Michael Eisner is the General Counsel and Chief Operating Officer of DAWN (Democracy for the Arab World Now). Sarah Leah Whitson is the executive director of DAWN.
Published in Responsible Statecraft, April 23, 2021
This month, the Biden administration set aside its plan of "putting human rights back at the center of American foreign policy" to hand a fresh "blank check" to former President Trump's "favorite dictator," Egyptian President Abdel Fattah el-Sisi.
The administration went out of its way to request immunity for one of Egypt's most notorious human rights abusers, Hazem el-Beblawi, from a federal lawsuit seeking damages against the former Egyptian prime minister for his role in the torture, arbitrary detention, and horrific abuse of an American citizen.
The Biden administration's attempt to protect Beblawi — on the heels of its rubberstamp approval of $197 million in advanced tactical missiles to Egypt — provides an early indication of how talk of prioritizing human rights in U.S. relations with Egypt will remain just that, and how relations will revert back to business as usual with Al-Sisi's authoritarian, military government.
Former Egyptian Prime Minister Beblawi was named as a defendant in the lawsuit filed by Mohamed Soltan on July 1, 2020. Soltan is seeking damages against Beblawi for his oversight and control of the post-coup repression that encompassed Soltan's abuse, torture, and detention. The events described in the complaint took place over a 21-month period, beginning on August 14, 2013, in Cairo's Rabaa al-Adawiya Square, where thousands had gathered in a massive sit-in to protest the military-backed coup.
On that day, in accordance with the plan devised and approved by Beblawi, Egyptian security forces stormed the square, firing live ammunition at peaceful protesters, killing approximately 1,000 protesters and wounding thousands more. The event came to be known as Rabaa Square massacre, which Human Rights Watch described as "one of the world's largest killings of demonstrators in a single day in recent history," second only to the Tiananmen Square massacre. In its exhaustive research about the massacre, HRW specifically singled out Beblawi as one of the architects of the massacre.
Soltan, fluent in both English and Arabic, had volunteered as a translator for Western journalists during the protests. He was amongst the wounded, shot in the arm while speaking to a reporter. He managed to escape the square, but a special forces team detained him just days later.
Soltan subsequently spent more than 21 months in detention, where he says Egyptian security forces horrifically abused him, both physically and mentally. He describes how prison guards beat him with fists, batons, and whips, put out cigarettes on his back, deprived him of medical care and sleep, and held him in solitary confinement for months. At one point, guards locked him in a room with a dying man, then left him in the cell with the corpse over the next day. In April 2015, more than 19 months after his arrest, Egyptian authorities prosecuted him in a mass trial and sentenced him to life imprisonment with 35 other defendants on baseless, fabricated charges.
Under enormous pressure from the Obama administration, the Egyptian government released Soltan in May 2015, but forced him to give up his Egyptian citizenship in the process. Soltan returned home to the United States and founded an organization in Washington, DC championing the cases of other political prisoners in Egypt and Saudi Arabia.
Soltan also had an opportunity to seek justice in his own case, and he seized it. While Soltan was still in prison, Beblawi had resigned his job as prime minister in February 2014, and moved to Washington, DC to take up a cushy post as an "Executive Director" of the International Monetary Fund. Armed with American laws specifically designed to hold perpetrators of the worst human rights abuses accountable if they dare to set foot in our country, Soltan filed a complaint in federal court, seeking damages against Beblawi for his direct role in Soltan's abuse, torture, and detention. Beblawi has sought to dismiss the case before addressing Soltan's allegations, maintaining that his status at the IMF makes him immune from lawsuits in the United States.
The U.N Headquarters Agreement sets forth the applicable law regarding immunity for officers of U.N. Specialized Agencies like the IMF. The relevant section states that, "principal resident representatives of members" shall be entitled to immunity upon agreement amongst three parties: "the principal executive officer of the Specialized Agency, the Government of the United States and the Government of the member concerned."
One of the three parties — the Specialized Agency, or the IMF in this case — has yet to weigh in on the question of Beblawi's status. But with the assistance of the Trump administration, Beblawi's attorneys tried to fill in the gap, attaching a letter from the U.S. State Department stating that according to its records, Beblawi was "notified to the Department as assuming his duties as the principal resident representative" of Egypt to the IMF "effective November 2, 2014."
The Court didn't accept the Trump administration's assurances, though. It wanted to see for itself the IMF notice introducing the new principal resident representative. By order, dated December 19, 2020, the Court requested that the United States produce "documentation of the IMF's agreement," or barring that, a legal analysis explaining why the Headquarters Agreement, which seems to clearly require a tripartite agreement in designating principal resident representatives, doesn't require the IMF's agreement in the case of the defendant Beblawi.
Inheriting the case from the Trump administration, the Biden administration, despite its rhetoric about elevating human rights concerns in U.S. relations with Egypt, chose to adopt the same approach as its predecessor. In its statement of interest to the Court, dated April 1, 2021, the Biden administration ignored the Court's specific request for the government to provide documentation from the IMF or to "consult with the IMF and obtain such documents."
Given the Biden administration's apparent eagerness to have this case go away, it seems likely that the IMF documents in question simply don't exist. Instead of admitting as such, the administration kept on the offense, asserting that, "the IMF notified State that El Beblawi assumed the position as Egypt's Principal Resident Representative to the IMF, effective November 2, 2014." With respect to the legal analysis requested by the Court, the Biden administration opined that the Headquarters Agreement didn't mean what it said about requiring the agreement of the Specialized Agency to establish immunity, and that, regardless, none of that mattered anyway, because its own determination on Beblawi's immunity was "beyond judicial review."
The Court must now decide whether to defer to the Biden administration's "statement of interest" on Beblawi's immunity, which is in effect a motion to dismiss on behalf of the absent Beblawi. Beblawi quit his job and left the United States in October 2020. He didn't disclose the reason for his departure, but it might well have something to do with becoming a defendant in a federal lawsuit. Meanwhile, the IMF has declined to comment on whether Beblawi was in fact a principle resident representative, and seems intent on staying out of the case completely.
Whatever the Court decides on the immunity issue, the Biden administration has, in its effort to protect Beblawi, sent a troubling message that it has no intention of challenging Sisi's brutal military government on its human rights record. Soltan brought his lawsuit under the Torture Prevention Act legislation passed in 1991 that has enabled victims of torture to gain some measure of justice against their oppressors, whatever their rank or title.
In trying to short-circuit Soltan's lawsuit, the Biden administration, if successful, may well sabotage the only opportunity for the thousands of Beblawi's victims to achieve some measure of judicial accountability and to establish an historical record of the massacre in Rabaa Square . In coming to Beblawi's defense, the Biden administration also reassures other members of the Sisi military junta who continue to commit grievous human rights abuses against their own people, that they will not be held to account, not by this administration that will keep the arms flowing and have their backs when the chips are down.
Photo credit: Egypt's then-interim prime minister, Hazem Beblawi, gives an interview at his office in Cairo after Egypt's interim president approved a controversial law regulating demonstrations, Nov. 24, 2013. (Photo by Gianluigi Guercia/AFP via Getty Images)