated in the key demands and subsequent campaigns of the 2011 revolution. Finally, it argues that Egypt's transition itself has stalled, as the ruling military council lacks the political will to propel transitional justice, rendering such discussions premature. It recommends that international practitioners take their cues from Egyptian actors negotiating these challenges, rather than proceeding without sufficiently questioning the context.
After former Egyptian President Hosni Mubarak was toppled in February 2011, the Supreme Council for the Armed Forces (SCAF) assumed executive power and declared the beginning of Egypt's ‘transitional period.’ Ever since, vigorous debate has taken place throughout the country on all aspects of the emerging political and social order. Shortly after Mubarak went on trial in August 2011, a conversation intensified within international organizations and some Egyptian rights groups on the lessons to be learnt from international transitional justice practice and the need to raise awareness about it amongst the Egyptian population.
In October and November 2011, Cairo played host to two major conferences on this topic, illustrating the wave of interest it has inspired. The first was organized by the Cairo Institute for Human Rights Studies (CIHRS), in partnership with the International Center for Transitional Justice (ICTJ), and the second by the Regional Bureau of Arab States of the UN Development Programme, in collaboration with Egyptian partners, including the literary magazine, Wighat Nazar . 1 The conferences brought together legal experts, civil society activists and political actors to discuss the core mechanisms of transitional justice as conventionally defined: trials, reparations, truth seeking, institutional reform and vetting. The participants also compared case studies, including several from the Arab world, with input from delegates from Tunisia, Libya, Yemen and Morocco.
Amidst this diversity, a breach was at times visible between participants from Arab organizations and their international counterparts. Amongst the latter, though with notable exceptions, several contributions seemed to build on three central assumptions. The first was that international transitional justice precedents offer the necessary prescriptions for Egypt at this time. The second was that the Egyptian people were unaware of what these involved and needed educating accordingly. The third, and most deceptively straightforward, was that Egypt's transition was well underway. Although the conference proceedings, and subsequent reflection, highlighted the need to problematize each of these premises, they have remained somewhat unchallenged in subsequent debate.
Seeking to broaden the discussion, this article argues that the Egyptian revolution surpassed the bounds of conventional transitional justice practice. First, the revolution highlighted two areas absent from conventional transitional justice agendas: the accountability of foreign actors and the pursuit of social justice, starting with redress for social and economic rights violations. This calls into question assumptions regarding the suitability of conventional international transitional justice to the Egyptian case. Second, the Egyptians demonstrating in 2011 proclaimed revolution and not reform, which challenges the notion of an ill-informed public in need of education about the reformist agenda of transitional justice. Egyptian public debate during the transitional period indicates a politically aware public seeking more fundamental solutions. Furthermore, the millions participating in the protests of 2011 articulated an emphatically Egyptian conception of their desired transition, opening up possibilities for change that an externally imposed transitional justice framework is likely to smother. Third, and most critically, this note cautions that Egypt's transition is at best suspended for the moment, as the SCAF lacks entirely the political will to propel real change, and has indeed worked to contain or overwhelm it. This reality renders implementation of transitional justice programmes premature, and even detrimental.
Lessons from International Practice: Issues of Scope
According to international experts, transitional justice's combination of judicial and nonjudicial mechanisms provides a rich resource for Egyptians conducting their own transition. Yet, in the case of Egypt, the popular revolution made demands for fundamental change and not reform. The slogan it borrowed from its Tunisian predecessor of January 2011 was ‘The People Want the Fall of the Regime,’ where the Arabic word for ‘regime,’ al-nizam , also connotes ‘order’ or ‘system.’ By contrast, transitional justice appears to offer mechanisms for a more conservative conception of transition, confined within the realms of criminal law and political reform. Several studies have reflected on the limits of this standardization, arguing that trials, truth commissions and memorialization are less effective in isolation or in sequence, and that their impact on enduring change depends on their link with a wider range of corrective mechanisms. 2 Two neglected areas in transitional justice are particularly relevant to Egypt: the role of external actors in supporting the ancien regime, and the regime's violation of social and economic rights.
Foreign Intervention and External Actors
Conventional wisdom in international human rights law and international relations alike has been criticized for its parochial foundations and pretensions to universality. Both fields have presented the political systems of the US and Europe as an ideal of ‘liberal democracy,’ a benchmark to which states in the global South ought to aspire. Peter Fitzpatrick and Eve Darian-Smith condemn the use of human rights here ‘as an instrument of occidental assertion … the “new” standard replacing civilization as the criterion for dividing and judging the world.’ 3
In the case of transitional justice, this is reflected in the selectivity of those under scrutiny. Prescriptions are regularly handed down to actors in developing states, where previous rulers received considerable support from external powers, yet the influential role of these powers goes unexamined. Critiquing this framework, Laurel Fletcher et al. argue that ‘histories of external intervention impact transitional justice initiatives’ and recommend considering ‘indigenous alternatives to foreign models of reckoning.’ 4
Indeed, overlooking the implications of past foreign intervention, and those it privileged domestically, only reinforces pre-existing imbalances of power. Rosemary Nagy discusses these ‘asymmetrical features of globalised transitional justice,’ tracing them ‘back to the Nuremburg precedent of victor's justice.’ 5 In post-2003 Iraq, the transitional justice process ignored the illegal US occupation, while the International Criminal Tribunal for the former Yugoslavia ‘[refused] to investigate violations of international humanitarian law committed by NATO [North Atlantic Treaty Organization] during its bombing campaign in Kosovo.’ 6 In Timor-Leste, the Special Panels for Serious Crimes could not access or indict perpetrators of violence from the illegal Indonesian occupation.
Exceptions come from the truth commissions of Sierra Leone and Timor-Leste, where the ‘international community’ was deemed accountable for indifference and for militarily backing Indonesia, respectively. 8
foreign involvement in violence – through indifference, funding, training … is largely absent from or negligible in official transitional justice records. This occurs most starkly with prosecution because trials create fairly individualised accounts of human rights crimes. 7
In Egypt, too, this imbalance has been seen. It is well-known that Mubarak's regime was supported by successive US and European governments and that his erstwhile allies have swiftly accommodated the new status quo, remaining beyond the law. Before 2011, Mubarak, his Chief of Intelligence General Omar Suleiman, Central Intelligence Agency members and other governments collaborated in the context of ‘extraordinary rendition.’ One of many victims was Egyptian citizen Ahmad Agiza, who was kidnapped by Swedish security and American intelligence personnel in Sweden while seeking asylum and deported to Egypt as a terror suspect after the 9/11 attacks, where he spent over 10 years in jail without charge. 9
The difficulty for Egyptian lawyers and activists is one shared worldwide by victims of crimes in which perpetrators act beyond the boundaries of their own state. Not only is the principle of universal jurisdiction difficult to apply, most notably due to the immunity of the implicated state actors, but there are also few vehicles for applying it. Belgium's 1993 law of universal jurisdiction was swiftly replaced with the narrower law of extraterritorial jurisdiction. 10 The International Criminal Court is not recognized by the Mubarak regime's main international sponsor, the US, nor is Egypt a member yet.
In this context of foreign culpability, many Egyptians bemoan the paternalism and insensitivity of certain accounts of Egypt's transition in the international media. These have counselled swift reconciliation with former regime officials and critiqued the Egyptian justice system, while neglecting to comment on the ties between those now behind bars in Egypt and current European or American administrations. 11
Social and Economic Rights
Another question often neglected in transitional justice practice is that of the kind of injustice being righted, and the issue of social and economic rights violations. Critiques of the neoliberal order and of local and global capitalist interests as culpable players are also rare. As UN High Commissioner for Human Rights Louise Arbour has warned, there is a ‘hidden assumption’ in much transitional justice practice ‘that ESC [economic, social and cultural] rights are not entitlements but aspirational expectations.’ 12 In South Africa, the Truth and Reconciliation Commission (TRC) focused on violence inflicted upon individuals, with apartheid as the context, rather than presenting the system as a crime in itself, whose local and international culprits should be found.
In Egypt, violations in the field of social and economic rights abound from Mubarak's three decades of rule. After a prolonged debt crisis, Mubarak accepted Egypt's first structural adjustment package from the International Monetary Fund (IMF) in 1991, imposing harsh neoliberal policy conditions. Public expenditure on welfare, health and education was slashed and sweeping privatization, deregulation and opening to foreign investment were introduced and then accelerated under Prime Minister Ahmad Nazif (2004–2011). This caused falling wages, increased job insecurity, soaring inequality and the strangling of union activity. The only union permitted was the regime-controlled Egyptian Trade Union Federation, whose chairman was corrupt businessman Hussein Megawer. 13
Egypt under Mubarak was thus flouting several international economic rights conventions. Alongside violating workers’ rights to unionize and bargain collectively, particularly in the private sector, the regime ignored child labour and wage discrimination against women while neglecting obligations to protect migrant workers’ rights abroad. This, despite Egypt's signing the International Labour Organization's Equal Remuneration Convention in 1951, the UN Convention on the Elimination of All Forms of Discrimination against Women in 1981 and the International Convention on the Protection of the Rights of all Migrant Workers in 1993.
Compounding this was the nepotism and corruption of political and business elites clustered around the ruling National Democratic Party (NDP). Mubarak's own fortune was estimated at $70 billion in February 2011. 14 Soon after, the Justice Ministry's Illicit Gains body found former Housing and Tourism Ministers Ahmad al-Maghrabi and Zuheir Garana to have sold state land to associates at below-market prices, while senior NDP politician and tycoon Ahmed Ezz monopolized the steel industry. 15 Other examples include eight NDP parliamentarians found in July 2010 to have approved millions of Egyptian pounds in state-funded medical clearances for patients ‘who were covered by other medical care funds, and in some cases fictitious.’ 16 There were also cases of persistent negligence, such as the Duweiqa disaster of September 2008, when a Cairo slum situated on a hillside collapsed, killing hundreds who had been promised state housing.
This system of crony capitalism enabled the violation of millions of Egyptians’ basic economic rights by politicians enjoying immunity from the law. This and the question of external actors’ culpability represent serious problems of scope in conventional transitional justice practice, illustrating that its rigorous standards may nevertheless not represent a panacea in the Egyptian case.
Beyond Transitional Justice: Visions for Change in Egypt's Popular Revolution
If the violations committed by the Mubarak regime outstrip conventional provisions of transitional justice, then by the same token the assumption that Egyptian society needs an education in its theory and application seems flawed. Certainly, knowledge of international precedents can only enrich public debate. Yet, Egyptians’ intimate understanding of the range of crimes committed by the Mubarak regime, and their consensus on several far-reaching solutions for the future, were made clear in the slogans and demands of the revolution's opening 18 days. These were then elaborated on by civil society campaigns that gathered momentum after Mubarak's ouster in order to maintain pressure on the authorities for change.
Unsurprisingly, a year on, competing visions for the transition have emerged, some more conservative than revolutionary. This has been the outcome of political manoeuvring amongst forces in Egyptian politics and not a transitional justice prescription. Meanwhile, the repertoires of both protesters and organized campaigns reveal conceptions of a political transition that command broad popular support until today and extend beyond transitional justice's conventional categories.
In 2011, youth groups called for protests on 25 January, National Police Day in Egypt, and announced a ‘Day of Rage’ against ‘Torture, Corruption, Poverty and Unemployment.’ The central slogan of the revolution developed in the marches themselves: ‘Bread, Freedom, Human Dignity.’ This resounded in most subsequent demonstrations and was used to rally citizens to the one-year anniversary marches of January 2012. Both these phrases communicated a popular recognition that Egyptians’ political, civic, social and economic rights had been violated together, by the same authorities. They affirmed citizens’ quest to restore their affronted dignity on all these counts. In a lecture on the nexus between justice and development, founder of the Egyptian Initiative for Personal Rights Hossam Bahgat recalled, ‘The people of Egypt completely surpassed this [artificial sequencing of rights] debate, they went out on police day to protest police abuse and demand social and economic justice.’ 17 While they were not compartmentalized in reality, the protesters’ demands may be considered in turn here to illustrate this, starting with those corresponding to international transitional justice mechanisms.
One of the earliest and arguably the most uniting call was for the trials of old regime members, along with corruption investigations. The focus on Mubarak was clear in protesters’ banners and chants. After his resignation on 11 February, the protesters ended their occupation of public squares on the assumption that the SCAF would fulfil promises to try Mubarak and his aides. News of the arrest of several Cabinet ministers was welcomed by revolutionary groups and demonstrators, who packed Tahrir Square on 18 February and went to the courthouse for the first hearing on 24 February. 18 Yet, when the SCAF appeared to be dragging its feet on Mubarak's trial, demonstrators collectively ‘returned to Tahrir.’ Their renewed sit-ins lasted from 8 July to 1 August and were credited with finally bringing Mubarak to trial on 3 August. 19
The related demand to overhaul state institutions was raised most clearly regarding the Interior Ministry during early 2011. In March, protesters raided several State Security offices after it emerged that officials were shredding incriminating dossiers. Demands for vetting within the state media institution, the Radio and Television Union, were raised in numerous demonstrations and conferences at the Journalists’ Syndicate from March, culminating in the open-ended sit-in launched outside the ‘Maspero’ media building on 26 January 2012.
A third demand closely related to transitional justice practice was for compensation for the families of the victims of state violence. According to the Ministry of Health, 840 Egyptians died and 6,467 were wounded during police repression of the protests from 25 to 28 January 2011 and in attacks up until 11 February by baltagiyya , or ‘thugs,’ known to have been hired by State Security. 20 After six months – and the pressure of the July 2011 Tahrir sit-in – the SCAF set up a ‘martyrs’ fund’ to administer reparations to bereaved families.
Beyond these transitional justice-related themes, Egyptian protesters – in their millions in demonstrations on 1 February, 18 February and 13 May 2011 and 25 January 2012 – demanded fundamental change in the political system: government by popular representation, autonomous policy making and social justice guarantees. These demands highlight the issues of external interference as well as socioeconomic rights discussed above.
Criticism of external players and calls for freedom from dependency were expressed during January 2011 in slogans calling Mubarak a stooge of the US and Israel and deploring his foreign policies vis-à-vis Israel and Palestine. Mubarak was condemned for keeping the Rafah border crossing closed at Israel's request during the siege it began on Gaza in 2007 and for selling Egyptian natural gas to Israel below market prices. Protesters demanded that the crossing be opened and the gas sales cease.
The complaint that Egypt's foreign policy and economy follow the preferences of external actors has been repeated by revolutionary groups since Mubarak's ouster. When the SCAF accused the revolutionary 6 April Youth Movement of receiving ‘foreign funding and training’ in preparation for the 25 January protests, the movement's response was that the Egyptian military and political regime have been receiving over $1 billion in American military and economic assistance annually since Egypt's conclusion of a peace treaty with Israel in 1979.
In November 2011, when Minister of Planning and International Cooperation Fayza Abul-Naga accepted a new IMF package, the influence of international financial institutions over Egypt’s economy came in for renewed criticism. The Popular Campaign to Drop Egypt's Debt, formed a month earlier by senior journalists, economists and young activists, described the debt as ‘odious’ and lacking in popular sanction. 21 Bahgat urged that instead of offering the same packages,
He expressly called for ‘an audit of all the foreign assistance and the role of experts in Egypt,’ specifying the role of the US Agency for International Development in shaping the education system for 20 years as an example, as well as the role of the European Union, Egypt's largest trade partner. 22
the international development community and international financial institutions need to pause and reflect about what they did under Mubarak and [Tunisia's ousted President Zine El Abidine] Ben-Ali and about their role in the future.
On the related issue of social and economic rights, activists’ campaigns have addressed the demand for social justice raised in the revolution in myriad ways. Egyptian transitional justice expert Moataz El Fegiery describes ‘an atmosphere of impunity under the Mubarak regime regarding economic crimes’ and calls for ‘a drastic investigation and transparent prosecution of all economic crimes.’ 23 Speaking of the transitional justice literature, Bahgat has noted
the strong focus on justice and security sector reform … on truth seeking and egregious human rights violations, torture, extrajudicial killings, and to a lesser extent political corruption … but not on egregious human rights violations conducted in the context of socioeconomic policymaking and implementation. 24
The issue of stolen public funds is one of the most resonant and most fraught examples, as such large sums are difficult to return and deeply connected with Egypt's need to restore its national autonomy and resources. This was one of the core focuses of the demonstrations of 2011 and prompted the formation of the Popular Committee to Restore Egypt's Wealth, headed by lawyer Hossam Eissa. Meanwhile, newly independent labour unions have demanded the restoration of workers’ rights long denied under Mubarak, repeatedly defying an early SCAF decree banning strike action.
Is Egypt Really in Transition?
Clarifying the differences in scope between reformist and revolutionary visions for transition helpfully marks out the Egyptian context from that of well-known transitional justice precedents. Yet, the paradox that Egyptians are experiencing today is the sheer ephemerality of their transition. Indeed, in presupposing that a transition has occurred, transitional justice practice ‘can problematically obscure continuities of violence and exclusion.’ 25 This has definitively been the case in Egypt since February 2011, according to its political, labour and human rights activists and scholars.
As per Egypt's unilateral constitutional declaration of March 2011 and the follow-up document of November, the full range of executive powers lies with the military council. The generals have presided over a year and counting of military trials of civilians, repression of demonstrations and increasing media censorship, while successive governments have been compliant. This has led the political groups associated with the revolution to emphasize that ‘the revolution continues’ ( al-thawra mustamira ), that only the head and not the body of the regime has fallen and that the full range of protest and civil disobedience strategies may therefore be legitimately employed against the ‘remnants’ ( fulul ) of the Mubarak regime.
It goes without saying that the condition common to the most successful cases of transitional justice is the existence of the political will to propel the process. Even in the case of South Africa, where the popular African National Congress government adopted a narrow transitional justice agenda, the TRC confronted ‘ongoing police violations of human rights … racialised socioeconomic inequalities, de facto apartheid in the design and use of geographic space, and general racism.’ 26 In Sierra Leone, political will itself was lacking: the Commission published its report in 2004 and the government snubbed it with a short, ‘inadequate’ white paper. 27
Similarly, in Egypt, activists, legal scholars and judges affirm that there is no political will on the part of the SCAF either ‘to put the real perpetrators of violence behind bars’ 28 or, indeed, to refrain from violence or to relinquish power. First, little has occurred in the way of vetting or institutional reform. In April 2011, Egypt's High Administrative Court dissolved the NDP, but many of its members still ran in the November elections. Moreover, the SCAF selected one of Mubarak's prime ministers, Kamal al-Ganzouri, to head its second appointed government in November 2011. The overhaul of the Interior Ministry and state media were still being called for during the anniversary marches of 25 January 2012. Most extraordinary perhaps is that, at the time of writing, three of Mubarak’s most influential aides had been allowed to join the presidential race: former Foreign Minister Amr Mousa, former Prime Minister Ahmad Shafiq and former Intelligence Chief Omar Suleiman.
Second, the pace and scope of former regime members’ trials have been disappointing for many. According to CIHRS Deputy Director Ziad Abdel Tawab,
SCAF generals’ role as Mubarak's aides is a Pandora's Box they appear keen to keep closed. This is compounded by prior executive interference with the judiciary. The Mubarak trial is a case in point, where the prosecutor-general was appointed by Mubarak himself and controls the charges brought against him. 30
None of the violations of the past, including forced disappearances, constitutional and human rights violations have been prosecuted, except for some cases of corruption. This is an attempt by the military to show that the revolution was only about the corruption. 29
Third, reparations have been a low priority for the SCAF, mainly used for political legitimacy purposes. Many victims have been unable to access the ‘martyrs’ fund,’ for example. Furthermore, in May 2011, the Egyptian Centre for Economic and Social Rights had to file a lawsuit to request that exceptional payments be extended to the wounded of January–February 2011. The Centre charged that ‘the government has failed to provide [the victims] with reasonable humanitarian and legal compensation.’ 31 Meanwhile, there is a ‘lack of transparency in the issuing of the budget, in lawmaking, in the negotiation and acceptance of foreign debts’ under the generals. 32
Most jarringly, institutions such as the police and prisons function in the same way as they did under Mubarak. New developments have been the unprecedentedly high number of military trials, with 12,000 civilians referred since February 2011. The SCAF's only response to the public outcry and the ‘No to Military Trials Campaign’ was to pardon 2,000 prisoners ahead of the 25 January 2012 marches. Meanwhile, military police have participated in violently crushing demonstrations. Amongst the most brutal was the crackdown at Maspero on 9 October 2011, in which more than 20 (mostly Coptic) Egyptians died while protesting the burning of churches by extremists. 33 There have also been cases of fatal torture in jail, such as that of Essam Atta, who died in September 2011, 34 and of cover-up tactics preserved from Mubarak's era. The autopsies of both Atta and activist Khalid Said, killed by police in 2010, recorded their deaths as caused by swallowing a bag of drugs. 35
The generals also interfere with the media, as the Mubarak regime did for years. 36 Top posts at Maspero are appointed by the Ministry of Information, and editors maintain links with security officials who have a say in appointments and coverage. 37 Within a regulation vacuum, many outlets therefore disseminate the establishment line, which involves drumming up threats of lawlessness, economic instability and religious violence in post-Mubarak Egypt, and attributing this to the revolution. Meanwhile, employees engage in self-censorship. 38 Social media and citizens’ journalism have gone a long way in mitigating these shortcomings, as have independent journalists on certain private channels, but these have been harassed by the military or by self-censoring media tycoons. 39 More insidiously, state television has adapted to the new context by hosting pro-revolutionary political figures but presenting them as ‘radical’ and marginal. This contradicts recommendations for transitional situations, in which media should ‘foster the minimum consensus that human rights violations occurred and that they were wrong.’ 40
The military council is also intimidating and arresting activists in human rights organizations, most recently in the sweep of December 2011. 41 Meanwhile, economic policy remains unchanged and recent IMF packages carefully preserve the neoliberal status quo. 42 With the new parliament elected, there is a need for engagement by political parties but particularly the strongest among these, in the Islamist camp, have proved unwilling to defy the SCAF's position and have even cooperated with the generals in an effort to secure more power. Indeed, the SCAF failed to usher in presidential elections until popular pressure in January 2012 forced them to be called for May. Meanwhile, the SCAF has so often reneged on its decisions that many prefer to wait for confirmation while speculating that one of the current candidates has likely already received military backing and will win through assistance with election campaigning, if necessary. This incumbent would be expected to preserve the generals’ privileges and the status quo. The military's role in civilian politics would then not recede but rather be mediated, not unlike it was under former President Anwar Sadat, its influence continuing through the sprawling military-industrial complex. 43
Hence, today, transitional justice mechanisms like trials and reparations are being selectively developed by a state elite that is as yet untransformed. It remains an executive power in full control of repressive and media apparatuses that allow it to engineer and impose an incomplete transition. This is curtailing the potential for real change, by distorting the image of the revolution, dissuading the wider population from their enthusiasm for it and dividing political ranks over their optimal response.
However well-intentioned their efforts, a warning note must be sounded to those interested in implementing transitional justice in Egypt today. It may be premature to push the transitional justice agenda when its principal precondition, political will, is absent. It may even be damaging, if it legitimizes a ‘transitional’ order little different from the old and allows mechanisms such as amnesty or truth commissions to overtake their judicial counterparts. This is why Egyptian activists have consistently maintained that the transition has yet to come, advising their international colleagues not to engage the military government. 44
Moreover, the demands of the Egyptian revolution, however contested, have transcended the bounds of reformist transitional justice practice. Egyptian rights activists are thus resourcefully incorporating the principles of transitional justice into their current campaigns, while aiming at more far-reaching goals and showing their international colleagues how to support them. In this context, the most effective international practitioners are those with knowledge of historical context and who take their cues from Egyptians negotiating contemporary challenges. Indeed, the revolution is further proof that there is no ‘one size fits all’ remedy for transitional justice and that it is invariably preferable to promote ‘local’ formulae in light of global experience, rather than vice versa. Today, as the varying levels of mobilization recall Mubarak's last years in power, the call for transitional justice may have to become a strategy for political pressure in Egypt, before it can become a process for genuine change.