12/07/2012 12:13 pm ET Updated Feb 06, 2013

Double Jeopardy in Egypt: Why You Should Care

The difficulties inherent in the elusive search for international justice have been highlighted in neon by recent events in Cairo. Ever since the post-World War II Nuremberg trials of Nazi officers, international justice has been an issue that perplexes legal scholars, frustrates activists, and complicates post-conflict resolution. And the concept is growing more important as the International Criminal Court's (ICC) swells into a key role in Middle Eastern politics. Though nominally a domestic issue, Egypt is facing a similarly vexing threat to international justice. This threat should be followed closely the world over.

Double Jeopardy in Egypt and the World

Hosni Mubarak, Egypt's despotic former president (and U.S. ally) of 30 years, was sentenced to life in prison this past June for being an "accessory to murder" of protestors during Egypt's 2011 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 Mubarak had ordered the killings.

President Mohamed Morsi, in his widely denounced Nov. 22 edict, decreed that all presidential initiatives would henceforth be un-reviewable by the courts, including the order that Mubarak would be retried for his role in the killing of protestors during the country's revolution. For the reasons below, this aspect of the Nov. 22 decree is just as deadly to the rule of law as its infamous demolition of checks and balances. At times it is the furtive, persistent threat to peace that is the most pernicious.

The double jeopardy principle prohibits Mubarak's retrial. Double jeopardy is a nearly universal principle of law that bars the retrial of the same defendant for the same crime upon exhaustion of all appeals, and its protection is implied by various articles of Part Four of the 1971 Egypt Constitution and provisions of the 1937 Egyptian Penal Code (for whatever legal value these documents still have). 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 or her. 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 activists have long decried the retrials of gay men for "contempt of religion" activities.

In the United States, a 1932 Supreme Court case set the test to determine if double jeopardy is violated; Blockburger v. United States only allows a successive prosecution of the same defendant 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 a trial for conspiracy to commit murder (which usually requires proof of a second person taking an "overt act"). This test has further been complicated by the fact that federal and state governments can prosecute a defendant separately for the same crime, 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 retry the case.

In Egypt, however, the real problem with Morsi's intended retrial of Mubarak does lie in the specifics of double jeopardy protections. Morsi seeks to circumvent the rule of law for political gain. This is where we find the crux of our international justice debate, and what matters most to the international community. Prosecution for political gain is unfortunately a hallmark of the trial of public figures, especially deposed dictators. But 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 in every country. A chamber full of well-suited politicians screaming for the death sentence is no better than a mob of starving farmers calling for a summary execution.

Defending the Indefensible

Politically motivated, rights-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 military tribunals. 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. These rights are the only thing separating citizens, including those in prison, from the otherwise unlimited police power of the state.

Some criminal attorneys will admit to having fun at their jobs from time to time, especially when they feel like they are standing up to the state on behalf of the little guy. 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 been alternately described by recent U.S. presidential candidates 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 it extends to disfavored members. This rings equally true in the U.S., Egypt, and the world.

Cross-posted on the International Justice Central website.

Note: None of the above should be taken as legal advice; it is not offered as such. Each jurisdiction differs in its criminal procedure. A local attorney should be consulted for legal advice.