The fact that the landmark trial of Hosni Mubarak is happening at all – in itself a remarkable feat – is glossed over by critics who are quick to point out the flaws in a trial that certainly would not meet Western expectations [EPA]The trial of ousted Egyptian President Hosni Mubarak has become the iconic emblem of the Arab Spring: a repressive US-backed dictator, suddenly brought down by popular mobilisation and displayed behind bars in the defendants' cage of a Cairo courtroom. It's an image most Egyptians, most Arabs, most people around the world never thought we would see.
And now come the scolding lectures. The trial is illegitimate, it may not meet international human rights standards. "The Mubarak cage is entirely gratuitous … The visual suggests a show trial, with the verdict already decided – which is, of course, the last thing the new Egypt needs", writes a Denver Post columnist.
Jackson Diehl, deputy editorial page editor of the Washington Post catalogues virtually the whole litany of complaints: "the staging of the trial reeks of haste and political calculation … Mubarak was brought to court less than six months after he was forced from office, and only two months after he was charged. Even the most diligent prosecutors would have been hard-pressed to put together a solid case against him. And Egypt's prosecutors lack credibility. They were appointed, after all, by Mubarak himself, and form part of a judicial system notorious for its politicisation." The only one Diehl left out was the concern that, as Washington DC's inside-the-beltway National Journal described it, the trial "will only make autocrats like Syrian President Bashar al-Assad and Libya's Muammar Qaddafi cling to power that much more fiercely and ruthlessly."
A symbol of due process
Factually, most of the specific concerns and accusations are indisputably true. The trial almost certainly can't be adequately prepared in such a short time; the legitimacy of Egypt's legal system remains contested because the judges, lawyers and everyone else were all appointed by the Mubarak regime; international human rights norms will almost certainly not be met. And it is certainly possible that the sight of a president not only overthrown by popular power but languishing behind bars rather than settling into a luxurious protected exile, could make it harder to negotiate the transfer of power away from King Hamad bin al-Khalifa in Bahrain or others of his brother kings and dictators.
But while the criticisms are right, the critics are still all wrong. The consequence of this trial will not be its outcome, or even its procedures, but the fact that it's happening at all. More than anything else, the symbolism of Mubarak on trial drives home the point that, whatever else happens, Egypt will never return to what it was. Putting Mubarak on trial in Egypt is equivalent to what Dr Zhivago says (if not directly from Pasternak, at least in David Lean's cheesy film version), about why they killed the czar in Russia: "it's to show there's no going back."
Obviously it's not that human rights standards are unimportant. Despite the breathtaking hypocrisy of US officials and commentators suddenly so concerned about the lack of human rights standards in the new Egypt, after decades of silence while the US armed and funded Mubarak's apparatus of arbitrary arrest, casual torture and extra-judicial killings in the old Egypt where human rights never existed, those standards do matter. But the human rights concerns we're hearing about today are rooted in a paradigm of procedural due process. That framework is important, but by itself not necessarily sufficient.
As renowned international law scholar and United Nations human rights rapporteur for Palestine Richard Falk notes: "We have to question whether the procedural side of justice is or really can be the most important part of justice in a revolutionary or post-revolutionary situation, where other considerations may be equally or more important. It's part of the liberal imagination to focus on procedural justice, often at the expense of substantive justice. In the Mubarak case, there is substantive justice inherent in bringing him to trial given his notorious public record of abuse and oppression, which necessarily makes the outcome a foregone conclusion."
The trial of Hosni Mubarak, his sons, and a few of his top officials will almost certainly not meet the human rights standards that Egyptian human rights activists themselves are continuing to fight for. A tribunal approved by the same military that Mubarak controlled for so long, with judges and prosecutors all appointed by the Mubarak regime, watched over by the same military that Mubarak led (especially a military that maintains its close ties to and dependency on the US and Israeli military establishments), will almost certainly not provide a model for an independent, human rights-based judiciary worthy of the people of Tahrir Square. That fight must continue, if there is any hope for transforming post-Mubarak Egypt into something different than the family dictatorship that it was for so many years. But institutionalising a serious commitment to human rights will not be achieved in this trial – yet that fact should not undermine its substantive legitimacy.
Similarly, the fear that putting Mubarak on trial will undermine efforts to reach negotiated arrangements for other dictators in the region to give up their power must not be used as an excuse to delay or abandon this trial. Certainly the sight of Mubarak behind bars, caged in the defendants' dock like the uncounted economic and political prisoners of his regime must frighten and outrage his regional and global counterparts. It may be that Hamad, Gaddafi, Assad, and others in the future will point to this trial as one more reason not to negotiate with popular uprisings demanding that they give up power. The contradiction between peace and justice, negotiations and accountability, can sometimes appear irresolvable.
Being part of the solution
But the solution cannot be to abandon the effort to hold dictators accountable for their crimes. Rather, it must mean the expansion of accountability from the single individual to much wider circles of the military and political officials who enable the dictatorship to function. Imagine if every minister of defence and internal security, every general, and every military commander actually responsible for implementing the violent suppression of a popular uprising against dictatorship, knew he faced the certainty of being held accountable for his actions in either a national or international criminal court. Under those circumstances, they are far more likely to abandon the dictator and resign much earlier, whether individually or en masse, long before repression of a popular uprising escalates to the slaughter of unarmed civilians or settles into civil war.
Right now, six months after the heady days of Tahrir Square and six months after the extraordinary ouster of Mubarak from power, Egypt's future remains uncertain. The military – Mubarak's old military, largely unchanged – remains far too powerful. The military-appointed interim government remains torn between retaining popular credibility by responding to the still-unmet demands of the still-mobilised population, and remaining in office by acceding to the dictates of their military overseers.
There are no guarantees. Except for the fact that Egypt's people, the people of Tahrir Square, have lost their fear of the government and the military. They are still mobilised, they are still working to hold at least parts of the overthrown dictatorship to account. Many people remain understandably uneasy about what Egypt's future holds. The struggle to shift power – real power, not only symbolic power – away from the military and to the people of Tahrir Square, continues. It is precisely in that context that the importance of the trial of Hosni Mubarak sharpens: it is proof that, whatever comes next, whatever structures of privilege and oppression Egyptians continue to face, it will not be the same as before. The trial of Mubarak shows there's no going back.
Phyllis Bennis is a Fellow of the Institute for Policy Studies and of the Transnational Institute in Amsterdam. Her books include Challenging Empire: How People, Governments and the UN Defy US Power.