M. Cherif Bassiouni: Accountability, Legally Speaking

May 20, 2012

Meetings & Conferences

M. Cherif Bassiouni

M. Cherif Bassiouni

In a piece for PITAPOLICY on May 5, I wrote about M. Cherif Bassiouni‘s views on legal accountability in the Middle East: M. Cherif Bassiouni: Accountability, Legally Speaking.

PITAPOLICY represents the Politics, Interests, Technology, and Analysis of the Middle East & North African region, or the “pita-consuming” region. The owner of PITAPOLICY, Mehrunisa Qayyum, is an international-development consultant and a political-economy analyst of the Middle Eastern and North African regions.

Accountability, Legal Speaking…

Washington, DC~ On Tuesday, April 17th, the Elliott School of International Affairs at the George Washington University hosted the Institute for Middle East Studies 2012 Annual Conference. The theme of the conference was the legal dimension of the Arab Spring.

I had the opportunity to attend the keynote session presented by Egyptian-American United Nations war-crimes expert, M. Cherif Bassiouni. Among his lengthy list of titles and accomplishments, he is an Emeritus Distinguished Research Professor of Law at DePaul University College of Law, President Emeritus of the International Human Rights Law Institute, and President of the International Institute of Higher Studies in Criminal Sciences in Italy. Bassiouni is currently best known for chairing the Bahrain Independent Commission of Inquiry. On a personal note, I will proudly add that he is an alumnus (SJD) of the George Washington University Law School.

Bassiouni’s talk revolved around his reflections on the Arab Spring and its impact on the legal order in several Middle Eastern and North African (MENA) countries. From the outset, Bassiouni expressed his concern that despite the “Arab Spring” label, it is difficult to say at this time whether there has been any radical significance to the removal of heads of state in the MENA region. He elaborated that although Arab states and citizens sincerely seek accountability, he questions how that could be achieved in light of a paradox Arab states suffer: Although each country professes adherence to the rule of law, Arab states tend to suffer from a “symptomatic” and “dysfunctional” relationship between what is intellectually aspired to, and what is actually achieved. Bassiouni attributes this “enormous gap” to the Arab world’s historically ingrained culture that enables the “word” to predominate any deed.

As a case in point, Bassiouni points out that during his work with the Bahrain Independent Commission of Inquiry, the King of Bahrain expressed surprise that orders he made in Bassiouni’s presence were not followed, insisting that because he made the order, it was a done task. Bassiouni later noted that although Bahrain has a long way to go, it took significant steps to take action relative to other countries in terms of accountability and rule of law.

Bassiouni acknowledged Tunisia’s prosecution of the former head of state, Zine el-Abidine. However, he has been convicted in absentia and is currently in Saudi Arabia, which has no plans to extradite him to Tunisia.

Accounting for Accountability
Bassiouni also spoke about accountability challenges in Libya. He chaired the UN Commission of Inquiry on Libya (the commission’s report can be found here). His personal opinion is that when Muʽammar al-Gadhafi was captured, two Libyan militias were about to fight over having him in their custody. In order to avoid bloodshed, someone deliberately killed him.

Muʽammar’s son, Saif al-Islam—whom Bassiouni visited while in captivity—is also avoiding justice because the Zintan brigade that is holding him will not turn him over to the central government or to the International Criminal Court. Bassiouni speculated that this is because Saif al-Islam has large sums of money in foreign bank accounts, and that he promised the Zintan militia financial rewards in return for not turning him in.

Moreover, the rest of al-Ghadhafi’s family members are currently living in Algeria. The Libyan government did not seek to hold them accountable; it only asked the Algerian government to prevent the family members from engaging in any political activities against the current Libyan government. That is another example that Bassiouni finds in how Arab states are placing a “selective line” for respecting the limits of accountability.

Furthermore, Bassiouni criticized the Libyan government for its “monolithic concept of accountability” that does not apply to everyone. Currently, eight-thousand prisoners are deemed to have been supporters of al-Gadhafi in one way or another; however, they are not being tried, but were simply placed in jail based on accusations. Moreover, the Tuareg rebels were expelled and faced no due process. Thus, although there is a perception of justice, this “justice” has been very “selective” because of token prosecutions taking place against one side. He believes this selectivity will continue in the future.

Balancing Between Accountability & Reconciliation
Another challenge with implementing trial systems and general accountability in Libya is that it faces a national-reconciliation law and committee that are couching in alleged sharia and qiṣās terms. Eight of the nine members of the committee are Islamists, and Bassiouni believes that the Islamists’ interest in the reconciliation committee is an attempt to obtain votes for the parliamentary elections in June. He explained that because Libya is very tribal and familial, the committee’s release of a tribe member could lead to a “repayment” by the grateful tribe in votes.

Egypt is currently only handling 45 of corruption cases. Moreover, there is not a single case of violence by the regime prior to the revolution, and there are hundred cases being handled for alleged crimes by civilians following the revolution. Bassiouni also finds the 45 corruption cases to be “puzzling” because they are, for the most part, token cases based on “flimsy” accusations. Those indicted in the cases have, in fact, committed crimes that are far more serious. He named two examples:

Youssef Boutros Ghali, a former Minister of Finance, was sentenced to imprisonment for allocating impounded cars that he gave the interior ministry, which in turn distributed the cars. Relative to his key role in the institutionalization of government corruption, that is a “flimsy” charge.

Hussein Salem was a businessman with close ties to former president Hosni Mubarak. He is currently being held in Spain but has not been extradited to Egypt, where he is being tried in absentia. In 1979, Salem started a company in the United States and took part in arms sales from the United States to the Egyptian military. Ultimately, he was indicted for overcharging the Pentagon a total of $17 million—19% of which was obtained by Mubarak’s son, Alaa. Later on, Salem was licensed by the Mubaraks to supply Israel with natural gas; however, the gas was supplied to Israel far beyond the international market price. As such, Bassiouni suspects that the price difference was funneled to corrupt Egyptian officials.

Rule of Law: How Large is the Vacuum?
Another area of concern to Bassiouni is Egypt’s suffering from a “vacuum” in terms of the rule of law. For instance, the nationality requirements the Supreme Council of the Armed Forces (SCAF) is placing on the president are not in the Egyptian Constitution. Moreover, SCAF’s taking power is not sanctioned by the Constitution. Furthermore, although the rule of law is spoken about frequently in Egyptian discourse, there has been a great deal of selectivity in actually applying it. This is demonstrated in the changing conditions and delays in setting up a new Constitution.

During his talk, Bassiouni briefly reminded the audience that such paradoxes can at times be found in the United States as well. While acknowledging America’s lead in accountability and the rule of law, its foreign policy has often dictated in one way and acted in another. Ultimately, he remarked, these are issues of power and wealth that will continue for some time.

In his concluding remarks, Bassiouni said that despite his pessimism about the near future, the “jury is still out.” He reiterated that the rule of law is “indispensable”: without it, there can be no true democracy and no freedom.

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