Don't punish the individual for the crimes of the group.

Photographer: Ed Giles/Getty Images

Egypt's Arab Spring Gets a Death Sentence

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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When 188 people are sentenced to death in the same trial, as happened Tuesday in Egypt, you know something's gone terribly wrong in the system of justice. It's undeniable that there was a protest in the Kerdasa neighborhood of Cairo on Aug. 14, 2013, the same day that Egyptian security and military forces cleared Muslim Brotherhood supporters out of Tahrir Square some 10 miles away. Eleven policemen died, according to news reports.

But a collective trial and conviction ignores the structure of individual justice that criminal law is supposed to deliver, no matter the country. It's the latest depressing chapter in the death of Egypt’s short-lived democracy -- and a reason for the U.S. to rethink its instinctive tendency to back the government of former general Abdul Fattah El-Sisi.

Let's start with the basics: It's always difficult for a government to hold individuals criminally responsible for events that take place in a mob environment. As a result, any regime that wants to respond harshly to mass violence will be tempted to round up all the people who can be connected, however loosely, to the underlying events and put them on trial at the same time.

What's wrong with such mass trials? They repudiate the basic principle of criminal responsibility, which in the modern era has come to be understood as individual, rather than collective. It's only morally justifiable to punish someone for criminal wrongdoing if he or she in particular has committed a criminal act. It's not enough to be part of a group of which some members have acted wrongly. That goes for a city or a country or an ethnic group, which should not be held criminally responsible as a collective. And it also goes for a crowd assembled more or less spontaneously in protest.

It's true that, as a result, some people who are morally culpable for harm may go free. But it's also true that a government committed to enforcing the law has the opportunity to call witnesses to try to ascertain which individuals performed particular criminal actions. The burden to amass this kind of individualized evidence is the price the government pays for making its enforcement of the criminal law morally legitimate.

Given this background, it's not surprising that the governments most likely to use mass criminal trials are regimes that don't care much about the legitimacy of their criminal-law systems. If the point is to suppress opposition to the government and show who's in charge, it will seem more important to assert power than to punish the right people in an environment of particularized justice.

Since the ascendance of Sisi to the presidency, the Egyptian government has demonstrated that its priority is to re-establish fully the control of the security complex made out of the military, the secret police and the courts. In March and April, 529 and 683 people respectively were sentenced to death in trials in Minya. The total number of death sentences was later reduced to about 200, but the point had been made: Resistance to the government would be met with harsh and indiscriminate punishment.

What's most unfortunate is that this assertion of law-like lawlessness is taking place at precisely the same moment when the U.S. is re-establishing its relationship with the Sisi government. President Barack Obama met Sisi officially in New York during the United Nations General Assembly at the end of September. Military aid to Egypt, temporarily held back by an administration struggling with a law that forbids sending aid to a country that has experienced a military coup, has been re-established.

As a matter of realpolitik, it’s easy to see why the U.S. is prepared to embrace Sisi. He has, after all, won his fight to suppress the democratically elected government of Mohamed Morsi. The U.S. has a long record of allying itself with Egypt's dictators, from Anwar Sadat to Hosni Mubarak. In the current Middle-East, any regime prepared to cling to the U.S. probably looks like an appealing ally.

Yet there are costs to renewing an alliance with a government that is in the middle of such blatant violations of basic rights to a fair trial. No one in the region observing the contradictions will fail to notice that the U.S. cares little about the human-rights violations of its allies, and a lot about rights violations of its strategic enemies.

It might be said in response that because everyone in the Middle East already considers the U.S. to be hypocritical with respect to rights, further hypocrisy is actually costless. But that sort of cynicism can justify any outcome, no matter how outrageous.

The truth is that the U.S. could pressure Sisi not to allow mass trials reminiscent of Stalinist purges of political opponents.  So long as it doesn't, it remains complicit in the distortion of criminal justice. When it comes to demanding compliance with human-rights norms, credibility is crucial. Unless the U.S. insists on legitimate criminal justice now, when its leverage is greatest and Sisi is still figuring out how he’ll govern, it may forfeit the chance to exercise pressure later.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net