Why everyone walked free in the Mubarak trial
Judge Mahmoud al-Rashidy knew that the acquittal of former Interior Minister Habib al-Adly and six of his aides on charges of inciting and conspiring in the killing of protesters during the January 25 revolution would shock many.
He released a 280-page long judgment to mitigate the shock.
As Rashidy flatly dismissed the charges against former strongman Hosni Mubarak on procedural grounds, the judgment that was given to the media must be read, as his reasoning behind the exculpation of the interior minister and his aids.
The case largely hangs on the testimony of security officials and former regime officials. Incriminating testimony has been dismissed and individual acts are justified given the extenuating circumstances.
At the heart of it all, Rashidy argues, is a global conspiracy.
Below, we have laid out the key arguments in Rashidy’s judgment:
Through the document, the judge moves beyond the scope of the case and gives his view of the events that occurred within the case’s time frame (January 25-31). Rashidy maintains that an American-Zionist conspiracy had been plotting to divide the country.
This claim, Rashidy continues, is based on the testimonies of “the nation’s wise men,” namely the late intelligence head Omar Suleiman, former Defense Minister Hussein Tantawy, Mubarak-era Prime Minister Ahmed Nazif, his head of intelligence Mourad Mowafy and other top officials, in addition to journalist Ibrahim Eissa.
The Muslim Brotherhood were key conspirators, helping groups like Hamas and Hezbollah to sneak into the country. These actors, the court concludes, executed a choreographed plan on January 28 to bring down the state.
The court also concluded that the Brotherhood was behind the violence that occurred on January 28, 2011.
Prior acquittals of police officers
Since the defendants have been charged with incitement, as well as aiding and abetting, the judge argues that the acquittal of the original perpetrators makes it impossible to tie the defendants to the crime.
The judge refers to over 10 cases in which heads of security and officers were acquitted of charges of killing protesters on grounds of self-defense.
Unrecorded ministerial meetings
There are simply no records from the three meetings, in which the plans to deal with the protests were devised.
These include one Cabinet meeting and two meetings between Adly and his aides that took place on January 24 and 27.
In the absence of these records and in order to determine the orders that were given, the case rests on the testimonies of the defendants, which the court decided to admit, in addition to over 100 testimonies from Interior Ministry officials ranging from security chiefs to ground forces, who all asserting the following:
Police forces on January 25 and 28 were only equipped with batons, shields, helmets, tear gas and water cannons – no rifles or other firearms.
The court refers to written material from the defendants to their subordinates as evidence. The orders were to treat protesters with “self-restraint,” “good treatment” and “courtesy."
Some civilian testimonies supporting this argument were also admitted, most notably Eissa’s. In his, he states that he didn’t see firearms being used, adding – in his own security analysis that was admitted – that if the police had indeed opened fire, the number of deaths would have been much higher.
The court also argues that the defendants had not ordered the use of violence during 2010 protests, concluding that this is proof that the defendants were well aware that violence was not a solution.
Killings around police stations don’t count
The testimonies admitted to the use of live ammunition only around police stations or other strategic buildings, which the judge argues is self-defense and also outside the scope of the case, which specifies the killing of protesters in public squares.
“It became evidently certain for the court that the group that targeted those security spots occupied by officers and employees went there with a conceived plan by an organized group that hides behind religion to tamper with the security and stability of the country,” the judge added.
Incriminating testimonies are all inadmissible
The court lists over 40 eyewitness statements, from the injured or the families of those killed, which cite police use of firearms.
These were all dismissed on varying legal grounds.
The testimonies of four doctors, who treated gun-related injuries in field hospitals were also thrown out as they pertain to events after January 31.
The judge also added that statements taken by investigators were incomplete and inadequate, failing on occasion to record the time and place of injuries.
Other testimonies were negated by forensics reports which averred that injuries listed were caused by other pre-existing health conditions or were not consistent with firearms.
The only incriminating testimony from a police officer came from Lieutenant General Essam Hosny Abbas, who said that he learned through General Hassan Abdel Hameed that the defendants had decided during their meeting the on eve of 28 January to stop the planned protests with force.
Abbas' testimony was a second-hand account and the original source, General Abdel Hameed, who attended the original meeting, gave a contradictory testimony.
Individuals are individuals
The court contended that a minority of police forces did use violence against protesters. However, it determined that they were acting individually, defying their superiors’ orders to refrain from violence.
As for running over protesters over with police trucks, the court argues that the resulting small number of deaths – compared to the millions in the streets – proves there were no official orders, and that these incidents constituted “individual acts that were imposed by the circumstances surrounding the protests and the unprecedented violent acts witnessed in the country.”
Who could have guessed it?
The defendants were also acquitted of the charge of unintentionally causing grievous harm, which rests on their failure to contain the violence.
Based on several official testimonies, the court concludes that there was no way for the security apparatus to predict the scale of the protests and the resulting violence. The defendants, therefore, did not neglect their duty. On the contrary, the judgment states they carried it out with conscientiousness and insight.
Dismissing the prosecution’s argument that the decision to cut telephone and Internet communication by Adly affected communication between ground forces and stirred violence, the court asserted its firm belief that the decision was made in the interest of national security.
Only God (and history) can judge
Rashidy concludes with one final mitigatory note: “The ruling for or against [Mubarak] after the end of his life is for history and for the Ultimate Judge.”