10 years on: Why Egypt’s Rabaa massacre never went to court

There’s plenty of evidence of what happened that day at Rabaa in Cairo: Eyewitness accounts, pictures, videos, even a documentary, “Memories of a Massacre,” that was released this month.

But despite all the evidence, those who were there say there has been no real justice to atone forthe massacre that happened in Cairo’s Rabaa al-Adawiya square a decade ago.

On 14 August, 2013, Egyptian security services took up positions around the square where an estimated 85,000 people were protesting the political situation in the country. The demonstrators were there because earlier in July, the Egyptian military had deposed the recently elected president, Mohammed Morsi, also a high-ranking member of the Islamist-political movement, the Muslim Brotherhood. In response, his supporters began to rally in different parts of the country.

According to reports from human rights organisations, almost immediately after telling the crowd in Rabaa to disperse, security forces began firing into the crowd. Although estimates vary, it is thought between 600 and over 1,000 people were killed that day.

After interviewing more than 200 witnesses and compiling a 188-page report, Human Rights Watch said the action likely amounted to a crime against humanity. Other rights organizations have described it as one of the worst mass killings of demonstrators in modern history. It is also, they say, one of the most visually documented atrocities in modern history.

So why hasn’t anybody ever been held accountable?

The Egyptian government previously called the human rights organisations’ reports on the massacre “biased.” It has not responded to DW questions about whether there was a need for further investigation.

Egypt organized its own investigations into the massacre. One was by a fact-finding committee set up in late 2013, and another by the country’s National Council for Human Rights. Both reviews said protesters at Rabaa were at fault because many were armed, something eyewitnesses still dispute. Both conceded that security forces acted with excessive force but did not recommend any charges.

In 2018, Egypt’s parliament passed a bill granting judicial immunity to senior military leaders for acts they may have committed in the course of duty, from when the Egyptian constitution was suspended in July 2013 to when parliament was reconvened in 2016.

Then, in 2021, Egypt approved amendments to laws governing its own Supreme Constitutional Court or SCC. These amendments mean that if any international court or tribunal should one day find Egypt guilty of, say, crimes against humanity, and orders reparations, the decision would be passed back to the SCC. This local court would then decide whether the verdict was valid or not.

“[The amendments] send a clear message,” lawyer Mai El-Sadany wrote in a 2021 post for Carnegie Endowment. “To those inside the country … [they] signal that those committing violations may continue to do so while enjoying protection domestically. To the global community, Egyptian authorities are challenging the international system.”

As a result, the search for justice has moved into the international arena for the past decade. But even then, there hasn’t been much success.

Human rights organisations have called on the United Nations Human Rights Committee to investigate the massacre but it has so far chosen not to. Egypt has not fully acceded to the African Court on Human and Peoples’ Rights, a judicial arm of the African Union. Nor is it a member of the International Criminal Court.

In 2014, Egyptian lawyers and the Freedom and Justice Party, to which deposed President Morsi belongs, asked the ICC to investigate alleged crimes against humanity at Rabaa. But the ICC turned them down, saying that those requesting the investigation were not legitimate representatives of the Egyptian government.

When a senior Egyptian military commander, Mahmoud Hegazy, visited an arms trade fair in the UK in 2015, lawyers acting for the Freedom and Justice Party asked British police to arrest him over allegations of torture and because he was “integral to the dispersal plans in Rabaa.” The police turned down the request because Hegazy had special diplomatic immunity.

“So the only real options you’re left with are the sorts of inquiries by various United Nations bodies. Or universal jurisdiction,” said Rupert Skilbeck, director of Redress, a London-based legal rights organisation that supports torture victims trying to obtain justice.

In its purest form, the legal principle of universal jurisdiction allows authorities in any country to prosecute individuals who have committed war crimes in any other country, regardless of whether they or their crimes have a connection to the prosecuting nation.

In practice however, it is often watered down by various considerations. These include whether there are witnesses in the prosecuting country, whether there’s any chance of arresting the alleged criminals and also, perhaps most importantly, whether local prosecutors want to take on the case. Often there are political aspects attached to that. “The reality is that universal jurisdiction in this case would be quite difficult because there’s no real possibility of extraditing senior people from Egypt,” Skilbeck told DW. “And not many countries are prepared to do trials in absentia,” he added, referring to trials conducted without a defendant in court.

Even in Germany, recently described as a world leader in its use of universal jurisdiction, a case against Egyptian officials is unlikely.

First of all, you would have to prove a crime against humanity had been committed, according to legal definitions, explained Andreas Schüller, director of the International Crimes and Accountability program at the Berlin-based European Center for Constitutional and Human Rights. The organisation was a prime mover behind Germany’s recent prosecution of Syrian war criminals using universal jurisdiction.

“As far as I know there are no courts or other institutions that have made this finding. So you’d need to establish it for the first time, which requires a big effort,” Schüller told DW.

The case against Syrian war criminals went ahead because of a confluence of factors, including witnesses, evidence and perpetrators in Germany, as well as the political will. “But this is not like the Syrian case,” said Schüller. “There were no diplomatic relations with the Syrian government. Egypt has a lot of political support internationally. It is also not a signatory to the relevant UN treaties or the ICC’s Rome Statute. So nobody is really willing to take these cases, which would also require a very targeted investigation and a certain constellation of factors to get it prosecuted.”

“We see this all the time in human rights work,” added Redress’ Skilbeck, “where certain Western countries will not take a firm stance against other countries because of the political situation.”

Schüller also believes international interest has shifted to countries like Ukraine, Sudan or Iran. Amr Magdi, a senior researcher at Human Rights Watch, has similar opinions. “The political climate in the region has contributed to human rights violations in Egypt being overlooked,” he told DW. “At that time, the whole region was rife with problems, including civil war in Syria, Yemen and Libya.”

The Egyptian government has managed to play on issues that concern the rest of the world, Magdi argued, “so that democracy and human rights are overlooked in exchange for Egypt taking care of European interests, such as combating irregular migration, security cooperation and economic relations.” Changes in attitudes toward Egypt.

Nevertheless, there may yet be some minimal hope that justice could one day be brought to bear on the Rabaa case.

A lot of the legal decisions made about the case happened in the immediate aftermath of the 2013 military coup. Back then, the international community appeared to be uncertain how the Egyptian government would develop — the military coup also had many supporters and the Morsi government had faced popular protests against it. But over the past decade, that has changed and the current government, led by Abdel Fattah el-Sissi, is more often criticized for its authoritarianism and an increasingly dire human rights record.

“The point is a good one,” said Skilbeck. “This litigation was done very quickly after the events. While things are hot, people don’t want to act immediately. In any event, it often takes quite a long time to bring evidence together.”

He pointed to long-running historical examples, like international tribunals looking at crimes in Rwanda, Cambodia, the former Yugoslavia, as well as World War II, noting that, “international justice normally does take a very long time.”

“Even a normal trial for murder will probably take a couple of years to be completed,” he said. “So it’s not surprising they take so long. But the long-sighted approach is absolutely the only way to do it.”