In the non-resignation heard 'round the world, Hosni Mubarak vowed on Thursday to Egypt's "martyrs" to "hold accountable all the people who committed crimes against you, and with the utmost punishment and penalties."
After the Egyptian leader's departure from office on Friday, a larger question looms: who will hold Hosni Mubarak accountable for his 30 years atop one of the world's most repressive regimes?
Potential answers are finally starting to crystallize. The subject garnered virtually no attention during the 18-day uprising, as Mubarak's critics treaded carefully so long as he remained in office. Protesters overwhelmingly coalesced around a single demand: "Leave!" Opposition leader Mohammed ElBaradei called for Mubarak's "safe exit" from power, President Obama for a "graceful exit." Human rights organizations kept their distance from any talk of legal action that might have spooked the defiant dictator into digging in even deeper.
Since his resignation, all that has started to change. The Swiss Federal Council moved immediately on Friday to freeze Mubarak family assets in the country's banks. In Tahrir Square, cries of "We want the money," reportedly broke out in reference to the estimated billions Mubarak has amassed during his reign. Meanwhile, an anonymous group of Egyptian activists has petitioned the International Criminal Court (ICC) in The Hague to open an investigation into alleged crimes against humanity.
Mubarak, now believed to be in the Red Sea resort town of Sharm-el Sheik, is clearly aware of which way the winds are blowing.
Despite his repeated vows to die on Egyptian soil, The Guardian reported Friday that the United States, Saudi Arabia and United Arab Emirates have begun exploratory talks about exile in Dubai. Among the topics being discussed is immunity from prosecution over the some 300 deaths and widespread human rights abuses of the past two-and-a-half weeks.
The news underscores the difficulties inherent in bringing Mubarak to justice -- whether he chooses to stay in Egypt or to seek exile abroad. According to Nathan Brown, an expert on Middle Eastern politics, prosecution inside Egypt is unlikely since there's no real precedent for legal action against former political leaders. And despite the military's stellar reputation, its own complicity in past human rights violations might make any justice scheme aimed at former government officials a nonstarter. On the other hand, as Andrew Reiter, the co-author of a recent book on transitional justice, suggested, a prosecution could provide the military with a golden opportunity to pin the blame squarely on Mubarak.
Then there's the U.S. role. A Mubarak trial could be highly embarrassing for the American government. At the very least, the spectacle of a longtime U.S. ally being tried for crimes against his own people would make for disastrous PR. Moreover, a criminal investigation would likely showcase a smattering of tawdry details about U.S. cooperation with the Egyptian government, including CIA rendition of terror suspects and weapon sales. Reiter observed, "If there's too much investigation, then all of a sudden they say where did he get all the guns to kill all these people? Oh, the U.S.!" Whether the US could or would leverage its influence to head off a prosecution in the ICC or elsewhere is unclear, but the incentive to do so would certainly be strong.
Nevertheless, Scott Horton retains his optimism that Mubarak will be brought to justice. Horton, a human rights lawyer, expounded in Foreign Policy last week upon the myriad obstacles that now confront deposed dictators -- the ability of successor governments to launch criminal inquiries, the willingness of foreign countries to seize assets, the tenacity of international prosecutors in targeting past abuses. In the article, Horton noted, "Sixty-nine current or former heads of state have been successfully prosecuted for international crimes since 1990, and the trend has been moving steadily towards more prosecutions." Only in Saudi Arabia, or possibly one of the Gulf States, could Mubarak find true safe haven from prosecution.
The now-former dictator's strategy of deploying Vice President Omar Suleiman, his longtime confidant and intelligence chief, as a shield against domestic prosecution also seems to have failed. As Mubarak's grip on power slipped in the past days, so too did the prospect of Suleiman succeeding him. In a last-ditch effort to keep the state in loyal hands, Mubarak announced Thursday night that he would delegate the main powers of the presidency to Suleiman. But it was too late; the military had already seized effective control. Less than 24 hours later, another statement -- this one read by Suleiman -- ceded presidential authority to the Supreme Council of the Armed Forces, which has declared its commitment to civilian rule. Suleiman has since slipped from the radar screen altogether.
The old guard's waning influence in the corridors of power could augur ill for Mubarak's hopes of escaping scot-free, if he is indeed still in Sharm el-Sheik, as reported. On Saturday morning, the military announced a ban on travel by current and former government officials without the permission of the state prosecutor or Supreme Council of the Armed Forces. Already, the information minister has been prevented from leaving for London.
Should this latest development point toward future legal action against Mubarak and other members of his regime, Horton is confident that Egypt has the rule of law tradition to handle such an undertaking. "There is this legal culture there which is quite tenacious," Horton explained, noting the heavy presence of judges and lawyers in Tahrir Square in recent days. "I wouldn't rule out at all the possibility that a prosecutor will take on the big fish."
Mubarak, however, remains a wily customer, and his prosecution will only come about through strong political will. Within Egypt, at least, that appears to be on the rise, as demonstrated by the growing calls for justice among its people. But as Hanny Megally, Vice President of the International Center for Transitional Justice, cautioned, Egypt is entering uncharted territory. Where it sets its priorities for the future during this uncertain period of transition -- and where accountability ranks among them -- will ultimately go furthest toward determining the fate of the foremost symbol of its past.
Aaron Ross is a freelance journalist from Philadelphia. His work focuses on international affairs, politics and sport and has appeared in The Nation, Worldpress and Echoboomer. He blogs at AaronSRoss.wordpress.com.
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