Transitional justice, a common feature of most regime changes whether they are the result of a civil war or a revolution, has been practised in different ways in the course of the Arab Spring. In Tunisia, we have seen the indictment and sentencing in absentia of exiled ex-president Ben Ali; in Libya, the lynching of dictator Muammar Gaddafi and the on-going uncertainty over the trial of his son, Saif and in Yemen, the quasi-blanket amnesty for ex-President Ali Abduallah Saleh.
Often deeply questionable in terms of their legality and legitimacy, nowhere has transitional justice been as divisive as in Egypt. The indictment, trial, successful appeal, and now re-trial of former president Hosni Mubarak already indicated significant divisions between his erstwhile supporters (especially in the security forces and state apparatus) and his secular and religious opponents.
Even more so the military coup against his successor - the democratically elected Muslim Brotherhood representative Mohammed Morsi - and his recent indictment on charges that potentially carry the death penalty has further deepened the rift that goes through Egytian society. This has been evident, above all, in the continuing violent unrest across the country that came to a head last weekend with 53 people killed during the “celebrations” of the anniversary of the 1973 war with Israel.
El-Baradei railroaded
At the same time, Mohammed el-Baradei, the Nobel Laureate, presidential candidate and former deputy prime minister in the post-coup government, has been indicted on various charges from conspiracy with the Muslim Brotherhood, to being an agent of the US to failing in his duties when he resigned from his post after the military forcefully dissolved protests by pro-Morsi protesters back in August.
On the one hand, these trials and tribulations of transitional justice in Egypt are illustrative of the political instability of the country, the weakness and uncertainty of its military rulers and their efforts to consolidate their grip on power - in which they have so far clearly failed.
The continuing attempts to crush the Muslim Brotherhood by depriving it of its political and spiritual leaders, banning it as an organisation and confiscating its assets have done little to weaken its support.
While it is clearly not supported by a majority of Egyptians - and support it had in the election which saw Morsi installed as president in June 2012 declined over a year of disastrous government - those who do support it remain committed to its cause.
Moreover, if there is any lesson from recent Egyptian history it should be that suppression is futile. The Muslim Brotherhood, born in Egypt in 1928, was banned for 29 years yet emerged as one of the most powerful social and political forces in the aftermath of the overthrow of Mubarak in 2011.
Failure of justice
On the other hand, these developments in Egypt betray a fundamental misunderstanding of what transitional justice is meant to achieve following regime change - contributing to building the foundations of a peaceful, just and democratic society. Perhaps with the exception of Tunisia, all the Arab Spring countries have failed on more than one count in this respect, but Egypt is by far the most obvious failure among those where regime change has actually happened.
This is largely due to social and political developments in Egypt itself, but there are a number of contributing factors beyond Egypt. US and EU attempts to mediate between Morsi and his opponents failed prior to the coup against him. Western condemnation of the coup has been half-hearted at best, thus giving the impression of at least tacit approval of removing from power a political force disliked in Western capitals.
Only now, as it becomes increasingly clear that Western interests are not served by a continuation of increasingly violent and ineffective military rule have sanctions been imposed by the United States. The removal of these sanctions - the freezing of some of the US$1.5bn annual military aid - has been made conditional upon restoration of a civilian government.
While at one level clearly an overdue move by Washington, and more likely than not borne out of a degree of desperation and exasperation, it is unlikely to have any immediate positive effects. The Egyptian reaction was predictable, as was that of regional supporters of the military-backed government, above all Saudi Arabia, which has long embraced the new arrangements in Egypt. As the US and its allies inside and outside Egypt are losing influence and leverage, a country at the heart of a strategically important region is sliding further towards protracted instability.
The developments in Egypt exemplify the broader failures of the Arab Spring. There has been a collective inability among local, regional, and international leaders to manage difficult transitions in ways that stabilise and reunite fractious societies, offer transparent and accountable governance and live up to the promises of economic and social development.
The obvious miscarriages of transitional justice from Mubarak to el Baradei to Morsi may be the trigger for further violence to come, yet they are also symptomatic of these broader failures.