JURIST Columnist Haider Ala Hamoudi of the University of Pittsburgh School of Law says that the allegedly irregular criminal proceedings going on against Americans working for NGOs in Egypt and an Iraqi vice president appear ordinary to the members of the criminal justice systems of those countries…

Two recent sets of criminal legal proceedings taking place in the Arab world have garnered much media attention. The first of these is the Iraqi criminal investigation of Vice President Tariq al-Hashimi in Baghdad, who stands accused of running terrorist death squads. The second are the upcoming trials in Egypt against members of various nongovernmental organizations (NGOs) because they participated in the management of unregistered and unlicensed institutes in Egypt funded by foreign donors and because the NGOs were allegedly involved in some sort of conspiracy to divide Egypt. Many, but not all, of those accused are Americans.

The two sets of proceedings bear a number of striking resemblances. Both seem to have been motivated by political considerations, for example, and both involve the exploitation of nationalist or sectarian sentiment against individuals alleged to present some sort of existential threat to the state. Most importantly, however, international media commentators have dismissed the proceedings in each case as illegitimate on the basis of procedures that are described as highly irregular, even as the state’s judicial organs in each state insist on carrying forward with the proceedings in spite of such broad criticisms. What might account for this domestic obstinacy in the face of international criticism? Little has been advanced by way of explanation.

One possible factor, however, and a consideration whose implications are more far reaching than merely these two cases at hand, is that the respective criminal law instrumentalities involved in the proceedings do not find them particularly irregular at all. Let us examine the Iraqi case first. The common criticism made is that the evidence consists almost entirely of confessions on the part of the defendants. There appears to be no documentary or forensic support for the case against Hashimi, in other words. Yet this is precisely how Iraqi criminal proceedings work in the vast majority of instances, from my own extensive observations and on the basis of a variety of studies about them. The reliance on confessions, combined with the suspicious means by which such confessions are obtained, are a common complaint made by human rights activists as to Iraqi criminal trials. The US and UK governments, along with various aid organizations, publicly and privately funded, have spent a small fortune attempting to encourage broader use of forensic science, to little avail. It would therefore no doubt be puzzling to police officers, investigative judges, attorneys and judicial administrative authorities in Iraq that international media was dismissing the trial as a farce on the basis of the fact that the overwhelming evidence was a series of dubious confessions on the part of Hashimi’s bodyguards. Something similar might well be said of Egypt. The criticism in that case has been at least in part that while it is true that the NGOs were not registered and licensed, it is also true that this is the case for virtually all NGOs because of the difficulties in properly registering with the Egyptian authorities. Prosecution only proceeds when the NGOs in question engage in activities that the government seeks to suppress, making it politically motivated and repressive, the criticism goes.

Again, this is hardly a surprise in the context of the Middle East, and certainly would not be regarded as irregular by the organs of criminal prosecution in Egypt. Legal requirements so onerous that organizations, individuals and institutions often ignore them are a sad reality not only in Egypt, but the Arab world generally. I worked for a unregistered NGO for several months in Iraq, and knew of numerous others operating under the same status, advising government leaders and even commenting on parliamentary legislation and constitutional amendments, all while technically “illegal.” Indeed it might be easy to forget that the Arab Spring arose when Muhammad Bouazizi lit himself on fire after being ordered by a police officer to close his fruit stand — because he did not have a license. This is a fact which, I surmise, was true of virtually every fruit vendor in Tunisia on that day. That this is the reality, and that authorities pursue these cases on a selective basis for their own reasons — political at times, material (in search of a bribe) at others — is so unremarkable that Egyptian investigators could very well be puzzled as to how any claim of illegitimacy could proceed on that basis.

The other criticism of the proceedings in Egypt, that they rely on logical leaps that can hardly be sustained and are more conspiratorial than real, depends on an observer who is not predisposed to ascribe to the US a sinister motivation to thwart democratic ambitions in the Middle East generally and Egypt in particular. Such an observer would be hard to come by in Egypt, and so what appears to be a logical fallacy to a Western observer seems almost self-evident to an Egyptian, brutalized by decades of dictatorship and aware of the strong US support offered to a state, Israel, which most Egyptians regard with strong distaste. Thus do such trials proceed in these parts of the world precisely as any other trial would, and the objection to them is bewildering to many in the judicial branch given how utterly normal they appear. To those conducting the trials, it is not they who are somehow acting in an irregular manner, using faulty process, but the West that is seeking to impose some heightened form of process on the proceedings merely because it wishes to protect the defendants in question. The political motivations, in other words, are on the part of the international commentators, and not the domestic justice system, in their view.

The point, to be clear, is not to defend these trials as legitimate. Indeed beyond the authorities themselves, the Arab populations hardly seem enthused about much of this, which is why there has been so much agitation in the region as of late. The point, rather, is that at least some of the problem lies in the manner in which criminal proceedings unfold in the Arab world, and indeed much of the globe, rather than any irregularities in these proceedings themselves. Under normal circumstances, a peasant who is accused of stealing two chickens from his richer neighbor is brought in for questioning, which can be conducted in suspicious circumstances. The peasant almost invariably confesses to the crime, and the judge accepts the confession, thereby ending the proceeding. A fruit vendor who has annoyed an influential government officer is prosecuted for selling fruit without a license, and when he cannot produce a license, he is convicted, whether or not a single fruit vendor in the entire country has or could reasonably obtain a license. International observers do not comment on the proceedings in these instances, of course, not because they find them normal, but because they are unaware of them. Yet they are a serious problem that has pervaded the Arab world, one that has helped lead to its considerable tumult, and that, most relevant for these purposes, creates a great deal of resentment when international objections are raised only when the defendant in question happens to be an American, or a vice president with American friends.

The solution, in the end, will hardly be to release these Americans in Egypt, or to end the proceedings against Vice President Hashimi. Such a result, while perhaps salutary, is only a temporary respite, until the next set of proceedings commences of different, privileged defendants. The solution, rather, is to improve criminal law prosecution throughout the Arab world such that irregularities of this sort seem altogether less normal than they are now. That is a daunting task indeed.

Haider Ala Hamoudi is an Assistant Professor of Law at the University of Pittsburgh School of Law. His scholarship focuses on Middle Eastern and Islamic Law, particularly as it pertains to matters of commerce. Hamoudi spent most of 2009 in Baghdad advising the Constitutional Review Committee of the Iraqi parliament, responsible for developing amendments to the Iraq Constitution aimed at national reconciliation, on behalf of the US Embassy in Baghdad. He is currently preparing a book on the drafting and subsequent evolution of the Iraq Constitution to be published with the University of Chicago Press. He maintains a blog on Islamic law.

Suggested citation: Haider Ala Hamoudi, Irregularities of Criminal Justice in Egypt and Iraq, JURIST – Forum, Feb. 27, 2012, http://jurist.org/forum/2012/02/haider-hamoudi-iraq-egypt.php.