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Dictators in Double Jeopardy: The Fate of International Justice (Part II)

by Mariana on 05 Dec 2012 | Comments

By Seth Engel*

Recent events in Cairo have made the world ever more aware of the problems in seeking the elusive concept of post-conflict justice. The struggle for international justice, begun by the Nuremberg trials of Nazi officers, continues more than ever to perplex scholars, frustrate activists, and complicate post-conflict resolution. And the concept is growing more and more important, with the International Criminal Court’s (ICC) growing role in Middle Eastern politics, its first trial completed in July 2012, and its unprecedented indictment of the wife of former dictator Laurent Gbagbo. While nominally a domestic issue, Egypt is facing a similarly perplexing threat to international justice.

Double Jeopardy in Egypt

Hosni Mubarak, despotic Egyptian president (and US ally) of 30 years, was sentenced to life in prison this past June for being an “accessory to murder” of protestors during Egypt’s revolution.  The judgment, however, came so quickly on the heels of Mubarak’s ouster that both his supporters and detractors have questioned its legality, fairness, and neutrality. Both sides have vowed to appeal the ruling. Presiding Judge Ahmed Rafaat himself, on pronouncing Mubarak guilty, freely admitted  that there was no evidence that the defendant had ordered the killings.

President Mohamed Morsi, in his widely denounced November 22 edict, decreed that all Presidential initiatives would henceforth be unreviewable by the courts, including his order that Mubarak would be re-tried for his role in the killing of protestors during the country’s revolution. This aspect of the Nov. 22 decree is just as deadly to the rule of law as the infamous demolition of checks and balances.

The double jeopardy principle prohibits such a retrial. A nearly universal principle of law that bars the retrial of the same defendant for the same crime upon exhaustion of all appeals, double jeopardy protections are implied by various articles of Part Four of the 1971 Egypt Constitution  and provisions of the 1937 Egyptian Penal Code. Protection from double jeopardy is further enshrined in the European Convention on Human Rights, the International Covenant of Civil and Political Rights, the Fifth Amendment to the United States Constitution (“…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”), and at least 50  other national constitutions.

The principle of double jeopardy is central to the rule of law, wherein a fair trial requires, for example, the ability of the accused to be present at trial, to be represented by an attorney, to cross examine witnesses and to examine the evidence presented against him. But all of these rights are worthless if a government could simply re-prosecute the accused after an acquittal or judgment. The state could literally loop prosecutions endlessly, wearing down the defendant into a confession, an unfair plea bargain, or a conviction at a second or third trial. Double jeopardy is an essential protection from the coercion of state power.

That being said, Morsi’s decree is not the first exception to the double jeopardy principle. In Egypt, LGBT activitists have long decried  the retrials of gay men for “contempt of religion” activities.

In the United States, both the federal and state governments could prosecute a defendant separately for the same crime. Under a 1932 Supreme Court case, Blockburger v. United States, the test to determine double jeopardy is thus: a successive prosecution of the same defendant is admissible only if each offense requires proof of an additional element not present in the other.  This is why, for example, an attempted murder trial would prohibit a second trial for premeditated murder, though it would not prevent conspiracy to commit murder (which requires proof of a second person taking an “overt act”). This test has further been complicated by the fact that the discovery of new information (such as the subsequent death of the victim) may allow retrials and that certain kinds of mistrials allow for the prosecutor to re-try the case.

The real problem with Morsi’s intended re-trial of Mubarak, however, lies not in the specifics of double jeopardy protections, but in the circumvention of the rule of law for political gain. Here is where we find the crux of our international justice debate, as prosecution for political gain is unfortunately a hallmark of the prosecution of public figures, especially deposed dictators. A threat to the fair trial of these former strongmen, while perhaps not the worst fate for people of unenviable human rights records, is a threat to the fair trial right to all accused citizens of every country.

Defending the Indefensible

Such politically motivated, due process-infringing trials have and continue to occur in the West – see the Monica Lewinsky affair, the trial of Saddam Hussein, and the Bush-era Guantanamo trials. But that does not mean that presidents and international organizations can ignore fair trial rights they swore to uphold simply because the accused is a disfavored member of society.

Most criminal attorneys will admit to having fun at their jobs from time to time. The attorney of a deposed dictator, however, would rarely say the same for obvious reasons. The moral opprobrium attached to defending someone who has been accused of a crime against humanity is heavy enough to turn an attorney off from the idea of representing the accused at all.  But it is these very cases, with defendants against whom public opinion is most virulent, that most require due process and fair trial guarantees. After all, rights are most precious to those who don’t have them.

For this same reason, the public defender is the backbone of the rule of law in United States courts. Public defenders juggle a client list that has, in the recent election season, been alternately described as lazy,  in search of handouts,  and generally parasitic .  It is therefore all the more important to provide due process rights to disfavored clients; the mark of a truly just society is the impartiality and fairness extended to its imprisoned members. This rings equally true in the USA, Egypt, and the world.