We are all responsible for what happens in our world.  ​ In the intricate tapestry of global affairs, we face a stark reality: amidst a global crisis, fundamental human rights are besieged, as the gravest international crimes are perpetrated by both state and non-state actors. In this tumult, what can be done?   The development of international law (including in public international law, international human rights law, international humanitarian law, and international criminal law) since World War II has been fundamental for averting another world war. It constitutes the universal framework safeguarding individual rights and establishing a rules-based international order (RBIO) that mandates states to uphold principles such as territorial integrity and peaceful conflict resolution.   Yet, despite the promise and hope imbued by the post-World War II or ‘never again’ generation, international law is increasingly branded as too weak or even a failure altogether. Many are of the impression that international law is ‘regularly side-lined’ and ‘ignored or depreciated’ when matters of great political and economic importance arise.[1] Whilst most states abide by international law most of the time, outrageous violations by powerful states create the perception that the law lacks ‘compliance pull’, fostering an expectation that states will not abide by their international obligations and an environment where international law is likely to deteriorate.[2]   Whilst not unjustified , such a wholly negative narrative f ails to capture the full breadth and complexity of international law’s role in shaping global affairs. Beyond the realm of visible failures and shortcomings, there exists a vast network of customary international norms and treaty obligations that underpin the fabric of our RBIO. The invisible but present day-to-day functioning of customary international law and the international treaties that drive global political and diplomatic relationships is too often disregarded. Thanks to the ​Convention on International Civil Aviation, you can enjoy air travel; thanks to international agreements through the WTO, you could enjoy your orange juice this morning; thanks to territorial sovereignty, many of you likely did not wake up in an armed conflict. Further, the language of the law enables leaders to speak of the ‘enemy’ not just as barbarians and killers but as criminals, transgressors of established international standards of conduct.[3] This consensus is paramount not only for establishing liability but also for deterring future violations. Finally, the law’s universality creates ‘the expectation of expectation’ that builds and maintains society. The regularity of state behaviour is what consequently creates stability, makes planning possible, enhances security, spreads the cost of enforcement, and regulates conflict.[4]   We must be assiduous in upholding and enforcing these rules. Undermining the value of international law in our RBIO has the dangerous consequence of establishing a world that is too forgiving, one becoming gradually indifferent to gross human rights violations and international conflicts. Otherwise, the direction we are heading will be unimaginably grave: an RBIO driven and enhanced by emotions, military power, inhumanity, and violence without restraint. This is a moment of truth for the integrity of our RBIO.   We therefore have an opportunity and a duty  to reshape our understanding of our relationship to international law, in order to continue to strengthen its frameworks and address its shortcomings. All states have a legal (and moral) duty to address human rights violations and international crimes, to seek accountability, and to serve justice for victims. This duty, however, does not solely rest with the decision makers. The most powerful catalyst to inspire change is one who is able to draw attention to conflicts and violations, and influence and pressure decision makers to act: the everyday civilian. The civilian that can provoke discussion in their community, the civilian that can vote, the civilian that can protest against non-human rights-abiding corporations and controversial government policies, the civilian that can help refugees coming into their country, the civilian that can support the legitimacy of international courts, the civilian that can support institutions and NGOs exposing the violations and can help spread awareness. That civilian is You .    In this spirit, I am pleased to present the forthcoming volume, ‘The Human Agenda’. Through an interdisciplinary lens taking in Law, Politics, and Art, this volume draws upon the insights of leading practitioners, judges, politicians, scholars, and artists. It aims to spread awareness and to deepen our understanding of the root causes of conflict and injustice, while also exploring potential pathways towards lasting peace and reconciliation. It further collects interviews and artwork from heroic survivors of human rights abuses, to share their stories and provide a personal understanding of what is at stake for humanity.    Ignorance is a perilous refuge. By awakening to the realities of our world and assuming our role as conscientious stewards, we can compel decision-makers to honour their obligations under international law, safeguarding the promises of peace forged in the aftermath of World War II.   It is my hope that, in reading this volume, you not only are able to enhance your understanding of the current imminent threats to our RBIO, but also understand your role in it.   We are all responsible for what happens in our world.   Nadia Jahnecke Legal Editor and Founder of ‘The Human Agenda’   Acknowledgements: I wish to express my sincere gratitude to our Editor-in-Chief, Alexander Kardos-Nyheim,  whose   belief in my vision and steadfast support was instrumental in bringing to life CJLPA ’s Special Edition on human rights. A very special recognition is owed to our Managing Editor, Jack Graveney , without whom this volume would not have become a reality if it were not for his endless devotion in helping me manage the team and getting over 100 articles and interviews across the finish line, both online and in print. Thank you to our exceptional Legal Researchers, whose passion and commitment to human rights shine through every page of this volume: Nour Kachi, Shahad Alkamas, Aidan Johnson, Anaëlle Drut-Desombre, Solomon Njombai, Sarthak Gupta, Angelina Spilnyk, Abigail Dore, Eleanor Taylor, Kenan Korn, and Alexandra Marcy Hall . Finally, I want to express my deepest gratitude to all our contributors . Your belief in this mission and your willingness to share invaluable insights, knowledge, and perspectives have made this volume a profound contribution to the discourse on human rights. [1] Gerry Simpson, ‘International Law in Diplomatic History’ in James Crawford and Martti Koskenniemi   (eds), The Cambridge Companion to International Law (CUP 2015) 26. [2] Thomas Franck, Fairness in International Law and Institutions  (Clarendon Press 1995) 99. [3] Vivek Bhatt, ‘A Visible College: Pub lic Engagement with International Law(yers) During the Ukraine Invasion’ ( OpinioJuris , 8 March 2022) < https://opiniojuris.org/2022/03/08/a-visible-college-public-engagement-with-international-lawyers-during-the-ukraine-invasion/ > accessed 10 April 2024. [4]   Isabel Hull, A Scrap of Paper: Breaking and Making International Law During the Great War  (Cornell University Press 2014).

Anabela Alves is a Portuguese lawyer having served as Legal Advisor to Chambers at the ICTY and later as Legal Advisor to the Presidency and Chambers at the ICC. She has also worked extensively on advising, training, and capacity building for various national judiciaries. CJLPA :   Thank you for taking the time to interview with the Cambridge Journal of Law, Politics, and Art  to discuss your incredibly influential law career, ranging from work at the International Criminal Court in its early days, to your time at the OSCE (Organization for Security and Co-operation in Europe) advising on law, justice, and human rights, and with the International Nuremberg Principles Academy, working on capacity-building and training for various judiciaries. That’s just a small snapshot of your extensive CV, which I hope we’ll be able to explore a little bit more deeply.   So, to that end, I’d like to start with your time as a Lawyer with Judges at the International Criminal Tribunal for the Former Yugoslavia (ICTY). How did your time in that setting influence your outlook on the importance of accountability and justice in the case of human rights violations?   Anabela Alves : Thank you very much. Thank you, first of all, for inviting me to this interview. It is a pleasure to join you today. And now I will try to address your questions as honestly as I always do, giving you just a glimpse into what it was like to opt for the different legal career paths and experiences that I had with these international organizations. So, I joined the ICTY in 2000. It was a decision I made prior to completing my LLM that I was doing in London, which focused on international Criminal law and human rights. I had already done an LLB European law honours degree, also in London, and was working part-time on three jobs at university, so it took quite some determination on my part to actually reach The Hague. At the time, I was working as a paralegal at D J Freeman solicitors, and I was also being encouraged to obtain British citizenship to follow a career with the British Foreign Office, while partners at D J Freeman encouraged me to pursue my full qualification to be retained by the law firm. When I submitted my LLM thesis on international legal responsibility for East Timor, the School of Oriental and African Studies awarded me a merit for my research and invited me to pursue a PhD while lecturing part time. However, besides the additional financial burden that this would entail, and other considerations of settling in London longer term, I knew then that I wanted to work for an international justice mechanism. Having made up my mind, and with my passion for human rights and access to justice for all as a driving force, I landed in The Hague. At the ICTY at the time, there were not enough courtrooms available for the many cases and complex legal issues raised in the myriad of motions filed by both parties to the criminal proceedings. As advisor to international judges of the Trial Chamber that decided to raise the judicial workload to a higher level and hear two large criminal cases simultaneously—the Krstić case (Srebrenica genocide) and the Kvočka et al case (a rape camp case of the Prijedor area in Bosnia and Herzegovina)—meant that I, like many of my colleagues, were on legal duty 24/7, 7 days a week. The pressure was high.Among the many duties assigned to me as legal officer was that of sitting every day in the courtroom summarizing witness testimony to be later deliberated by judges and to be included in draft judgment or decisions that we as legal officers had to prepare for chambers. Witnessing firsthand the braveness of countless victims who appeared as witnesses in court gave me the strength I needed to continue doing my job without failing or discouraging. For victims of serious crimes such as genocide, crimes against humanity, and war crimes, having the opportunity to tell their experience to a court of law, and often confronting their perpetrators in a courtroom was liberating. Empowering victim witnesses to tell their story was the only way to find some inner peace, knowing that those who committed the horrendous crimes against their fellow human beings will not go unpunished. One should not undermine the impact serious crimes have on victims and affected communities, and the need for accountability, assurances of non-repetition ad seeing justice being done. Only through restorative justice can one envisage reconciliation among communities and sustainable peace. Unfortunately, not all victims saw just satisfaction, and many victims of the Balkan Wars are still waiting for justice to be done. Equally, the role of victims in the former Yugoslavia was limited to that of witnesses when being called by the prosecutor or by the defence to testify. At the ad hoc tribunals, victims were not entitled to participate in the proceedings, or obtain reparations under the ICTY’s legal framework. And as a consequence, without the proper support of civil society, the majority of countless victims felt that international justice had failed them.   CJLPA : Following from that, after your time at the ICTY you went on to the International Criminal Court, which at that point was in its infancy, and you were responsible for helping to create the foundational procedure and administrative mechanisms that allow the court to function. I’m interested in this victim participation piece as it is an incredibly important and central part of the court’s mission, so how did you and your colleagues face the challenges of substantive victim incorporation? And how effective do you feel that this aspect of the court has been thus far? AA : I was invited to join the first group of lawyers, also called the advance team, at the International Criminal Court. It was an opportunity I had dreamed of all my life: to work for a permanent International Criminal Court, a court for all victims regardless of where serious crimes were committed where justice will be accessible to all. However, despite huge competition to join the permanent ICC, I declined the initial invitation and opted to apply to one of the legal posts with the presidency and chambers. I sat a written test and was interviewed by five international judges, some were former ICTY judges, familiar with my work. It was quite an excitement when I was informed that several of the newly appointed international judges expressed their wish to have me as their legal adviser (or legal officer).   I was then assigned to the presidency to work on all judicial matters of the court, and among many of my legal responsibilities, like drafting the first code of judicial ethics for judges, I had to prepare—in consultation with various stakeholders—draft application forms for victims to participate in the justice process and apply for reparations. It was a huge task, requiring reading through binders of propositions from external actors, as well as countless internal meetings, ensuring all views were considered. The major challenge we encountered at the time was that of making the application forms as accessible and victim friendly as possible. It was not easy avoiding overcomplicating the form with legal provisions. Mind you, we already had received three article 12 (3) declarations from African states accepting the jurisdiction of the court, so the pressure was on. We needed to ensure that vulnerable victims most in need of support and assistance in completing the form were able to access the court.   I was also tasked with preparing a first legal report on the definition of victim protection measures, participation, and reparations—providing guidelines to judges on the type of protective measures, modes of participation, and forms of reparations. Some colleagues later shared with me that they found my advisory report quite useful and refer to my initial research and advice in their subsequent work as experts on victim’s rights. The most important provisions to mention are rule 85 of the rules of procedure and evidence, providing for the definition of victims; article 68, dealing with the protection and participation of victims and witnesses; rules 87 and 88, addressing special measures of protection; and regulation of the court 86, addressing victims’ participation and reparations, including explaining to victims the right to support, legal representation, and assistance.   There was a whole specialized machinery with different offices that needed to be put in place. And at the time I served, the ICC was still busy drafting the various legal texts to put procedures into place, such as drafting the regulations of the court and the regulations of the registry, among others. I played an active role in both working groups drafting these important regulations and the first victims’ forms. I am proud to say the judges and colleagues alike trusted my already extensive experience and expertise in this field. And as a result, I was kept very busy and asked to lead or serve as legal officer focal point for much of the judicial work for which the presidency was responsible, to ensure that chambers were ready to hear the first situations and cases that were being prepared by the Office of the Prosecutor.   Since then, the court has been able to simplify the victims’ application forms and has established reliable specialized offices providing victims and witnesses all the support, protection, and assistance they need. This has empowered victims with meaningful participation through legal representation, respect, and as active subjects of the criminal proceedings.   Please allow me to also mention the important article 79 of the Rome Statute which created the Trust Fund for Victims in 2004 for the benefit of victims and their families. I had the privilege of meeting some of the first members of the Trust Fund for Victims, like Madame Simone Veil and Archbishop Desmond Tutu. The Trust Fund for Victims works with victims, survivors, families, and communities not only by implementing judge’s orders for reparations at the end of the trial when an accused is convicted, but also, most importantly, in helping victims rebuild their lives and communities towards sustainable restitution, compensation, and rehabilitation. For instance, the trust fund for victims has helped thousands of victims in the eastern Democratic Republic of the Congo, Uganda, and Central African Republic by supporting projects providing psychological support and physical rehabilitation to mutilated victims and providing psychological support, physical rehabilitation, and material support to victims of sexual violence. It is very complex, highly sensitive, and exhausting never-ending work. One is constantly improving from lessons learned for the benefit of victims of such horrendous crimes.   CJLPA : I have a couple of follow-ups regarding victim inclusion that we’ll circle back to a little bit later. But we’re talking about these foundational international criminal justice mechanisms, and obviously it’s a field rife with challenges that you’ve mentioned including selective justice, lack of enforcement, resource shortages, and complex geopolitical situations. In your view, which of these problems, or perhaps one I didn’t mention, is the most pressing challenge facing international criminal law today?   AA : To me, it is the commitment of states—not only States Parties, but all states—towards the complementarity system of the International Criminal Court. It is the level of cooperation offered and assured by States Parties who have an obligation to cooperate with other states and who, under the universal jurisdiction principle, have an obligation to cooperate to ensure investigation, prosecution, and adjudication of such serious crimes. These are crimes of concern to the international community, and the international community goes from north, south, east, and west of the globe. Contrary to the criticism that this is ‘Western Justice’, these crimes affect victims everywhere. And the challenge is to secure this political will and cooperation everywhere.   At the same time, out of the 123 States Parties, around 52 have committed funds to the Trust Fund for Victims. There’s a challenge there in ensuring that all States Parties contribute to this trust fund because reparations, compensation, and rehabilitation should be extended to all victims, or as many victims of the serious crimes as possible. It’s also crucial to ensure that there is no second victimization of victims. We now see, and we have seen, victims being interviewed or having to testify multiple times to different players. I experienced that in Kosovo, for instance, where victims of the Kosovo War in 1999 provided their testimony to the NATO forces on the ground first, and afterwards to various NGOs, and then to the United Nations Mission, and later to the European Union Mission, but cases were not going to court. And recently, all the files were reverted back to the domestic court, but still thousands of pages of countless victim testimony have not been yet scanned, even 20 years after the war. So, there are several conflicting situations where state and international organizations compete, instead of cooperating with one another to ensure that victims are at the centre of the whole justice process. Those are my main concerns, and of course the protection of victims beyond the time when they appear as witnesses.   CJLPA : I’m interested in touching more on the point of commitment and cooperation of states. We are in a situation right now where there are something like 42 countries that do not fall under the ICC’s jurisdiction. Amongst those are the United States, China, India, and Russia—all of which are significant geopolitical players. What challenge does their non-participation pose to the idea of the International Criminal Court truly being a court for everyone?   AA : Thank you for that question. Yes, to my mind. The fact that the United States is not yet to party to the Rome Statute along with other countries naturally poses a lot of pressure on this vision of a truly international permanent court. Mind you, the court has the role of being a court of ultimate resort. It’s the responsibility of states to investigate, prosecute, and adjudicate such crimes. It is important to join this court just to reinforce international cooperation. And if all states are truly committed to human rights values—values that are inherent to human nature, not ‘Western’ values—every state has the universal obligation and moral responsibility to adhere to these principles of human rights and justice for all victims, and to eradicate the scourge of war and heinous crimes. The pressure is still ongoing to convince states like the United States, who are actually very proactive in the current situation in Ukraine, that the court is not a threat to their nationals, that the court will only intervene when they fail to live up to their big speeches of justice and human rights everywhere, and to ensure that these crimes do not go unpunished. I remain idealistic, but I’ve always also been realistic. There are some countries that allow powerful commercial and economic considerations to take precedent over the considerations of human rights. And that is a reality that we face everywhere around the world. But I remain optimistic that states will resist the political and economic pressures that are being placed on them.Justice should be equal to all. We are stronger together and must ensure that victims are treated alike, and this is an obligation and a commitment that everyone should face accountability before the law. It is our basic rule of law principles that apply in every corner of the world. I remain confident that part 9 of the Rome Statute dealing with cooperation and judicial assistance will, in the long term, be reinforced. And all states will show their commitment to human rights as they usually like to claim. CJLPA : You mentioned, in that answer, the situation in Ukraine. I think that’s a great example of how some of these questions are coming to a head in real time. How has the Russian invasion of Ukraine changed or shifted the way that you think about international criminal justice?   AA : Yes, I think this question touches on the hotly debated topic of selective justice. And the problem of selective justice, as you rightly pointed out, has reached its height as a result of states and international organizations like the Council of Europe, the European Union, the ICC, and the United Nations response following the invasion of Ukraine by Russia on 24 February 2022. It is a fact that, for the first time in history since the Nuremberg Trials in the aftermath of the Second World War, the international community, including through political discourse, have reached a momentum and a level of cooperation and common response to the invasion and subsequent crimes being committed against Ukrainian people never seen before. Worldwide condemnation of the invasion and the ongoing war and joint initiatives to investigate gather evidence and lend legal, technical, logistic, and financial support to Ukraine and the Ukrainian prosecution office is unprecedented. For the first time since the adoption of the Rome Statute, as you already mentioned, more than 40 States Parties to the International Criminal Court made a joint referral to the prosecutor to investigate and prosecute those most responsible for the crimes committed in Ukraine. Mind you, Ukraine recognized the jurisdiction of the court under article 12(3) on two different occasions.   At the same time, just days following the invasion, the European Court of Human Rights rendered emergency decisions with provisional measures calling on Russia to hold the military attacks against civilians and respect the right to life and other human rights of Ukrainian people. Similar emergency decisions were adopted by the General Assembly and the International Court of Justice, addressing the crime of genocide. One may call it the greatest massive mobilization of international justice since 1945. When we honestly reflect on the various wars and armed conflict, some still ongoing or restarting, you will naturally see a different type of justice. To me, the same justice response should be given to other similar situations and to other victims around the world. One can name Syria, Yemen, Ethiopia, Palestine, Afghanistan, just to name a few. On the latter, the ICC prosecutor announced the de-prioritizing of his investigation of crimes committed against victims of the Bush Administration torture programme in Afghanistan, claiming limited resources. However, we clearly see a different treatment of Ukrainian victims, and how support, including financial support, is or can be unlimited. There are other examples. On the ongoing war in Ukraine, one also saw an international call for a special tribunal to try the crime of aggression. The US, which you already raised as a non-party to the ICC, has been very proactive in calling for such a special court, limiting it to the war in Ukraine. This is a political manoeuvre, if I may put it that way. The crime of aggression cannot be investigated by the ICC in respect of Ukraine due to certain restrictions. Western and other powers, when the Rome Statute was open for revision during the 2010 Kampala negotiations, included a restriction to the crime of aggression definition restricting its jurisdiction.However, for there to be a genuine international justice, treating all victims of serious crimes alike and with the same respect, the said special tribunal legitimized by the UN General Assembly should be a tribunal to deal with the crime of aggression, no matter where it is committed and independent of the perpetrating state. But this proposition begs the question, or more likely the concern, that it would be competing, for instance, with the ICC in terms of jurisdiction. Only equal treatment before the law will put an end to double standards when it comes to international justice and human rights.   On a positive note, the ongoing war against Ukraine may result in the revision of the Rome Statute, ensuring that situations like this, when both domestic and international legal framework prevent a prompt investigation of serious crimes, or that a head of state will be bold enough to violate the sovereignty of another state, do not happen again. Giving more power to the UN General Assembly and to the ICC, the need is to prove that they are treating all the situations equally, and all crimes have equal footing, no restrictions, and setting the path to end impunity for serious crime everywhere. So, the situation of Ukraine, and the consequences the world faces as a whole, as a result of Russian war of aggression in Ukraine, has not changed my mindset in respect of the need for individual and state criminal responsibility.   We’ve heard some say in various writings or interviews that we are in a real life ‘Nuremberg moment’, with universal jurisdiction cases being investigated by an unprecedented number of states to ensure there is no impunity for serious crimes being committed in Ukraine and Syria and other places. And there is a serious moral responsibility to ensure those responsible for serious crimes are brought to justice. While new concepts of international law were introduced for the first time in Nuremberg, and this is why Nuremberg is also referred to as the birthplace of modern international criminal law, there is naturally a need to create the necessary legal framework and process and procedures to legitimize the prosecution of such heinous crimes. In 1945, the whole world demanded that victims of the war of aggression led by Nazi Germany receive justice. The same is true today, as we see a concerted common effort to ensure victims of the ongoing war of aggression led by Russia against Ukraine receive justice. To me, this common effort should be the same for victims everywhere.   CJLPA : I want to dive a little bit deeper into the situation in Ukraine. Obviously, the optimistic point of view of accountability is wonderful, but there is a war happening, and it continues daily. A lot of people, I think, are frustrated with these international mechanisms, and want them to be able to step in and put a stop to the violence. But these mechanisms exist, as you mentioned, to make sure that there is accountability for actions, and hopefully act as a deterrent for future human rights abuses. Do you feel like the international community generally, political actors included, has a clear understanding of the mechanisms, objects, and purpose of these international tribunals? And is that object and purpose made clear to the victims? AA : Unfortunately, to me, the social, political, and academic discourse surrounding the creation of special tribunal for the crime of aggression in respect of Ukraine has already taken a political course. Truth be told, justice, including international justice, depends on the political will, of course, to make available the necessary structures, expertise, and budget required to support the needs for justice. But it is the universal obligation of all states to prevent crimes such as the crime of aggression, genocide, torture, and other serious crimes. Victims everywhere see that this is the first time that an invasion of the territorial sovereignty of a state become the object of such a judicial and political response since Nuremberg. This being said, once the legal framework budget, and multidisciplinary specialized teams and structures are in place, I can only trust that the appointment, for instance, of judges to adjudicate such serious crimes will be done to the highest standard, ensuring that victims will see justice being done. Only by rebuilding the trust of victims will we actually be able to say with full honesty that justice is equal for all, and victims are left with the sense that justice is being done.   Just to give you an idea, when I was in Kosovo it was interesting and frustrating to speak to any local and hear them say that our trust in the justice system was an illusion. For the past almost two years, I served as the senior officer for training and capacity building of legal professionals, magistrates, and judges on international criminal law and human rights, disseminating the Nuremberg principles. One of the projects that I had the honor to lead for the Nuremberg Academy, in cooperation with the French ministries and the Siracusa Institute, was a project called Ethica, towards a Common Code of Ethics for International Criminal Judges.This common code of judicial ethics emerged out of necessity, and the pressure and expectations of victims placed by the international community on judges. The expectation is that judges abide by principles of independence, impartiality, dignity, and integrity, demonstrating the highest standards of judicial ethics. The slightest appearance of lack of independence or interference by political bodies could jeopardize criminal proceedings. I am confident that the ethical principles for international criminal justice judges, for instance, will guide judges in performing their judicial duties without any conflict of interest. And that, alongside the new due diligence process introduced by the Assembly of States Parties to the selection of judges for the International Criminal Court, that will provide the necessary guarantees of judicial independence and build trust of victims in this International Criminal Court and in their own domestic justice system that is being developed and improved. This is why we at the Nuremberg Academy were training judges, prosecutors, and police from different parts of the world to ensure that all victims will have access to justice and the rule of law.   CJLPA : Before we leave the conversation on Russia, Ukraine, and aggression victims, you mentioned earlier the updates and progress that have been made in terms of victim inclusion at the ICC. That has been in response to an ever-increasing number of victims participating in each subsequent case at the ICC. While not applicable in the case of Ukraine, theoretically a crime of aggression case could be brought forward at the ICC, which is untested territory in terms of victim participation. Do you feel that the court is keeping up adequately with the increased demands on the victim participation unit, and do you feel that the court would be able to deal with the demands in the case of a crime of aggression trial?   AA : We need to refer to rule 85(a) of the ICC Rules of Procedure and Evidence, that allows the chamber to determine if a victim will be awarded victim status and the right to participate in criminal proceedings and determine their mode of participation and in what stage of the proceedings—whether the trial, or appeals—they will be able to participate. If we look at the Lubanga case, this case set a four-pronged test for victims to participate in proceedings. In the past years since the court has been in operation, judges have had the opportunity to address various complex issues, such as the right of deceased victims to be, for instance, represented in court. As I mentioned before, the right to participate and the mode of participation will be determined by the judges gathering from the jurisprudence emerging from the situation. Judges have differentiated between victims of situations and victims of a case. In other words, victim status in a case will be granted within the context of the specific incidents that form part of an arrest warrant and the specific charges therein. So pursuant to Article 86(3), the views and concerns of large numbers of victims, as in the case of the crime of aggression, will be presented through legal representatives of victims, where the court considers it appropriate. These are very complex cases. And this is one of the reasons why investigations of criminal proceedings take so long.So , in terms of crime of aggression, with countless numbers of victims, it will be for the judges to decide how, and the number, and maybe assigning different legal representatives to very large numbers of victims represented by geographic region, for example. It will be a very complex assessment for chambers to do and for the victim representation unit of the court also to submit opinions on how to best ensure that no victim is left behind.   CJLPA : I think the distinction between victims of a situation and victims of a crime is an interesting and important distinction here and one that I have not seen discussed very often relating to these issues. If I can pivot, you mentioned training and capacity building. Thinking back to your time in Kosovo working with victims of sexual and gender-based violence, can you tell us a little bit more about that time and how that has influenced your work and views on all we’ve discussed so far? AA : When I served the OSCE mission in Kosovo for over four years, until the pandemic brought the world to a halt, my main responsibilities were to raise the bar in terms of international fair trial and human rights standards and improve access to justice for vulnerable victims such as women, children, the elderly, and people with disabilities, who are often abused and have no chance to even report what is happening to them as sometimes those providing care are themselves perpetrators. Throughout my tenure with the OSCE, I lead a unique Kosovo-wide advocacy campaign and training of judges involving victims of sexual and gender-based violence, improving access to justice for victims. I also lead innovative training of judges, prosecutors, and the police along with civil society victims’ advocates on international human rights standards, protection of women and children, shedding light on sexual violence against children, and improving the right of victims of serious crimes to compensation. At the end of my tenure, I had managed to convince the then Minister of Justice and other relevant stakeholders to review two laws: the law on protection of women and children and the law on Crime Victims Compensation, making them victim centred. Besides being nominated by the head of mission to the Kosovo assembly working group drafting a new law protecting women and children, I was also pleased to see all of my recommendations for amendments incorporated into the law. Judges, prosecutors, the police, and even directors of detention centres for juveniles thanked me and called on me to deliver a last training on implementation of a new law that was coming into force regarding protection of children. I was giving them techniques to interview vulnerable victims, so that judges and prosecutors, the police victims advocates, and NGOs were certified to work with victims of serious crimes, raising standards that lead judges to be able to interview victims. So, it’s very important work, work that unfortunately I had to interrupt. But it has left a mark.   CJLPA : That is fantastic work, and I must say that I appreciate how in this conversation and in your work generally, the centrality of victims in the international criminal justice system is ever-present. AA : Of course all this work needs to take into consideration the cultural and social ethnic diversity of the whole communities that we are working with, but it is equally important to have a genuine interest in ensuring that victims have access to justice. I often faced opposition from hardliner judges or even police or prosecutors, who due to their cultural or religious background, would tell me that ‘we do not have such cases, because we do not commit such crimes; it is against our religion or culture’. And then, when I touched on these taboo cases, building the cooperation and trust with different institutions—and exposing these situations was paramount to ensure that these victims had a voice finally—by bringing these different justice actors together and giving them the tools to do the work, we ensure that we will put an end to impunity and that such serious crimes should not go unpunished ever.   CJLPA : We’ve covered a lot in this interview, but on a final note: We’ve talked about all of these different mechanisms and tools of international criminal law aimed at ending impunity. I’m wondering if there is anything that we haven’t discussed that we could do to strengthen these mechanisms and ensure justice for victims?   AA : One thing that is very personal to me because of my contact with various victims of sexual and gender-based violence, not only in the former Yugoslavia, but also when I organized training on gender-based crimes for judges at the International Criminal Court: You need to build your capacity, and take certain types of cases, like those of sexual and gender-based violence, with the serious attitude that they merit. So, to me, the best form of justice is, of course, prevention and guarantees of non-repetition. Sexual and gender-based violence, especially when committed on a large scale, as we often see in armed conflict, has severe consequences for the life of the victims, their families, communities, but also for the future generations. So, until these serious crimes merit the attention of prosecutors and courts everywhere—when I say courts I also mean through heavier sentences in respect of this serious crime—and victims of such crimes are given the empowerment they need to heal, we’ll never be able to move forward. Sexual and gender-based violence being taken seriously by judges and prosecutors with adequate remedy for victims is the only way the system of justice can evolve. Just one simple reality is the fact that, although the great majority of victims of sexual and gender-based violence are women and children, less than 13% of the witnesses who testify before international criminal tribunals are women. A lot more needs to be done to give the right level of investigation, prosecution, and adjudication to these types of cases.   Another issue that I would raise as we close is the need for the ICC to implement the recommendations of the Independent Expert Report of September 2020, and to monitor and ensure that the recommendations are implemented by the end of 2023. As per such recommendations, the ICC must create a system of accountability to deal with internal abuse and ensure an environment that attracts the best talent combined with high standards of professional integrity and ethics, including during the nomination and appointment of judges. Emphasis should also be placed on the impact selective justice, selection of situations and cases, and their conclusion, has on victims, communities and society, the need to change paradigms of stigma that is usually placed on victims of sexual and gender-based violence as opposed to perpetrators, ensuring this crime usually committed on large scale is not trivialized, since lack of deterrence stems from the fact that often this crime goes unpunished, and the need to improve ongoing protection and support to victim-witnesses long after they testify. We will see whether the reforms are implemented, not only in the treatment of victims, but in the impact of selective justice and sustainable cooperation with the court. Ensuring that also those who hold the highest judicial offices truly abide by the highest standards of professional integrity and ethics, ensuring that these legal environments are also free from intimidation or preferential treatment. Basically, upholding the highest standards of independence, impartiality, dignity, integrity, and propriety, ensuring a system of justice for everyone involved, and ultimately, the victims. This interview was conducted by Aidan Johnson. Aidan holds a Master’s degree in international human rights law from the Irish Centre for Human Rights. In addition to his role at CJLPA, Aidan also works on refugee resettlement and advocacy in the US.

The three broad categories of the title express overlapping perspectives of human difference. Read together they comprise the topic of Human Rights which is the focus of this volume. It exemplifies Lady Arden’s appreciation that The Cambridge Journal of Law, Politics, and Art is likely to expand our horizons by bringing together subjects which often sit in splendid isolation from each other. The premature loss of Michael Taggart leaves to others his insight that Norman Birkett’s judgment in the case of the slave’s grandson and peer Leary Constantine against Imperial Hotels in 1944[1] for not accommodating him because of his colour,[2] could and should have evolved into an overarching human rights principle of entitlement to equal treatment. The point was taken up by Lord Bingham in A(FC) v Secretary of State for the Home Department  (2004),[3] where he held disproportionate and unlawful the detention of non-UK suspected terrorists, when UK terrorist suspects were exempt from such arrest. In the first Oxford Essays in Jurisprudence ,   Professor Donald Harris QC (Hon) endorsed the opinions of Jeremy Bentham and Herbert (HLA) Hart that there is no concept of law beyond what is humanly created, to which in a New Zealand Privy Council appeal Lord Hoffmann added Kant’s similar conclusion: there is no law an sich . Harris responded to my initial Oxford tutorial essay about a political philosopher, reproducing what had been written about him by others, with the real point—‘yes, but what do you  think?’ That for me gave Law’s answer to its own question of source, which in physics is ‘where does the universe come from?’—namely, by simply creating it. In numerous contexts,[4] the Court’s law-making role is described as ‘incremental’, which mathematicians define as ‘denoting a small positive or negative change’. But while using that term, dissenting, in JD (FC) v East Berkshire Community Health NHS Trust ,[5] the next year in, Barclays Bank , Lord Bingham wrote: I incline to agree with the view…that the incremental test is of little value as a test in itself, and is only helpful when used in combination with a test of principle which identifies the legally significant feature of a situation.[6] In the same case Lord Mance, reviewing prior authority, considered: ‘Incrementalism’ was…viewed as a corollary of the rejection, now uncontroversial, of any generalised liability for negligently caused economic loss, rather than as necessarily inconsistent with the development of novel categories of negligence. Having said that, caution and analogical reasoning are generally valuable accompaniments to judicial activity, and that is particularly to in the present area. Lord Mance’s ‘caution’, read with Lord Bingham’s rejection of ‘incremental’ as a definitive limit to judicial law-making, recalls Chief Justice Corstens’ criteria, using French in his final speech in The Netherlands: ‘la prudence et l’audace’. The Corstens / Bingham / Mance policy, of adopting an approach sensitive and appropriate to context, promotes optimum law, with legislative and judicial contributions forming a seamless whole, the judges discharging their duty to ‘do right’ by developing the common law ‘after the laws and usages of the realm’, especially when those are evidenced by recent legislation. Anthea Roberts’ best-seller Is International Law International? ,   sees the Australian scholar, experienced also in England and the USA, describe the range of senses in which ‘international law’ is employed; as is sharply evidenced by the law of England, which in some spheres regards international law as binding, in others as optional.[7] In Keyu v Secretary of State for Foreign and Commonwealth Affairs , Lord Mance wrote: Speaking generally, in my opinion, the presumption when considering any such policy issue is that [Customary International Law], once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration.[8] He later added: The role of domestic courts in developing (or…even establishing) a rule of customary international law should not be undervalued. [T]he intermeshing of domestic and international law issues and law has been increasingly evident in recent years…The underlying thinking is that domestic courts have a certain competence and role in identifying, developing and expressing principles of customary international law. [9] In summary, Law concerns the rules needed to manage human difference; Politics their creation and change; and Art connotes the cultures that contribute to and illuminate each. The categories are not discrete. The first category—decent Law—reflects the elements of the judges’ treble undertaking under the Promissory Oaths Act 1868: [1] I will do right to all manner of people; [2] after the laws and usages of this realm; [3] without fear or favour, affection or ill will. In the United Kingdom, as to the second category—Politics including rule-making—Parliament has and executes plenary authority. Yet the judges’ role of making, applying, and where necessary updating the common law is a major feature. Its functions include the assertion of Parliament’s role, and adjudication of disputes in accordance with the values of the rule of law. These include principles of international law which in practice largely requires enforcement by the domestic laws of individual states. Fundamental to both first and second categories is the third—the Art of understanding the evolving cultures of society, which is also essential to political success. This special edition of the Journal  addresses current profoundly troubling situations of human difference, each engaging Law, Politics, and relevant Art. Overarching all of them is the crucial need to achieve Reconciliation of difference, the capital denoting its importance. Each of the situations discussed entails competing claims for inconsistent rights, which may be procedural or substantive. Lord Mansfield’s celebrated procedural conclusion in Somerset v Stewart  (1772),[10] that alien status was no bar to habeas corpus for a slave held in custody on the Thames, was endorsed by the US Supreme Court in the Guantanamo Bay case Boumediene v Bush .[11]   There has been procedural delay of international Law and Politics since the end of WWI in finding Art to protect former Palestinian residents of the Ottoman Empire   There is then the substantive inability of the law to date to respond to aggression—allegedly committed in Ukraine by the then chair of the Security Council—which, though in Nuremberg singled out for response, awaits answer.   That our generation has been slow to respond to the ultimate challenge of global warming is of a piece with the appalling human rights statistics, including 108.4 million people around the world who are forcibly displaced; failures since 1937 to implement the Terrorism Report for the League of Nations, and more generally to grip the death toll in international migration; the disgrace of modern slavery; the division in the General Assembly between North (or West) and South; and the continued abuse of civil rights of women and children.   The tragedies of Ukraine, Israel, and Palestine recall, in the case of the Russian Federation, its obligations, as Permanent Member and in February 2002 Chair of the Security Council with primary responsibility under Article 24 of the UN Charter, to use Chapter VII powers to enforce Article 2’s prohibition of the use of force against any state; in the case of Israel the country readings from whose Old Testament inspire decency throughout the world; and, in the case of Palestine, the Prophet whose advocacy of non-violent means to resolve disputes exemplified the rule of law. The Swiss theologian Hans Küng’s writings on the close relationships among the three monotheistic religions point to the Art of Reconciliation among them. Each society, and the other members of the world community, well know that the promotion of peace by human creativity and achievement is essential to answering the greatest challenges their peoples face.   That is the context of the following essays identifying urgent problems of Human Rights, and potential responses by Law, Politics, and Art, which contribute to the classic University function as critic and conscience of society. Sir David William Baragwanath KNZM KC Sir David William Baragwanath KNZM KC is a retired New Zealand judge. He was a member of the Appeals Chamber of the Special Tribunal for Lebanon at the Hague, serving for a term as President. [1] [1944] KB 693. [2] In New Zealand, a deserved response to description by a pompous speaker as being among ‘coloured brethren’ was ‘I reply to my colourless brother’. [3] [2004] UKHL 56, [2005] 2 AC 68. [4] As by Lord Steyn in his much-cited opinion in Marc Rich & Co. A.G.   v Bishop Rock Marine Co. Ltd [1996] AC 211, 234 B-C. [5] [2005] UKHL 23, [2005] 2 AC 273 para 50. [6]  Her Majesty’s Commissioner of Customs and Excise v Barclays Bank plc [2006] UKHL 28, [2007] 1 AC 181. [7] Anthea Roberts, Is International Law International?  (OUP 2017). [8] [2015] UKSC 69, [2016] 1355. [9]  Al-Waheed v Ministry of Defence [2017] UKSC 2, [2017] AC 821 . [10] Lofft 1. [11] 553 US 723 (2008).

Rami Jarrah is a Syrian political activist who played a major role in exposing the Syrian regime’s war crimes during the 2011 Syrian Revolution. During a time when international journalists were not allowed in Syria, Rami operated under the alias of ‘Alexander Page’, where he would document the war crimes committed by the Syrian government and share them on social media and to news outlets around the world. His bravery and fearlessness played a major role in exposing the truth on the ground, leading to him being awarded an International Press Freedom Award in 2012 from the Canadian Journalists for Free Expression. CJLPA : Welcome, Mr Rami Jarrah. I’d like to begin by thanking you for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art  to discuss your story as a political activist and a human rights defender. I want to start with your life prior to your birth, by looking at the life of your parents. Your father , Nouri al-Jarrah, was a longtime Syrian dissident to the Baath party. On the other hand, your mother Lena Tibi was a member of the Syrian National Council, working as a representative of the opposition movement against the Syrian government. Your parents were eventually exiled out of Syria and they lived in Lebanon, maybe around the late 1970s. Can you please tell me about  the events that led to them being exiled from Syria?   Rami Jarrah : For my mum, it’s much more straightforward. She actually grew up in Lebanon. She was a poet and my dad was  also a poet . T he sort of activities they were involved in were  not exactly liked by the Syrian regime or the political elite. My  dad, who grew up in Syria, was  a part of the Communist Party, which during  that time was headed by Khalid Bakdash. What happened at the time was that Hafez al- Assad declared unification , which was basically bringing all the political parties together , and o ne of the parties that joined the unification was the Communist Party . P eople like my dad and I think many figures of the Syrian opposition considered that move to be a political game that Khalid Bakdhash himself signed up for. So they defected from the party . I don’t think it was really a very public defection, but it was really just: ‘okay, this party doesn’t represent us’. My dad left the party , I  think you’re correct in saying towards the  end of the 70s, or maybe just the beginning of the 80s, and he went to Lebanon.   I actually heard the story from my grandma the first time I ever went to Syria . When  I sat with her, she had not seen my dad in like 25-30 years. She said: ‘h e told me he was going to buy parsley and she hasn’t seen him since ’.  He didn’t want her to worry, but he basically left because anyone who opposed  that unification was basically in trouble in Syria, anyone that would write their opinion on what was going on , like the  massacres that took place in all of Syria, but mainly in Homs. There were people in the Communist party;  although it is painted as this attack by the dictatorship in Syria or by a fundamentalist Islamic community, which to some extent can be justified or not the attack itself .   It was, to some extent,  explained as  an Islamic movement, but at the time, it was supported by people in the Communist Party, because it was in opposition to a dictatorship. That’s  th e one thing they had in common at the time , the Communist Party and people in the Muslim Brotherhood and whatnot. E ven  in 2011, you had people who were secularists, people who have religio n.   I t’s something that they all have in common recently, as well ; that they all oppose the government. That might not seem like a good enough reason for people with totally  different opinions or totally different backgrounds to come together. For someone who lives in Syria, I understand why that was a good enough reason. My parents before they went into adulthood had no longer any relation or connection to Syria  and they ended up living in Lebanon , t hen during the Lebanese civil war moving to Cyprus.   CJLPA : I want to fast forward now to the times of Hafez al-Assad, before the 2000s. Hafez al- Assad’s era is not really documented. There was a complete media blackout in Syria and state propaganda was very strong at the time. How would you describe Hafez al- Assad’s rule to people  who are not aware?   RJ : One thing that was distinctive from the rule of his son, Bashar al- Assad, is that Hafez al- Assad had created a system in which he was in direct contact with every critical facility or organisation in Syria. For example, in the Palestinian branch the head of the branch would be in direct contact with Hafez al-Assad. He had direct contact with some of these institutions or organisations.   F or example , this is hearsay, a street cleaning company, the head of that organisation will be in direct contact with Hafez al-Assad. The head of the electricity department in Damascus would be in direct contact with Hafez  al-Assad. The train institution and department will  be in direct contact with Hafez al-Assad.   That was a strategy to make sure that he could, at any given moment, control any aspect of Syrian society. Let’s say the protests broke out in an area, he could with one phone call turn off all the electricity there. Most of the government felt threatened by the fact that Hafez al-Assad had all these direct communication s.   I t meant that someone could be sitting at a table with a group of people and if they were in direct contact with Hafez al-Assad and they tried to bait something by saying something bad about Hafez al-Assad, and then got feedback from everyone there and then someone joined them and said something negative about Hafez al-Assad, that information would be in the hands of Hafez al-Assad within a few minutes. If you try and imagine that system, and then project that sort of government on the people , i t would be  a surveillance state, to the furthest extent you can imagine. I think there was some exaggeration on just how big the intelligence services were, such that the government depended much more on the fear factor of people thinking that they were being monitored, more than they actually were being monitored. When I was in Syria in  2004, I used to get this impression that my uncle’s would keep their voices down when they said:   ‘ Hafez’. We were sitting in their house, behind closed doors, there would be no way for anyone to hear anything. There was always that saying in Syria that there were ‘ears in the walls’, a fear factor where people think they’re being listened to. The Syrian regime depends and depended very highly on that aspect to rule the government.   CJLPA : After the death of Hafez al- Assad, there was some turmoil in Syria around that time and different parties were starting to rise up. We all knew Bashar al-Assad was going to take power, but he did advertise himself as a reformist who was going to bring change in the political  system. What were the promises that he made and how was it different from Hafez’s government?   RJ : When it comes to Bashar al- Assad, maybe the only reason he controlled the country was that computers really spread throughout Syria. One of the laws that he passed was that there was no custom on computers. There were a series of such initiatives. That project was called ‘a computer in every house’, and  he wanted matters to advance in that sense. That’s the sort of thing that anyone  who opposes Assad doesn’t want to say, because it feeds into their propaganda. But look at Iran today . T hey have advanced  IT literacy, are very  interested in advancing themselves, and that doesn’t necessarily mean that the result will be a more open democratic country. So I see it from that perspective, but I do think that there were signs of an objective  to open up society and change that reality that I just mentioned , of Syrians not really knowing what the hell was going on outside the country.   It was done in the sense of  ‘this is what you’re allowed to do. Keep away from everything else’. I think there  was a very clear intention to open up Syria, but under certain terms . I would compare this to what we’re seeing in Saudi Arabia right now , w here you have very impressive and inspiring human rights activists and women that are  going out and saying: ‘I want to drive’ and whatnot. It wasn’t tolerated by the government even though it was agreed. Mohammed bin Salman himself wants to open up the country, wants women to drive, wants women to take off their hijab, wants a more open society but he wants it under his terms . I think that was very clear in Syria; that there was a movement in what could be considered the right direction, but not for the correct reasons. The saying is ‘Kalemat Haq Biha Batel’ [loosely, ‘a true word contains falsehood’]. I think that applies to so much in Syria .   W hen the government says things like: ‘you know, we’re protecting the Christian society in Syria’. Having that’s a good thing, you protect minorities, but you’re doing it for the wrong reasons and with the wrong intentions.   CJLPA :   When you first arrived in Syria , you were interrogated and then you were put on a travel ban for three years. Can you tell  me your experiences dealing with the Syrian authorities? How did it feel to be under  surveillance for three years  and  what type of interrogation methods were used by officials?   RJ : I mentioned to you earlier that I was ‘Maktoom al-Nasab ’. So my civil registration was the main reason. I had a Syrian passport, but my Syrian passport was provided to me by the Embassy in London. This is what we assumed later on .   We assumed that when information from the Embassy was sent to Syria to put me down in the civil register, they looked and said: ‘Oh, but his parents are not married’. So they couldn’t register me. It was probably just thrown in the drawer and never dealt with. So when I came to Syria, I was accused of that passport being forged. That was the main reason why I was stopped. But as a result of being stopped, I was interrogated. Obviously the first things that were touched upon were my parents, their history, and mainly my father’s opposition to the Syrian regime : w hat he was doing , where he was, and what influence he had over me. They wanted to know what my thoughts were. I was presented with all sorts of accusations. In just one sitting, I was part of the Muslim Brotherhood, I was a communist, I was coming to Syria just because I wanted to cause some trouble , I was coming because I was working for the British government. There were  so many accusations in just a short first interrogation that was done in the airport and then I was asked to follow up.   They let me go the same day, but I was asked to follow up with the Civil Registry. It was part  of the courts. I ended up basically being under a travel ban. Unable to  have Syrian  citizenship, because it was considered void. I didn’t have any other citizenship. I grew up in London, I had an Indefinite Leave to enter the United Kingdom. I had a permanent residency in the UK, which I would end up losing, because I had been outside England for  more than two years. That was because I was stuck in Syria. It was just horrible . It was horrible . I was coming for a visit , s uddenly, this was where I was going to be from now on, without any clear sign of when this was going to end. I was basically going from  intelligence branch to intelligence branch. I went to the Omega branch; I went to 353; there was one in Barze , I don’t remember what it was called; there were some places where it was a police station and there was an office nearby where there was a  Mukhabarat (intelligence) office there. So each time I would go  I would  basically sit down and answer the same questions. It was almost routine . I t didn’t really seem like any information was needed. They did have information that was to some extent surprising. I ended up finding out that actually we had a family member, one of my auntie’s husbands, who was collaborating with Syrian intelligence, providing them information about us. Once someone in the Syrian intelligence showed me a document that was signed by my auntie’s husband, which was basically a report on the family. I spent the next three years under interrogation .   CJLPA :   You got arrested  while you were recording inside a mosque in Damascus with hundreds of people , spending t hree days in prison . Can you please describe the environment in Syrian prisons, prisons like Sednaya prison and Tudmor (Palmyra) prison, having seen and met people that have experienced Syrian prisons on a long term basis ? And   c an you touch on the torture mechanisms used by the Syrian government?   RJ : Let me start with my experience quickly, briefly. When I was arrested, we were thrown. I mean, there was someone, a tourist , poor guy from  Chile, who was inside the mosque, and saw  everyone saying: ‘freedom, freedom’. He didn’t know what they were saying. He just started talking  with them, he was just a tourist. He got arrested. He was beaten with batons in the intelligence branch. He was electrocuted between his legs. He was filmed saying that he was a terrorist, an Islamic terrorist. He wasn’t even Muslim. There was a photographer, a friend  of mine now named  Mohammad Radwan, an Egyptian photographer, who was in the mosque that day. He  was an American citizen. He was arrested. He was filmed, made to say that he was paid by the CIA to take pictures. He did that  and  it was aired on Syrian state TV. Then the Egyptian government asked the Syrian government to release him. He was then released. The moment he arrived in Egypt, he went on TV and said that  it was all a lie and that he was forced to say all of that. So these were the people I was arrested with .   T here were  a lot of people and we were all  dragged across the floors of the mosque. Someone would be dragging you and handing you over to someone else. It was a long trip to get out  of the mosque. During that whole process, we would be kicked, stomped on, hit with batons, and then we were thrown on  this bus. I was at the very front of my bus with my head just under the gearbox. It was like this long gearbox in this large Mitsubishi bus, the bus would fit around 30 people. I think they managed to fit around  70 or 80 people on that bus. But I was at the very front with my head just under the driver and the driver looking down at me and I was looking up at him. There was someone at the very end of the bus shouting, saying : ‘We’re doing this for you as well. We’re speaking out for you as well’. He got the beating of his life, just for saying anything. When we were on the bus, they put something on our heads, at least on my head. It took around 10 minutes for us to arrive where we were going. I would later find out it was an intelligence  branch that was just next to Umayyad  Square . I  don’t remember the exact name but I was taken to a branch there. I found out later when I was released because I had my head covered and I was taken down spiral steps, being kicked the whole time.   I was taken into this room in which I spent most  of the next three days . I was occasionally taken out into another room, there was a computer and I was interrogated. I was interrogated three times during that whole ordeal. In those interrogations I spent about an hour to two hours, the rest of the time I was in this, you could call it torture room. I was supposed to stand up, I wasn’t allowed to sit down at all. That might not sound very serious  b ut once you stay up for around six, seven, eight hours, you start to realise what that entails. I found a way of keeping myself up by putting my knees together in an  Eiffel Tower pose  b ut by also leaning on the wall . W hen I would lean on the wall , I would be beaten by the people standing just in front of the door outside. I had  a strange solution of water that was thrown on me. I wasn’t  allowed to drink or eat anything. I tried a drink  that ended up having some sort of bleach in it . I t was some sort of practical joke. I was pissed on . Psychological torture was very extreme to the sense that I thought that I had family members of mine that were being raped. This is what I was told.   T he very first few days after being released, I don’t even remember what I thought about it. Later, it would become easy to cope with. I want to be totally fair: I didn’t feel like I had any sort of PTSD or trauma from it. As time went by and as I was involved in more explicit political opposition activity, I could see how, in some cases, I was very vengeful. How I had to be very careful to discipline myself, especially when I was in similar situations where intelligence officers had been caught by the Free Syrian Army . I would come there and actually see these intelligence officers, and I couldn’t help but see the faces of those who tortured me. I couldn’t help but consider  the idea of showing them what it felt like. It was very easy for me to understand why there were people who took up weapons, why there were even people who became very fundamentally religious, and appeared  in a way that I disagreed with, but I could understand how it reached that stage. So, that was my experience .   Y ou have spoken to people like Mansour al-Omari, who has  been subjected to all sorts of things. I don’t think it is  really understood or really apparent,  what is going on in  Syrian prisons like Sednaya . Y ou have people like Sean McAllister, a journalist, who I think was working with Channel Four, went to Syria, he was taken into a political branch, taken downstairs , saw all the tools that were being used to torture people. When he went out, it was as if he gave up his career .   H e went out to say what was going on in Syria . H e totally broke the neutral responsibility or objective responsibility of journalists, because he saw how crazy it was, that something like this was happening in the 21st century. This was something you saw in Nazi Germany. There were all sorts of things. Sitting someone on a very big ice cube in a room that had radiators all around you. We have some people in the  ‘Dulab’ (wheel), where someone puts  you inside a large tire, and that is basically  just beaten by two. They tie someone down .   T hey just keep smacking their feet on the bottom, until their feet are just this big. Not allowing people to go to the toilet .   A ll sorts of things.   I think it’s been documented on the human rights level, but I don’t think it has really surfaced to general knowledge where people know that this is happening in the 21st century .   T here’s a lot of information out there about what happened during the Holocaust and the sort of torture that was used , t he killing tactics that we re used then.  Most  of this has been filmed .   Y ou have video footage out there that  shows the stuff happening. There is video footage in intelligence branches of people on the wall with someone with a knife behind them just, casually stabbing them in different places. These people have done this so many times that they know if they stab them in this location they’re not going to die quickly, they’re going to die very slowly. Raping someone’s husband in front of his wife or someone’s wife in front of their husband. These are all sorts of things that went on. In Sednaya and Tudmor, it was much more organised,  b ut definitely also takes place in intelligence branches across the country. I’ve heard the craziest stories from people.   It’s a different subject, but it made me understand why people were doing such crazy stuff. In a society like the United States, or in the UK, if just 1% of something like this happened  to someone, everyone would justify them going out and blowing themselves up for no reason. Just no reason. But in Syria, it’s very unfortunate that people have to basically be slapped on one cheek and give the other cheek and just keep doing that. I think it’s one of the worst places on Earth, if not the worst place on earth, in terms of torture.   CJLPA :   They have this common playbook that they use in terms of invoking fear. After you went out of jail, you started this online alias by the name of Alexander Page, and there were major channels around the world citing things that you were posting. I wanted to touch on something you’ve talked about before: the importance of civilian journalists in a conflict like Syria, where state media usually controls everything leaving the country, everything recorded. Civilian journalists are credible, to some degree, but in a conflict specifically like Syria, can you explain the importance of having civilian journalists?   RJ : Civilian journalists are, in the short term in a conflict, or during protests, or during widespread government crackdown, absolutely necessary. What you had on one hand was the Syrian state with one  message, one line of what was going on, and it was the only thing that was allowed to be reported. You had state media and all that corresponding media around them. Then there is objective journalism like  that of Hala Gorani   or Arwa  Damon.   I mean, Arwa Damon went on to do amazing work, but in the very beginning stages, when you have ‘objective’, ‘balanced’ media, just neutral media, contending with that Syrian state media, it doesn’t do much  b ecause it also gives a voice to the state, which the state does not deserve to have. For example, I mean, right now, if you try to write a ‘balanced’ article about the period of Nazi Germany and Hitler, I don’t think that’s going to be published anywhere, in the sense that you cannot give, throughout that article or that video, the same number of characters to what Hitler wants to say, and to what his victims want to say. It’s just not accepted. The media landscape is driven by our morals, what is deemed acceptable and what is not acceptable. If you’re writing a story about paedophiles , it’s not going to work if you give the perspective of the paedophile just  as much attention as you give the perspective of the baby, it just doesn’t  work that way. When objective media tried to cover what was going on, it wasn’t enough. What we needed was politically driven civil journalism, that wasn’t necessarily ‘balanced’. The aim was not to be objective. The aim was to shed light and say :   ‘H aha, I filmed that. We’re showing you this’ . I think that was very useful in being a slap on the wrist or in the face to the Syrian regime and saying : ‘ No, you’re lying. It’s not true’. This is what’s actually going on. It’s basically wasting no time.   W hat was amazing about this in Syria was that there were  so many people that were willing to do this and it came at a stage where mobiles and mobile cameras  were  in the technological phase of mobiles becoming very good, just before the iPhone. Everyone wanted to film. That  helped a lot and it was  essential in being enough material for the whole world to realise what was going on in Syria. I think Syria was the first experiment of really widespread use of social media and technology to show the world what was going on. Initially, Al Jazeera  did not want to cover what was going on in Syria. Al Jazeera made a very clear political decision. Obviously, Qatar made the decision that it was not going to report on the protests in Syria. The fact that we were able to film ourselves, upload ourselves, show everyone what was going on ourselves, was basically corner ing t hese media networks by saying: ‘O kay, you can’t not  cover this .   Y ou’re going to cover this’. It took Al Jazeera , I think, three weeks to make the decision of coverage. But we had already published so much. It was already all over social media. The footage that I uploaded was broadcasted on most channels. Without civilian  journalism we wouldn’t be here . Even after all that has happened in Syria, anyone  who knew what life was before, during, and after would sa y:   ‘ I don’t think they would have any regrets’. We wouldn’t be here  i f it wasn’t for civil journalists. No one would know what was going on in Syria, in my opinion.   CJLPA : I want to touch on the  issue of state propaganda. If we just go back to 1982, when Hafez and Rifaat al-Assad ordered the Hama massacre, it was a complete  media blackout, and their justification of it was the elimination of the Muslim Brotherhood. Fast forward to 2015 , when Aleppo was being bombed by Russian jets. It’s the same playbook , wher e Bashar al-Assad claimed to be  trying to eliminate ISIS strongholds or Jabhat al Nusra strongholds . Y ou made a video about this, where  you went to Aleppo a nd asked the people in Aleppo :   ‘ is there ISIS here? Does anyone support ISIS here’? I just wanted to ask you to touch on the power of state propaganda and it uses religious extremism as a way to make the state look like the good guys or at least the ‘best option’.   RJ :   Definitely a very clear playbook that’s been used. That’s obvious to any Syrian, to be honest, but not so obvious to the rest of the global community. Especially, when you have  Evangelicals in  the United States, who hear stories of Christians being persecuted in  Syria and how this revolution is supposedly ISIS coming out to destroy and wipe out the  Christian minority in Syria. Very similar to  h ow Christians feel about the Israeli–Palestinian conflict and how Israel  has taken advantage of Christian Evangelicals and their emotions. The Syrian regime took  advantage of that. A major player is B ou thaina Shaaban, who was the information minister, and she played a sizeable role in that propaganda. Then there Is Bashar Ja fri ,   who was the Syrian Ambassador to the United  Nation s:   h is two daughters were very active on Twitter on fake aliases. We found this out, because of people that were working online to expose these people.   T here was a team of people in this very small inner circle of the Syrian regime whose attention was occupied with the propaganda machine. It was people at the very top that were working on these things, and I was very sure, completely sure, that people like Bashar al-Assad and Asmaa al-Assad, even their children, were directly on platforms like Twitter doing work themselves. People like   Bashar Jafri  and Bouthaina Shaaban,  they were top elites and trusted with propaganda work. It was more of a blood thing of those that were very close to each other .   They  were involved in making sure that the propaganda machine was working properly.   Y ou had Bouthaina Shaaban  setting the standard when there was the chemical weapons attack in the suburbs of Damascus . S he went out and made this preposterous claim that the armed groups in Syria, the opposition, went and got 1300 people from the coastal regio n.   W hat that meant was that they were Alawites from the coastal region. That’s what she meant to say. They were brought to Damascus, placed in  the square and then they were attacked with chemical weapons by the armed groups and these 1300 people that were killed were basically people from  the coastal region . W e have pictures of hundreds of children. It’s just preposterou s.   R idiculous. At the time, we were thinking, this is impossible, this isn’t going to be believed by the international community or anyone with any brains. I think that’s where the Syrian Government has  more experience and is  much wiser than we are in this whole game.   We used to say: ‘lie, lie, lie again, and eventually everyone will believe you’. But I didn’t actually believe that that was possible when you had video footage, you had recordings, you had  pictures, you had clear evidence. If  you deny the Holocaust, you could go to prison in many places. I think in Syria, you could ask every single person and someone at some stage would have seen some blood being spilled in a video from Syria. So the evidence is there for everyone to see. Whereas if you ask someone about the Holocaust : ‘D o you think the Holocaust happened?’. ‘Yes’. ‘ Have you yourself seen  any evidence where it happened?’ ‘I haven’t seen it myself’. Of course there is a huge amount of evidence out there. But the point is that people believe it even though they haven’t personally seen the evidence. In Syria, people have seen the videos, and they still  don’t believe it. That’s what the Syrian propaganda machine was able to achieve.   It’s horrifying  t o be honest. It really is horrifying, especially, with what we have happening now with deep fakes, and all this technology now, it really does scare me because I have seen firsthand in Syria, people believing the most ridiculous crap. It has been very effective. It’s something that’s  being done in a pyramid structure where it starts from the very top and then trickles  down. Bashar al-Assad would say things in these interviews that he was doing with Western media. This was a very  big part of the propaganda, and then you had Bouthaina Shaaban  making these crazy claims. People like Luna al-Shibl who were saying some crazy stuff. You had Jihad Makdissi,   who was also part of that game, and then he defected. When he was there, he was making these crazy claims about the chemical weapons attack. It was a very sophisticated, systematic approach to setting straight what was actually going on in Syria.   CJLPA :   The sad part is that it worked to the extent that, right now , even despite chemical weapons being used with widespread evidence ,   t here’s a shift at  least in the Arab Peninsula .   T hey’re turning a blind eye to all these things and starting to normalise  relationships, as with the induction of the Syrian government into the Arab League. There’s more dialogue happening between Bashar and Turkey, for example.   This is a question that’s quite challenging for most people that I’ve talked to, not because it’s hard, but because   i t’s just that it’s very hard to pinpoint where  exactly. Where did it go wrong in  the revolution? Because it did seem at one point that Bashar al- Assad was done. People were saying, ‘in a month he’s out’ . But where did it go wrong?   RJ : First, I just want to comment on you saying revolution, that terminology, which I agree with 100% . I t was and remains a revolution , a very weak one at this stage, in terms of impact, but using that terminolog y,   b efore someone even finishes a sentence, it becomes very clear what their opinion is. I like to use that terminology  i nstead of, you  know, civil war  or c onflict.   Then, let’s pinpoint what you just said about  the Gulf States backtracking. This thing starts in Syria. These Gulf states—United Arab Emirates, Saudi Arabia, etc—don’t necessarily like Syria, it’s too cosy  with Iran, Iran is a major opposition to them, and they don’t want Iran there. This is a good chance for Iran and Bashar al-Assad to just go away. They have conflicts with them in Lebanon, especially Saudi Arabia, with the Iranians. Assad falling out would  be good for everyone. That’s the way they saw it. On the other hand, they wanted this to happen very quickly, because they didn’t want to allow this premise of people removing their leaders, because that translates into: okay, why shouldn’t this happen in  Qatar? Why shouldn’t this happen in the UAE? Why shouldn’t this happen in Saudi Arabia? What is the difference exactly? It went  on for too long and that was  not part of the plan. I think that explains the Gulf approach, and with this, I exclude Kuwait. Major players, I think they  were more concerned with maintaining the seeds, as opposed to actually seeing any actual change. You can see now the new political line of Saudi Arabia cozying up with Iran. If you look at it holistically, you get the idea that: all right, we don’t need to oppose Assad anymore. So this means we should sort of fix things with Iran as well, and maybe fix things with  Israel as well, let’s be more like mediators in this area. Let’s keep our heads under the  bullet line, and the main thing is to stay in power.   What went wrong is definitely a very hard question to answer. What went wrong in the revolution ? I know that I contributed, as many people did, to making the mistake in thinking that we could postpone the religious fundamentalism that joined our ranks. Our belief was that we just have to bring down the regime at this stage. We had very clear logic, which was, even if ISIS broke into Damascus and was the reason that the regime fell, no country in the international community was going to allow ISIS to take control of Damascus airport. It was  not going to happen. A terrorist group like ISIS was not going to be allowed to have any weapons of mass destruction or any planes to go up and attack another country. So we knew that if Assad fell , e ven if it was at the end of very religious fundamentalist groups, it was not going to mean that Syria would become Iran or Afghanistan, we knew this was not going to happen. We were willing to pay that price for Assad to fall. Then there’s that point that I explained to you of  me understanding why someone would become religiously fundamentalist. I mean, I’ve met people who have lost their children in mortar attacks and have gone on to  fight in groups like ISIS ; I met these people that ended up going  to that extreme. I look at my daughters, and I think if something would happen to them, would I really care what people thought or whether people consider me a terrorist ?   W ould I really care what people thought of ISIS? I would want revenge and if I’m not going to be offered justice in any way, then I’ll claim that justice for myself. I think that that’s mainly where it went wrong.   One of the problems was that the secular opposition did not take up arms when it was absolutely necessary to take up arms. Do I think we went wrong, that the opposition did end up picking up arms? I think they actually took too long to take on the arms. If you look at any conflict, or any uprising in modern history, not only in modern history, Syrians were actually very impressive in just how long they remained peaceful. Especially up until July, so from March to Jul y, i t was actually boasted about how we would  stand bare chested in front of tanks. These videos were everywhere. So it was cool to  not take up arms. We were hearing stories in Homs of vans being just left there by the regime full of weapons. Even if this was a rumour, just  the fact that it was being passed on was clear that people’s logic was  that we don’t want to take up arms and the government is  trying to force us to take up arms. It was an obvious game that everyone was aware of where it went wrong.   Those are some reasons for the  political opposition, everyone  in the political opposition being influenced by different  countries. You have the Saudi group, you have the Qatari group, you have  the Erdogan group, you have the European  groups, you have the American groups. The Europeans and Americans weren’t as serious as the Turks and the Qataris at actually having their influence. This created a situation where the Syrian opposition was eating itself and unable to work clearly together. My mother was in the Syrian National Council. If you went to the Syrian National Council website, it said she was a member  of the Muslim Brotherhood party, and she was neither part of the Muslim Brotherhood nor  religious. She didn’t wear the hijab, it wasn’t true, b ut they had her down as that, because the basic international council was controlled by the Muslim Brotherhood, and she ended up resigning.   B u rhan Ghalioun, who was  the head of the Syrian National Council, was very much controlled by the Muslim Brotherhood. Who was paying for everyone’s hotel accommodation and travel? These are things that people don’t think about. Who was paying for the Syrian opposition to go to these conferences? Whoever was paying was in control, because they decided what voices would be there and what voices would not be there.   Y ou also have this suspicion from people around the world that what’s going on in Syria is not what  it seems. We didn’t have enough public pressure. Although we had a lot of support everywhere in the world, protests taking place, everywhere, amazing people that were supporting our plight, you had on the other hand people who were saying this is not true. This is all a game. I think that meant that there wasn’t enough pressure on states like the United States and countries in Europe to actually take any firm action. Why would they? Because I believe that now they’re doing it anyway, in Ukrain e. I mean, even Zelenskyy   said this, if Russia had been dealt with in Syria, this wouldn’t be happening  in Ukraine. I don’t think it necessarily just started there .   Y ou have Crimea, being a major start to all of this. This was part of a series of things that have happened, that was just allowed to happen. You’re right, it’s not an easy question to answer. I think I could have three hours and it would not be possible to cover this subject. There  are so many reasons.   CJLPA : I wanted to ask one last question. We went through the entire history from the 1970s  till now. There are many figures like  Anwar al-Bunni, Riad al-Turk, that have  kept fighting this regime, even after the regime has threatened  them with their lives. What would be your advice to any young Syrians living outside of Syria or within Syria that want to make a change in their country? How do you think they could, at this point of the revolutio n?   RJ : I’m going to be very biased in the sense that I’m going to speak out of my personal experience. Take whatever religion you have left, whatever personal ideology you have, and just leave it at home, just leave that stuff at home. I personally think, don’t believe in it altogether. Be an evidenced based person. I’m a very Darwinist kind of person, not necessarily hardcore atheist , but I’m an evidence based person. I totally respect religious sentiment and religious belief. My 12 year old daughter calls me and says : ‘I’m practising  prayers’, and you know, I encourage her, but I don’t think that should have anything to do with a plan for freedom. I think it has to be understood that if we’re to create a sort of family tree out of all of this , freedom is above religious belief . L et me be explicit because it is less critical. With religious belief, it doesn’t guarantee awarding you freedom, but with freedom, you are guaranteed to be awarded the freedom to have your own religious belief.   I’m thinking about those exact two categories  of people that you just mentioned . W e have a huge Syrian diaspora, I think the largest growing diaspora in modern history that is spread out across the world right now .   M illions of people in Europe, Canada, Malaysia, everywhere in the world, we have seen it everywhere. I think that’s one  positive aspect to everything that has happened, that we have this huge diaspora that can be influenced, and not necessarily by the Syrian regime. Then you have a group of this new generation coming up inside Syria, because I have no hope for the current and past generations that live inside Syria . T hose who have accepted to stay inside Syria, as harsh as this may sound, to me, are people for whom it didn’t bother them enough that their neighbours’ children  had been murdered or that wi th  all the atrocities that have taken place in Syria they are still able to breathe the same air as these murderers. Having the victim and the murderer on the same street with no problems doesn’t make sense. So that tells me that there are no victims anymore inside Syria.   The only victims I see inside Syria are that new generation that were born into this and don’t know what the hell’s going on. I think those peopl e, through technology and social media, are  seeing what’s going on elsewhere in the world, and especially seeing what the Syrian diaspora outside Syria is doing, how much of an inspiration  the Syrian army diaspora outside could be to the new generation inside Syria, where that new generation inside says: ‘You know what, I don’t want to live in this situation, I want to be more like this Syrian diaspora that’s outside the country. I like them. I like the videos they’re doing on social media. I like the topics they’re talking about. I think they’re cool’. I think that’s our only game at this stage to continue this revolution.   So to them, I would say, put your religious beliefs and personal beliefs aside, focus on the fact that what we want is freedom for everyone, even those that we totally disagree with , e ven if someone believes that ISIS is  great. As long as inciting violence or committing violence is not part of whatever  the hell it is you believe, it should be allowed. That is the case here. I mean, with what I just said, someone might say: ‘What the hell are you talking about? ISIS having their own freedom of speech? Well, I mean, the far right in Germany are allowed to speak, the far right in the UK are allowed to speak, these people are just as crazy about their beliefs. They’re just as racist, they have crazy ideas. That is the main question, why are they allowed to express their opinion? If you don’t allow them to speak, they will have other means of expressing themselves  and t hat usually means violence. That is why it is very important that victims in Syria, even with very religious backgrounds, are allowed to express themselves and are  given the opportunity of justice just as everyone else’s . There shouldn’t be this pick and choose situation.   My message really is a simple one: focus on freedom, not just your own freedom. The only way to do that is to throw your beliefs aside when  working on a topic like this. Life only starts once that freedom has been achieved. That’s when the real work begins. We have to start managing how we’re going to live together and accept each other. Under the rule of Hafez al-Assad and Bashar al-Assad , w e accepted each other because we were all under what we call ‘Boot el Askari’. We were all under the military boot, where everyone had to shut up. That’s why we got along . S o when they throw this at you , they say ‘Syria before was amazing, everyone got along’, everyone was forced to get along. The only criminal in Syrian  society was the government. Of course, it was a safe country, everyone was scared to death of the government. The real challenge is to give everyone freedom and create a society where freedom does not mean that someone’s freedom will be imposed  on someone else’s where people actually get along. That means that in any society that is a dictatorship and wants to make a transition into a free and democratic society, there are going to be huge bumps and obstacles, mountainous obstacles to make sure it works. That’s what you say to someone who says ’What if Bashar al-Assad goes? What’s the alternative’? A very messy situation. But a long term solution.   CJLPA : No transition of power to a new governmental system ever happened quickly . You go through many sequences until they reach their desired goal. Unfortunately for us we’re  at the stage where it’s going to take a long time before we see a plausible solution. Thank you for giving us your time. It’s been a great interview and you touched on many aspects that we are trying to touch on in  this human rights volume of the Journal . This interview was conducted by Nour Kachi, Legal Researcher for 'CJLPA: The Human Agenda'. In addition to his role at CJLPA, Nour is currently working on qualifying as a lawyer in the US and UK.

A word from the Editor-in-Chief, Alexander (Sami) Kardos-Nyheim   The last edition of the Journal ended with these words, from Léon Bloy:   ‘Man has places in his heart which do not yet exist, and into them enters suffering, in order that they may have existence’.   This edition is ultimately about human suffering and how it has affected the domains of law, politics, and art. These three domains have been shaped to a significant extent by what Robert Burns might have called ‘Man’s inhumanity to Man’, and the urge to limit it and prevent its reoccurrence. Law, politics, and art are not just three fields that are external products of a society. They are projections of what is going on within us as human beings; of the instinct to understand the world, structure it, control it, express oneself upon it, appreciate its complexity and beauty, and to live a fuller life. Human rights abuses have brought tragedy to the world; but they have also prompted huge developments in the fields of law, politics, and art. Amidst the destruction—past and present—there is a human instinct to learn from mistakes and achieve a higher level of consciousness. This is one interpretation of Bloy’s words: that inhumanity forces us, in turn, to forge new levels of humanity.     I started the Journal because I wanted to create a forum for balanced and calm thinking at a time of clash and chaos. Nowhere is this harder to achieve than with this subject matter. As illustrated by the actions of American soldiers against German officers during the liberation of Dachau in April 1945, it is difficult to remain calm and balanced when faced with human atrocities. Undoubtedly this edition reflects that difficulty. But this edition also constitutes an important collection of individuals from our three fields of focus who have wrestled with this challenge throughout their professional or personal life, and significantly contributed to the world.   I am pleased to present our first Special Edition, and our third published edition since I started the Journal three years ago. These have been three rich years in which we have grown a community of contributors spanning Nobel Laureates to Cypriot monks, Supreme Court Judges to national museum curators, artists to law students. We are also blessed with a wide community of engaged readers from around the world.   To that community, I present the risk that this Special Edition also carries. Focusing on a specific theme requires curation. That is precisely what I was trying to get away from when the Journal began. I wanted to allow for free thinking not constricted by categorisation or intrusive editorial intervention. On the other hand, to address a theme coherently, a level of structure is required—and we have ensured that our editors continue the Journal ’s practice of light-touch revisions. To break up the structure and introduce space to think, we have woven in freestanding arts articles that do not fit into specific chapters, but which are relevant to the wider subject matter of this Special Edition. See these as an opportunity to draw breath between powerful and at times heavy articles.   ‘The Sleep of Reason produces Monsters’, reproduced below, is the 43rd plate from an album of prints by Francisco de Goya entitled Los Caprichos  (‘The Fantasies’). It can be found in the Fitzwilliam Museum in Cambridge and is perhaps Goya’s best-known etching. The point, while overused, is clear: reason promises an escape from base human instincts. My fear, however, is that we are ‘over-reasoning’ in today’s political and legal discourse, which at times feels disembodied from the heart and the creative instinct—or whatever you call that which cannot be explained but makes us human.   What is less known about this particular plate of Goya’s is this added inscription, by the artist:   Imagination abandoned by reason produces impossible monsters: united with her, she is the mother of all arts and the source of their wonders.   Just as reason should not abandon imagination, nor should imagination abandon reason. With only one of these, we are indeed liable to become monsters; with both, we become capable of something better. This is why we are The Cambridge Journal of Law, Politics, and Art .

Edmund Clark uses photography, film, found imagery, and text to explore links between representation and politics. Clark’s work has been exhibited internationally at the Imperial War Museum, London, International Center of Photography Museum, New York, Zephyr, Reiss-Engelhorn-Museen, Mannheim, Huis Marseille Museum, Amsterdam, Houston Center for Photography, Texas, Saatchi Gallery, London, and Imperial War Museum North, Manchester. His work has been acquired for national and international collections, such as the Victoria and Albert Museum, National Portrait Gallery, the Imperial War Museum, and the International Center of Photography Museum. Clark was awarded the Royal Photographic Society Hood Medal for outstanding photography for public service in 2011 and made an honorary fellow in 2018. He was shortlisted for the prestigious Prix Pictet 2013 for his series Guantanamo: If the Light Goes Out.  Clark is Reader in the Political Image at the London College of Communication, part of the University of the Arts London, where he teaches on the MA Photojournalism and Documentary Photography course. Gabriella Kardos: Before we delve more deeply into the project you did at HMP Grendon, ‘In Place of Hate’, could you talk briefly about your art practice in general?     Edmund Clark : I am interested in linking history, politics, and representation. My work is research-based and combines a range of references and forms including bookmaking, installations, photography, video, documents, text, and found images and material. Projects often take a long time from idea initiation, research, and making, to dissemination in different forms across various platforms. Two broad subject areas are 21st-century conflict and criminal justice and incarceration. Recurring themes are exploring systems of power and control and unseen processes and experiences. Specific conflict subjects have included: the detention camps at the US Naval Base, Guantanamo Bay, Cuba; extraordinary rendition and the CIA secret prison program; and the use of control orders by the UK government. I have made two bodies of work about experiences o f incarceration in the UK, including nearly five years as artist-in-residence in HM Prison Grendon, Europe’s only wholly therapeutic prison for violent and sexually violent offenders. GK: You spent a number of years as an artist-in-residence at HMP Grendon, known to be very different from other prisons. Men who are already serving time apply to go there to undergo an intense process of group therapy and self-analysis, in an attempt to understand their own past and what led them to the crimes they committed. What brought you to this prison and the decision to dedicate an important part of your life to this work?   EC : My first book, Still Life Killing Time , was about the experience of long-term imprisonment and ageing at HMP Kingston in Portsmouth. I then spent several years on a series of works about conflict and the so-called ‘Global War on Terror’. I saw the post of artist-in-residence at Grendon advertised on the Arts Council website. I was initially very reluctant to revisit UK prison policy as a subject. However, I was intrigued when I found out what happened at Grendon, its unique therapeutic remit, and what that represents in the wider context of criminal justice discourse and policy, so I decided to go ahead with the application and eventual interview. The clincher for me, in terms of committing to the role, were the facts that it was supported by the Marie-Louise von Motesiczky Charitable Trust, and came with the opportunity to work with, and exhibit at, IKON in Birmingham. It was a properly funded residency with the potential to develop and explore completely new work, in a very different place and context to the work I had made for my first book. There were two parts to the role: to make work in response to the place; and to work with the inmates to develop their creative practices. I was clear in deciding to accept the role that I would make work in completely new ways.   GK: You worked with several interwoven aspects: 1) photographs of the prison architecture and its grounds, 2) photographs of plants from within the prison grounds which were collected, dried, and photographed, and 3) portraits of inmates and staff taken with a lens-free pinhole camera. When juxtaposed against each other these separate elements conjured a deeply psychological space, resulting in a book My Shadow’s Reflection, as well as an exhibition involving photography and installation. What made you choose these three aspects of inquiry as your brushstrokes, so to speak?   EC : ‘My Shadow’s Reflection’ is the title of one of the installations in the exhibition ‘In Place of Hate’ at IKON. I also made a separate book with that title using the three elements you talk about, the photographs of the buildings, the flowers and plants, and the pinhole images. They emerged at different stages of the residency. It was only in the last year that I brought them together. The architectural photographs came first and were partly an expression of how I felt about the place, and of wanting to ‘see’ differently. I had used colour images of buildings and constructions in my work before in quite a neutral way. These black and white images seek to show the prison buildings as sculptural forms that are more emotive. They also show the evolution of penal priorities: increased security paraphernalia, patched up infrastructure, temporary measures made permanent, disappearing paths, and bricked up doorways.   The pinhole images were a response to being told that I could not make images of the inmates. I wanted to explore how the ‘criminal’ is ‘seen’ and ‘represented’ by society and how that relates to discourse about criminal justice. The plant matter and materials evolved from a conversation with a colleague from the University of the Arts London, where I teach, about processes of growth within the prison in relation to the therapeutic processes. She suggested simply looking at things that grow within the prison walls. I wasn’t convinced, but it was quite early on, so I decided to experiment and eventually it became an important element of the work, being part of ‘My Shadow’s Reflection’ and the installation ‘1.98 metres square’.   GK: What made you preserve and photograph the dried plants? Was it their fragility and beauty in spite of their lifeless state, a kind of metaphor for something which you uncovered in the prisoners? Can you talk about the symbolism of this motif and the difference between the larger than life projections of the dried flowers in the exhibition setting as opposed to when they are shown in a glass cabinet? EC : As I say, I started collecting and pressing plant matter quite early on in the residency. I pressed the plants between prison issue paper towels in albums in my office underneath piles of art books. I did it very badly. Some rotted, some fell apart. But I did it for about three years and ended up with lots of material. Ideas emerged from this process. First, the difference between the decorative flowers deliberately planted in the organised flower beds, the wild flowers that appeared randomly, and (what would commonly be called) the weeds that grew chaotically, often in the most unpromising places around walls or in the cracks in paths, or in the places that were rarely visited. Second, it became quite performative as a process. Inmates could see me doing it from their cell windows and were interested—picking and pressing flowers not being exactly a normal part of prison life. Third, with hindsight, it was a way in which I became connected physically to the place.   I don’t see the plant matter as symbols as such. I don’t think they ‘represent’ the inmates. I think they relate to how we ‘see’ or classify, and the way language is used to discriminate. That is represented by the perceived differences between the ‘beautiful’ flowers planted deliberately and nurtured in organised structures, and the chaotic wild flowers or ‘weeds’ that are tolerated or unwanted. Why are those distinctions made, what do they mean? Is this a reflection of how criminality and the ‘criminal’ is perceived by society, and how those that do not develop, or are nurtured, in organised structures—that do not ‘fit’—are treated? I think the plant material also relates to ideas of transformation and exposure, and the part these play in the intense therapeutic process at Grendon. The plants have changed over years through picking and pressing under piles of books in my office. When placed on a lightbox every blemish, tear, crease, piece of rot, vein appears. Even the pattern of the prison’s paper towels can be seen. Therapy at Grendon is about sharing what you have done, what has been done to you—and what others have done and had done to them. It is about being held to account all the time for your behaviour. It is about exposure and it is about transformation that has to be seen by others.   The material was used in two ways in the exhibition. In ‘1.98 metres square’ the pressed flowers and plants are placed in a large lightbox that forms the walls of a square installation, with an entrance, that is 1.98 metres square—or 6 foot 6 by 6 foot 6. This is the size of a cell at Grendon. The viewer is invited to enter this space to look at the plant matter. The lightbox is the only light in the room. As your eyes adjust to the light and the more you look, the more you see. Confined between the panes of the lightbox—plants, flowers, weeds—all are seen in the same way. Exposed to the light in this way, the matter continued to transform through the period of the exhibition.   The projection ‘My Shadow’s Reflection’ is the final installation in the exhibition. It follows three quite controlled experiences based around the regular shapes of the square, the ‘V’, and the circle. The viewer is then immersed in a dark room with six projectors at different heights with different sets of images (buildings, plants, people) shone for different times onto hangings made of green prison bed sheets that the men sleep between locked behind a door during what is described as ‘hard lock up’. This is the nighttime of reflection after talking about the damage you did to someone and of what was done to you; of seeing those images of yourself, and of hearing what others did or had done to them. As the viewer moves around, they can’t help but pass before a projector, at which point their shadow will be cast onto an image on a hanging sheet. The installation is about the chaos and fear behind the narratives that are heard at Grendon—the undercurrent of trauma beneath the daily routine. The potential for chaos and violence within all of us. The title ‘My Shadow’s Reflection’ comes from a poem an inmate wrote in response to their pinhole image. GK: Initially the pinhole camera was a solution to being forbidden to photograph the prisoners, but you turned it into a creative device which allowed you to do a lot more. Within the group context you asked each participant to stand up in front of the camera, when their turn came, and answer your questions, as well as questions from the group regarding why they were there, what crime they committed, and how they felt about it. Each photograph took about six minutes while each person talked and often moved, which made the portraits appear blurred. Six minutes is quite a long time to spend in this intense interlocked connection. How did this unique approach shape your understanding of their stories and experiences? Did you ever feel uncomfortable during this process, and did the prisoners welcome your interventions?   EC :   Most of the inmates were life tariff prisoners, or on indeterminate IPP sentences (Imprisonment for Public Protection). I could not make identifiable images of them for very good reasons of protection for their victims, or victims’ families, and for their own future security in terms of not being identified when eventually released. However, at another level I believed this ‘unrepresentability’ related to how serious criminals are ‘seen’ in society, and conventional discourse about criminal justice. If you commit a serious crime, you literally disappear when you go behind the walls of a prison. You cannot be seen again. In fact, in many ways you cease to be perceived as a human being if you have been convicted of a serious crime—you are forever ‘seen’ as a monster, such is the reductive and binary way society (and especially the media and politicians) engages with criminality. Most likely, the last image of a serious offender will be the police mugshot reproduced in the media to accompany the reporting of their sentencing. I wanted to confront this by making images of the people I was not allowed to. I explained this strategy to the governor and to the men—that I wanted to engage them in exploring how they are ‘seen’ by society.   I decided to experiment with a pinhole camera, a technology I had never used before, as I knew it would not produce a sharp image, because it has no lens. I also liked the idea that I would not be mediating the images of the inmates—I was not responsible for focusing their image. Rather, it was just the light that reflected off them that left a trace on the film. These were representations of the images they made of themselves at Grendon. As I could not record what was said, these are also visual records of a conversation. I was also interested in the connection between the etymology of the word ‘camera’—from the Greek for ‘vault’—and the architecture of the cell, and particularly the cell in a panopticon prison. In theory, these prisons were designed so that prisoners were visible to warders at all times, with illumination coming from a small window in each cell and a central bay with, perhaps, an internal light source. In my imagination, such a design would not mean the inmates were always clearly visible, however, but often only perceivable as a shadow or an indistinct presence. Like the image created by a pinhole camera with a small light source. For me, this linked the technology of the apparatus, and the images it made, with the idea of Grendon, and its therapeutic process, as a psycho-therapeutic panopticon, where inmates had to reveal everything, and where they had to account for their behaviour, and hold their fellow inmates to account for their behaviour, at all times. I used the setting of the small group in a room asking questions of the individual who stood before the camera, and the two lights, as this reflected the group therapy process (three days a week the men worked in small groups of about six to eight with trained prison officers and staff to talk in depth about their offences and lives—the other two weekdays were whole wing meetings).   The idea was extended to include prison officers and staff as well, who spoke about their experiences of Grendon, in response to questions from small groups of men. Some of these images were included in the exhibition and the catalogue, but not the publication of ‘My Shadow’s Reflection’.   GK: Below, selected from your project, are a couple of examples of the kinds of reactions experienced by the men looking at the photographs you made of them:   It’s the best photograph of me ever, it’s amazing. It’s like you are looking through me but you can see the warmth of my body or my organs or the energy inside me, like a heat recognition camera. I’d like people to see me as a normal person. There is nothing in the photograph to identify me as a prisoner. I’d like them to see the essence, the spirit, the warm energy inside me.   When I look at the picture I imagine a fairytale. I see myself walking through the woods. I come to a muddy swamp and fall into it, shouting and screaming at passers-by who won’t help me because they see something crazy, menacing, and monstrous. The more I struggle the more desperate and off-putting I am. It’s only when I’m able to pull myself from the filth and dirt that passers-by recognise me as a human being and feel that I’m worthy enough to offer me a hand. The blurriness of the image shows that I’m still covered with mud and unrecognisable. I need to brush off the dirt that’s still on me; then they will see someone who is trusted and reliable.   These blurred photographs become a vehicle of self-reflection for the prisoners, and a space for contemplation in general. One can feel from their responses that they had been sensitised to think more deeply through the therapies they were undergoing. Some of the men expressed appreciation for the photographs, seeing in them a representation of their very essence, while others felt invisible, dismissed, or judged. How did you feel about this outcome?   EC : As well as exploring the conceptual links between technology, representation, and architecture, I was also making a connection to the history of the mugshot, pioneered in the 1880s by French policeman Alphonse Bertillon, hence the head and shoulders framing and monochrome film of the pinhole images. I was disconcerted that the early images we produced were too ghostly and indistinct, and perpetuated the representation of the criminal as a ‘monster’. However, it was the reaction of the inmates themselves that made the visual strategy relevant. They responded with readings of what they ‘saw’ of themselves in how they looked. This was amplified when we took the images to the whole-wing meetings. The images encouraged, provoked, generated discussion about self-image and the image or perceptions of the criminal or monster by the public. The wing psychologists and staff were also interested. The images had the capacity to be a visual extension, or manifestation, of the self-reflection inmates undertook as part of the therapy process. As a result of the strength of the reaction, I formulated a list of questions to ask each inmates when we looked at their image together, and agreed a summary of their responses at the time. These are a crucial part of the work. In the installation ‘My Shadow’s Reflection’ at IKON, the responses scrolled slowly on a screen underneath a set of physical prints—on which inmates had intervened on their images. In the book, the words are included, in the centre, printed on green paper. GK: While you were there you witnessed a group therapy in which the prisoners enacted Oresteia , the 5th-century BCE trilogy of tragedies by Aeschylus, playing the psychodrama of the killer and the victim, while wearing masks. Did the prisoners enact the various revengeful murders of Agamemnon and others, or was it their own stories which they were asked to enact, or both? The senseless chain of killings for revenge as a way of bringing justice is broken in Eumenides , the last play of the trilogy, in which Athena in effect sets up the first courtroom trial, which I imagine is one of the reasons for which this play was chosen. Can you tell us something about this theatrical enactment?   EC : Oresteia  was a film made possible by the collaboration of the psychodrama staff (one of the main creative therapies in the prison in which the men revisit events from their past under guidance). It shows an episode related to psychodrama where prisoners respond to characters from Aeschylus’s three part tragedy, The Oresteia .   We worked together to find a format that the staff believed would represent what they do, and which was a genuine psychodramatic experience for the men who took part (all the participants had previously completed a course of psychodrama). Nothing was rehearsed. It was to be a one off and unedited episode. Beforehand, the men were introduced to the play and told that they were going to engage with the characters, Agamemnon, Clytaemnestra, Iphigenia, Orestes, and the Chorus, to be played by members of the psychodrama staff.   In the film, the prisoners identify with the characters as perpetrators, victims, or witnesses or more than one of these in a process of catharsis, central to the role of Greek tragedy. All the characters are masked; for the necessary anonymity of the men and as part of the customary presentation of dramatic personae in Greek drama. The interaction between the participants combines accepted representations of violence in high art and the unheard narratives of serving prisoners stigmatised for their crimes and stereotyped as being amongst the lowest status people in society. The film was shown on three monitors placed on a circle of the blue chairs seen in the film; the same chairs and configuration that the men and staff use during group therapy.   GK: Was there an exhibition in the prison to which the public was allowed?   EC : Throughout my residency, I was interested in creating dialogue between prisoners and public. We arranged day long exhibitions of their work in the prison, when invited audiences could experience visiting a prison—and the men could talk about what they had made as artists. With the IKON exhibition I tried to bring the materiality of the prison into the gallery space—to confront a public audience with it as much as possible—to use the permissiveness of the art space to create a different sort of dialogue about criminal justice. GK: The book which you produced was given to prisoners, prison staff, as well as decision makers in the justice system who may even have played a part in the fate of these people. How was it received within the criminal justice system?   EC :   Not surprisingly there was not a huge direct response. I got a letter of acknowledgement, with my name spelt incorrectly, from the Prime Minister’s chief of staff, and a more engaged reply from the chairperson of the All Party Parliamentary Group on Penal Affairs. I did get the chance to talk with ministers, albeit briefly, while I was working in Grendon. The work was featured across several pages in the FT Weekend  magazine so that may have reached another audience of decision makers.   GK: How did this whole experience affect you, the prisoners, and the prison staff? How difficult was it to leave this place at the end of the project? Were the group situations set up so no personal connections could be formed?   EC : I cannot speak for how the experience affected the prisoners or the staff. In his introduction to the exhibition catalogue, the governor, Jamie Bennett, said:   This experience of being offered a glimpse into the process of artistic creativity has been deeply rewarding. That is not to say that it has always been easy or comfortable. The work produced has explored some complex and disquieting ideas […] This work has also carved out a distinct contribution as a means of questioning the role of crime, prison, and power in society, and encouraging critical reflection by the viewer on their own role in that structure.   The work was exhibited in the prison as a condensed version of the Ikon exhibition, including a screening of the Oresteia  for the inmates and staff who took part. The exhibition in the prison included a day for the inmates to see the work at the same time as an invited public audience. I took part in a Q&A with the men which they turned into a discussion of what it meant to work with me, and a good natured interrogation of what it meant for me.   I can’t really articulate the impact of the experience on me. It is hard to describe what it is like working in a prison like Grendon. It is probably the most profoundly positive place I have been in; the experience of working with the men on their practices, and with the staff, the most remarkable and self-affirming one I will ever have. At the same time, it exists because of the tragedy, horror, and trauma that underpins it, and it carries memories that leave me upset when I think or talk about them. From the things people said they had done, or been done to them, to the situation of individuals I spent time with, to discussions witnessed in the wing community meetings, or the oppressive and grinding impact of carrying and being responsible for keys, and the security imperatives of a high security environment.   I stayed beyond my original residency contract in order to put on ‘In Place of Hate’ in the prison. I had the option to renew the contract. But five years is a long time. I had wanted to make a body of work that was creatively shaped by the processes, techniques, and experiences—and environment—at Grendon, and I think I managed to do that. Once the work was shared with the inmates, my role risked becoming blurred, as I became as much of a therapist as an artist—not a role I am trained for or, on reflection, wanted to do. GK: It is clear to me from all the prisoners’ reactions to the photographs you took of them that this project had an immense impact on these men. Have you ever worked on any other project where your role as observer or participant brought a level of humanity, no matter how small, in an otherwise inhuman situation?   EC : I am somewhere between the impartial or objective implications of the ‘observer’, and the engaged implications of the ‘participant’. Maybe ‘interlocutor’ or ‘visual researcher’ are more accurate.   I often use the personal or domestic or ‘everyday’ as subject matter in my work. It is usually connected to people who are the subject of political controversy, or in highly charged situations. It is a strategy for ‘de-exoticising’ these subjects, of getting away from the simplified (and often misleading or partial) narratives on our screens about these subjects. It is also a way of suggesting how these subjects can be related to at a personal level, or how the consequences resulting from their situation impact all of us in our lives. I often seek to connect an audience with global/geo-political/ethical issues through the identifiably ordinary or domestic. I have worked with former detainees from the detention camps at Guantanamo Bay, and from CIA secret prisons. I have also worked with a ‘controlled person’ living under a control order as someone suspected of involvement with terrorist related activity. They are sharing aspects of their lives with me, but I would not seek to claim that I can or do advocate for them. I explain that I want to say something about the systems of control and power that operate around them. These encounters are often time limited and impacted by external factors.   Having said that I did work for two years on the work that became Still Life Killing Time , which looks at the nature of long-term incarceration and ageing in a prison environment through the politics of space, and, specifically, the shared and personal environments of life prisoners on a particular wing.   GK: How different was this experience from working on other projects, such as ‘The Day the Music Died’ , a series of eight projects exploring the measures taken by various countries, especially the United States, to protect their citizens from the threat of international terrorism?   EC : The two exhibitions and bodies of work were very different experiences and processes. ‘In Place of Hate’ was based upon a prolonged time in one environment and with one community. It was predicated on making a cohesive body of work and, for the last eighteen months or so, with a specific gallery space in mind. ‘The Day the Music Died’ was an iteration of a museum exhibition that encompassed a variety of projects, across a range of related subjects, with an international reach, being brought together to relate to a theme defined, post-facto, with a curator. Both exhibitions are about systems of control, and the representation of people in politically charged situations, but in very different contexts and experiences.   GK: Your project clearly demonstrates the role art and creativity can play in humanising the polarised world we live in, which brings me to another point, that the voices of artists should be heard within the framework of political discourse, because they are relevant.   EC : I think the purpose of art is to question, explore and interrogate what is going on behind official messages and processes. It is very unusual for artistic, documentary, or editorial work to directly impact government policy, but it can and does effect discourse around, and representation of, political and social subjects. I think artists have to think about their relationship to the systems of control and ownership behind today’s digital media and platforms disseminating information, and to ask themselves if they want to critically reflect on the complexity of the world they inhabit, or provide entertainment and decoration for rich people. Perhaps the most successful artists do both. This interview was conducted by Gabriella Kardos, an artist and art historian. In 1976 she escaped communism with her family, fleeing Ceausescu’s regime in Romania and emigrating to Montreal, Canada in search of freedom. Here she studied Fine Arts at Dawson College and Art History at Concordia University. She went on to teach Art Theory in the Painting and Drawing Department of Concordia University and Painting in the MA course of Vermont College of Norwich University, USA. She holds an MA from Central St Martins, London and has exhibited at the Czech Museum of Fine Arts, Prague, Anglia Polytechnic University in Ipswich, UK, ROSL, Victoria & Albert Museum, and WCPF in London. She lives in London where she is pursuing her art practice in painting and printmaking.

Shona Illingworth is a Danish-Scottish artist and Professor of Art, Film and Media at the University of Kent, UK. Her work examines the impact of accelerating military, industrial, and environmental transformations of airspace and outer space and the implications for human rights. She is co-founder with Nick Grief of the Airspace Tribunal ( https://airspacetribunal.org/ ). Recent solo exhibitions include Topologies of Air at Les Abattoirs, Musée—Frac Occitanie, Toulouse (2022–23), The Power Plant, Toronto (2022), and Bahrain National Museum, Manama (2022–23). Illingworth was a Stanley Picker Fellow, is an Imperial War Museum Associate and sits on the international editorial boards of the Journal of Digital War and Memory, Mind & Media . The monograph Shona Illingworth—Topologies of Air was published by Sternberg Press and The Power Plant in 2022 ( https://www.sternberg-press.com/product/shona-illingworth/ ). With over 40 years’ experience as a legal academic in three universities, Nick Grief is now Emeritus Professor of Law at the University of Kent where he completed his undergraduate and doctoral studies. Throughout his career he specialised in public international law, international human rights law, and EU law, with particular reference to airspace, outer space, and nuclear weapons. Nick also practised at the Bar for 25 years, mainly as an Associate Tenant at Doughty Street Chambers, where he is now an Honorary Associate Tenant. He was a member of the legal team which represented the Marshall Islands before the International Court of Justice in cases against India, Pakistan, and the UK concerning the obligation to negotiate in good faith towards nuclear disarmament. This interview was conducted in September 2023. CJLPA: First, I just wanted to say thank you both for taking the time to interview with The Cambridge Journal of Law, Politics, and Art  to discuss your work on the Airspace Tribunal, a revolutionary human rights project that considers the case for the freedom of individuals to live without physical or psychological threat from above.[1] So I would just like to start by asking if you can tell us a little bit about the inception of the idea, and how things have progressed thus far with respect to the work of the Tribunal.   Nick Grief : It sounds crazy, but the germ of this idea originated at a meeting that we both attended at the University of Kent in 2016. It was a planning meeting, and I was at the time Dean for our Medway campus. Shona was there as a senior member of her school, and during one of the breaks we found ourselves sitting next to one another. We didn’t know each other, but we got chatting and discovered mutual interests in human rights, airspace, outer space, etc. And that’s what led us to start talking and thinking about this project. I think that’s probably where it dates from Shona, isn’t it?   Shona Illingworth : Yes, that’s the first time we met. We had an immediate connection through our common interests and concerns. The reasons for that are also quite important, particularly considering that I am an artist and Nick is a lawyer.   I grew up on the northwest corner of Scotland in a small community of craft workers that had established itself in a former military early warning station on the edge of the Cape Wrath Range, one of NATO’s most extensive live bombing ranges. It’s a 360-degree range, which aso means that it can be attacked simultaneously by land, air and sea. Twice a year, NATO and its allies conduct Europe’s largest military training exercise called Joint Warrior, using this landscape and airspace as a proxy for places of conflict elsewhere. Up to 20 countries participate in these large-scale ‘war’ exercises, which include live artillery fire, aerial bombardment, anti-submarine ships, and more recently drone technology. Around 75 aircraft are regularly involved across northwest Scotland and numerous warships appear on the horizon.   Most critically, for me, in terms of my relationship with the sky, was that without warning, three or four GR4 Tornado jets could suddenly come in very quickly and very low to drop 1000-pound live bombs on a small island just off the coast. As a child growing up there in the 1970s, the vast open skies of this remote and sparsely populated landscape would instantly collapse into an oppressive lid over our heads. The sonic force was visceral, our spatial world contracting with the overpowering military presence above. It was a complete transformation of our environment through the sheer force of the jets—that level of violence and control.   My parents were part of the 1960s post-war generation looking for another kind of life. They moved to this remote location, also hoping to escape the threat of nuclear annihilation. There was, growing up there, this constant sense of threat. This was a place that had been part of the Chain Home Command during the Second World War, then identified as the site for an early warning station at the start of the Cold War. There was always a sense there of imminent threat coming from the over the horizon.    The military use of the Highland landscape had been an area of focus in my practice for many years.[2] In 2012, I began work on a project called Topologies of Air, during an artist residency at Taigh Chearsabhagh Museum and Arts Centre in the Outer Hebrides. I was particularly interested in the planning and consultation process for a large expansion of the Hebrides Range, extending from the Outer Hebrides out into the North Atlantic. The Range is used for complex weapons trials and live-firing and is managed by a commercial company called QinetiQ. I’d read the consultation documents, and it was clear to me that the terms of the consultation were very constrained. For example, the economic case presented was that if the expansion didn’t take place, the military may close the Range and jobs would be lost. Employment and the risks of de-population have long been of critical concern for remote communities. The environmental impacts were considered in equally narrow terms.   During the residency, I recorded conversations with people living there, and undertook research. I was interested in the cultural history of the sky and relationships between people in that landscape and the space above. I became very aware of how modernity’s representation of the sky as open and empty contributed to an erasure of the deeper cultural history of the sky and understanding of its place in many different cosmologies. This act of cultural erasure, I would argue, supports the military instrumentalisation of the sky as a ‘sanitised’ space of ‘unlimited altitude’ for weapons testing.[3]    When I returned, I met Nick and discovered that he was a lawyer and law professor with expertise in international airspace law and human rights. When we met again to discuss my research in the Outer Hebrides and the consultation on the expansion of the Hebrides Range, I also described my experience growing of up in the edge of the Cape Wrath Range. Nick asked me whether I thought freedom from the effects of those oppressive forms of occupation above could be a question of human rights. I said, absolutely. Nick then explained how the legal framework for defining airspace had not significantly changed since 1944 and we agreed that this did not reflect the radical transformations in how the sky is now being used. It was during that first meeting that we decided to set up an international people’s tribunal, which we called the Airspace Tribunal, to develop the human rights dimension of airspace and outer space and consider the case for and against a proposed new human right.[4]   NG : Let me just add a little bit of colour on the legal side. My background is as a lawyer specialising in international law and human rights. In particular, I did my PhD on international airspace law, because I’ve always been intrigued by aviation and airspace even as a youngster. Before I went to university, I was fascinated by the concept of airspace and how airspace is controlled. I was particularly fascinated by the legal regime governing international airspace where there is no sovereign territory below, for example, the airspace over the high seas.   One of the first things Shona and I did was to look closely at the airspace over the UK and adjacent to the coast. We were keen to see how these military activities that Shona has described in and around the north of Scotland were provided for in terms of airspace regulation. We plotted the various restricted zones and danger areas on a map of the UK, and it allowed us to see their impact at a glance. Another thing we did was ask whether there were existing human rights laws by which this kind of activity could be challenged with respect to people’s enjoyment of the space above their heads, as live munitions are being used in these test zones.   SI : Just to add to this, during the production of an earlier work of mine called Balnakiel , I was filming the Joint Warrior Exercise from the Range Control Tower on the Cape Wrath Range.[5] I was with cinematographer Bevis Bowden and we were filming a Show of Force, which is a military tactic used to disperse civilians in an area of conflict by bringing fast jets in extremely low over the ground. I didn’t know, however, that the target area for the exercise was the control tower where I was standing. Within seconds, I experienced three GR4 Tornado jets flying incredibly low towards the building. The rush of adrenaline, the fear, the physiological transformation of my body lasted for 48 hours. It was so intense I could not sleep. I say this because even though I knew that I was not under attack or at risk, the impact was overwhelming. It has been incredibly important for the Airspace Tribunal to gain an understanding of the actual lived experience of the expanding militarisation and weaponisation of airspace and increasingly outer space, by hearing from people in different parts of the world who are being subjected to threats, violence and risk of injury or death from above, and who are often living in a perpetual state of anticipatory anxiety which can cause long-term physical, psychological, and physiological harm.[6] CJLPA : I’d love to dive a little more deeply into this point about the lived experiences of others, and how that has shaped and changed the Tribunal as well. How has the Tribunal evolved and how has your thinking evolved since you started holding meetings and having conversations with folks who have more lived experience?   NG : We decided that a good way of progressing this would be through a people’s tribunal, as Shona has outlined, because it was important to us that if this proposal was going to be meaningful and gain traction, it would need to be supported by evidence from experts and especially testimony of lived experience. A great number of the witnesses at our hearings have been people telling their stories of what it’s like to live under constant threat.    Rather than having a panel of formal judges hearing evidence and then pronouncing judgment, we wanted the audience themselves to be the judges. We also felt it important to have someone as counsel to the tribunal. A qualified legal counsel with experience of probing, interrogating, asking the right questions, summarising, and helping us to shape the proposal as the hearings evolved. Kirsty Brimelow KC was our principal Counsel to the Tribunal and Andrew Byrnes fulfilled that role at the hearing in Sydney. We also floated our proposed new human right, including the proposal for a people’s tribunal, in an article that we co-wrote with Andrew Hoskins and Martin A. Conway that was published in the European Human Rights Law Review  (EHRLR) in June 2018, so we’ve come a long way in quite a short time. There have been four hearings: London, Sydney, Toronto, and Berlin.[7]   I suppose the plan all along has been, through these hearings, to shape the proposal, get critical feedback on what is being proposed, and respond to that feedback by making adjustments and corrections. And then, ultimately, we intend to submit the proposal, supported by the evidence gathered principally through the hearings but also through other meetings and events, in a dossier to the UN, the Council of Europe, and elsewhere. We want this to lead somewhere meaningful, we don’t want it simply to disappear into the ether and remain aspirational.   SI : Lived experience has been central to the process of developing the proposed new human right. Working with people whose experiences are often overlooked but whose perspectives are critical to understanding complex social, political, and cultural issues has been central to my art practice over many years. It’s important not to marginalise experiences, of trauma for example. Those experiences are essential to understanding the world we live in. The Airspace Tribunal hearings brought together a wide range of knowledge and perspectives. It was particularly important to bring knowledge that is often siloed into dialogue with the perspectives and knowledge of people with lived experience. Those exchanges formed part of the fundamental dynamic of the Airspace Tribunal hearings.   For example, we heard from Jack Penashue, an Innu activist and Superintendent of Akami−Uapishkᵁ−KakKasuak−Mealy Mountains National Park Reserve, about the successful Innu protest against the impact of low flying jets on Innu culture, lands and ways of life.   We have had people describe the impact of witnessing the use of chemical weapons, being bombed and being subjected to drone strikes. I have recorded conversations with survivors of the atomic bombing of Hiroshima about the long-term impacts of the bombing. We heard from Omar Mohammed, historian and journalist formerly known as ‘Mosul Eye’, how children in Mosul cannot look up at the sky without fear,  about the dehumanising effect of turning civilian casualties into statistics and how they are silenced by the devastation of war.[8] We heard Abdul Hanan’s testimony about how his sons were killed along with 80-100 other civilians when they were bombed by US fighter jets while standing near two fuel tankers near Kunduz in northern Afghanistan. We heard from Adel Al Manthari, a civil service worker, who was the target and only survivor of a drone strike in Yemen ordered due to mistakes in surveillance. In these cases, there has been a major issue with achieving any form of recognition, accountability or remedy.    As Nick mentioned, Martin A Conway, a neuropsychologist and leading expert on autobiographical memory, was a co-author of our article in the EHRLR in 2018. He highlighted how little understanding there was of the specific psychological features of suffering threat from above even though, as we have also heard from neuropsychologist Catherine Loveday, the psychological and physiological impacts are considerable. One of the significant areas of concern to emerge from the Airspace Tribunal hearings is the lack of understanding about, and legal provision for, these long-lasting, traumatically intrusive, and trans-generational impacts of threats from above, not only for individuals but also for large populations. Hearing about the experience of those impacts is therefore fundamental to our understanding of the devastating human consequences of the expanding military and increasingly interconnected corporate exploitation of airspace and outer space.   We have also heard how the existential threats of climate and environmental change are driving the rapid transformation of airspace and outer space, and the compounding impacts on people, communities, and whole ecologies of life. We need to challenge the forms of abstraction which allow the instrumentalisation of airspace and outer space for military and commercial purposes without critical consideration of the wider consequences. This is a crucial part of the process. CJLPA : I also feel the conversation around abstraction ties back into another piece that you both alluded to, which is the centring of state sovereignty in international law and the state-centric approach to enforcing and policing international protections, especially considering how often human rights instruments are ignored. I’d love to hear your perspectives on that as it relates to the Tribunal as well.   NG : One thing I’d like to say by way of introduction is that there have been a number of other civil society initiatives that have led to significant legal developments. A couple come to mind, both of which relate to one of my professional interests which is the legal status of nuclear weapons. Back in the 1990s, I was involved in a campaign called the World Court Project on nuclear weapons and international law. The purpose of the World Court Project was to enable the UN General Assembly to request the International Court of Justice (ICJ) to deliver an advisory opinion on the legal status of nuclear weapons, on what we saw as the illegality of nuclear weapons. Are there any circumstances in which nuclear weapons can be used lawfully?    Ultimately, with any civil society initiative, you need one or more states to champion the proposal or the initiative. And that’s what happened with the World Court Project. Thanks to some very well-constructed lobbying at the UN, the UN General Assembly voted to ask the ICJ for its advisory opinion on the legal status of nuclear weapons. In July 1996, we got that advisory opinion. Another good example of a civil society initiative that is actually leading somewhere substantive is the International Campaign to Abolish Nuclear Weapons (ICAN), which has been instrumental in producing a Treaty on the Prohibition of Nuclear Weapons (TPNW).   I’m not saying that we’ve yet reached the final end point because treaties are only binding on those states which are parties to them, in general anyway. And the nuclear weapons states are not party to the TPNW, so there’s still some way to go. But these are both, I think, significant examples of how civil society initiatives can lead to something substantive, even if there’s still work to be done in garnering support for adherence to the principles that result. So we’ve been under no illusions from the start that, although this is very much a people’s tribunal and a civil society initiative, we will ultimately need the support of one or more states. But we are pretty confident that there will be states that are interested in this proposal.   One of the key catalysts for the project was a statement made by the former foreign minister of the Marshall Islands, Tony de Brum, when I was part of the legal team that represented the Marshall Islands in the ICJ in cases against India, Pakistan and the UK. These cases concerned whether those and other nuclear-armed states were doing enough to honour their obligations to negotiate in good faith towards nuclear disarmament. Tony de Brum was co-agent for the Marshall Islands. In the case against Pakistan in March 2016, he began his opening statement by recollecting his experience as a nine-year-old boy on the day in March 1954 when the Bravo nuclear test was conducted by the US. Essentially, this radioactive dust was falling from the sky. The children thought it was snow, and they played in it. It was such a powerful image, made all the more powerful because the day before Tony delivered this speech in The Hague, there had been a snowfall, and he was able to harness that and capture the imagination of everyone in the Courtroom.  SI: We shouldn’t underestimate how important the principles and language of human rights are for allowing us collectively to imagine and move towards other kinds of futures. This is because they are also about considering our relationship to civil society and our relationship to and understanding of a changing world with the principles of equality at their base.    In relation specifically to the Airspace Tribunal, considering the human rights dimension of airspace and outer space has brought a number of critical concerns to the fore. For example, states and peoples are increasingly dependent on outer space for their social infrastructures, their transport systems, their capacity to monitor climate change, and their capacity to monitor human rights abuses. The vast majority are also increasingly vulnerable to the growing disparity of power in relation to who owns, controls and has access to the infrastructure and technology, such as satellites, in outer space and near space.    We have heard, for example, from Kevin Bales, a leading expert on the intersection between contemporary global slavery and ecocide, talking specifically about the problem of accessing the kind of satellite data that is needed to identify human rights abuses on the ground.[9] Anson Mackay spoke about the history of the weaponisation of the weather and global governance issues around large-scale geoengineering projects.[10] Legal experts have also looked at how the proposed new human right might intersect with existing outer space law and have identified critical gaps that it could help to fill, for example, in relation to the weaponisation of outer space.[11] Human rights lawyers have considered how the proposed new right would work in relation to International Humanitarian Law (IHL), particularly concerning proportionality and the need to take psychological harm into account. The impacts of trans-boundary pollution and air toxicity, and complex threats posed by nuclearism, AI, predictive targeting, development of autonomous weapons and mass surveillance have also been examined. The process of developing the proposed new human right also involves testing it in real world scenarios with people who are working in the field, and considering it in relation to cases brought by people who have been directly subjected to the impact of those threats from above. NG: There is an important interplay between International Human Rights Law (IHRL) and IHL. Rules of IHRL can influence the interpretation and application of IHL. IHL is the body of international law that’s designed to, as far as possible, spare civilians from the effects of hostilities. For example, when a military attack is being planned and executed, great care must be taken to avoid attacks which may be expected to cause excessive incidental injury to civilians. So even if the state is attacking a military objective, it still has an obligation to avoid attacks which may be expected to cause excessive incidental civilian injury.    Now, it’s not as clear as it ought to be, in our view, what the word ‘injury’ means in that context. When Chatham House did some research a few years ago on proportionality in the conduct of hostilities, it wasn’t entirely clear whether mental harm is part of that assessment. When you’re trying to decide whether an attack would cause excessive incidental civilian suffering, does mental harm come into that equation or not? We’re arguing that if there is a doubt about the inclusion of mental harm in that proportionality assessment, that doubt must be resolved. And it would be resolved if the right that we’re proposing were recognised, because when interpreting that provision of IHL, it would be clear beyond any doubt that mental harm must be taken into account. That’s one concrete example of how the proposal we’re submitting would have a significant impact in a military context because of the interplay between the two bodies of international law, IHRL and IHL.   CJLPA : So, we’ve talked about the psychological, military, and legal pieces of this equation, but I want to make sure we highlight the environmental dimension. How does environmental protection figure into this proposed right? SI: One of the critical dimensions of the Airspace Tribunal is that it brings together and looks at intersections between the military and corporate exploitation of airspace and outer space, and climate change. I think it’s problematic to keep these as separate areas of concern for many reasons. Climate change is causing resource scarcity, catastrophic loss of biodiversity, and increasing areas of the world are becoming uninhabitable. There is a very direct relationship between expanding weaponisation, multi-dimensional and never-ending war, colonial and neo-colonial exploitation and extraction, constant competition for power and resources, and the immense impacts that climate change and war are having on ecologies and peoples.   And as consequence, there will also be unimaginable numbers of people who will be displaced and forced to migrate. So it is critical to think of climate change, air toxicity, pollution, pandemics and collapsing ecosystems in relation to conflict and war. This is one of the critical dimensions of the Airspace Tribunal, it brings together people who would not normally be having those conversations into the same space.   NG: I must confess that the environment, the environmental dimension of this proposal, wasn’t at the forefront of my mind when we set out on this journey. It’s something that has become increasingly apparent as the project and hearings have evolved.   SI: I would suggest that this soon came within the sphere of our understanding of the transformations of airspace that required addressing. In that first article for the EHRLR, we refer to the consequences of environmental change and to the chemical transformation of airspace. I think what the process of the Airspace Tribunal hearings has emphasised and brought to the fore, is also the need to critically examine and respond to how the multiple, compounding and increasingly complex threats from above to which people are now subject intersect.   I would add that this is also a political issue. For example, countries are not required to include armed forces’ emissions in their calculations or targets for addressing global warming and yet the military are among the largest polluters globally. This is just one example of how this separation is structurally organised. It’s also structurally organised in terms of the disciplinary boundaries of expertise and the way that our institutions of knowledge are set up. I also think that considering the politics of scale is very important: how you think about people and their environments, the ecologies they live in, in the context of these huge global forces. That’s something that the Airspace Tribunal has also made great effort to bring into focus.   NG: Human rights treaties are commonly often described as living instruments, to be interpreted in the light of contemporary conditions. The right that we’re proposing could conceivably be carved out of one or more existing human rights, such as the right to life or the right to respect for private life, which has been interpreted as covering not just physical but also psychological integrity. But our argument has always been, first, for reasons of democratic legitimacy, that it is better that this proposed right should be interrogated and one day hopefully recognised through normal legislative processes, domestic and international. But also, for the reasons of scale that Shona has alluded to, and because of the compelling evidence we’ve heard, it seems to us that this right is just too important to be left to a dynamic interpretation of existing rights. The right we’re proposing deserves to be, demands to be a free-standing right. CJLPA : I think the intersectionality that you’re both pointing to is is obviously incredibly important in human rights law. Up to this point, we’ve talked about law and history and how they have impacted the creation of the Airspace Tribunal. But I am also interested to hear from you, Professor Illingworth, on how the creation of different art pieces has shaped this proposal and your perspective on this proposed right.   SI : First of all, maybe I should describe some of the artworks in the large body of works that I have been developing through the interactions between the work of the Airspace Tribunal and my creative practice. Topologies of Air  is an immersive three-screen video and multi-channel sound installation, which had its genesis in the early research I undertook during my residency in the Outer Hebrides.[12] The work began very much within the cultural, political, historical and social space that I grew up in, but engaged from the start with these wider questions. I was then commissioned in 2017 by The Wapping Project, a London-based arts organisation, to make the three-screen video and sound installation.    Topologies of Air  is 45 minutes long and is projected onto three large screens in a dark blue space. So you’re almost surrounded by a triptych of moving images and spatialised surround sound. I filmed the work in different parts of the world: in the oil fields in Bahrain, in the aluminium smelter there, which in the immediate area has some of the most polluted air in the world. I also filmed in Hiroshima, Sharjah and Ajman in the UAE, Canada, China, Kuwait, Japan and Europe. The work moves across different scales, ecologies and environments. It moves from the ground up through the atmosphere and into outer space. It includes archive footage and the sound is expansive and multi-layered. Throughout the work you hear voices of people giving evidence at the Airspace Tribunal hearings in London and Sydney, along with recordings, for example, of people speaking in Hiroshima. The purpose is to create an immersive environment where, through the dynamic interplay between moving image, voice and sound, the public can engage with, think about and actually feel the importance of those cultural connections to the sky; the growing complexity of those intersecting existential threats across scale; the need for a collective space for discussion; and the sense of urgency to act.    A solo exhibition of  Topologies of Air  and related works was shown at The Power Plant in Toronto in 2022. This was preceded by a hearing of the Airspace Tribunal hosted by The Power Plant and chaired by its then Director, Gaëtane Verna. The exhibition then toured to Les Abattoirs, Musée Frac-Occitanie in Toulouse where it was shown from June 2022 to May 2023.  Topologies of Air  was also installed at the Bahrain National Museum from September 2022 to January 2023 and screened in the Outer Hebrides by Taigh Chearsabhagh in 2023. Future exhibitions of the work are being planned for galleries and museums in other parts of the world. The artworks include photographic works which map all restricted airspace globally. The scale of this is shocking to see. A wallpaper piece where the proposed human right appears in yellow text across an expansive black and white composite image, along with transcribed extracts from the Airspace Tribunal hearings, and a growing series of video works centred on the hearings in Toronto and Berlin. The exhibition offers different modes of engagement as you move through it, with spaces for immersion, reflection and discussion. At the end of the exhibition at les Abattoirs, there was a Reading Room developed with curator Lauriane Gricourt which included an archive of works and research materials from my studio, along with books and wall text works. An archivist engaged visitors in discussion and invited the public to note their thoughts and responses on a specially designed Sky Wall. An analysis of the responses by Luli Van Der Does was presented at the Sky Assembly, an interdisciplinary people’s assembly organised with the museum to discuss the proposed new human right. The exhibition was also accompanied by a large monograph on my work: Shona Illingworth—Topologies of Air , edited by Anthony Downey and published by Sternberg Press and The Power Plant in 2022.[13]   The artworks are an integral part of the Airspace Tribunal. They are created and informed by the dynamic exchanges that have run through the Tribunal, my collaboration with Nick, and the many collaborations and conversations that have shaped the work and project. The exhibition aims to mobilise wider public discussion by developing new forms of visualisation for the increasingly complex threats from military, corporate and environmental transformations of airspace and outer space, and to engage questions of human rights.   CJLPA : What’s next for the Tribunal and for the proposed right?   SI : We’ve been working closely with Renata Salecl, Andrew Hoskins, and Anthony Downey on the ongoing work and as co-editors of a special issue of the Journal of Digital War  on the Airspace Tribunal, which will include commentaries and articles written by many of the people who spoke at the Airspace Tribunal hearings. This special issue will form an integral part of the submission of the proposed new human right to the UN, the Council of Europe and other bodies in 2024. The dossier will also include the legal case for the proposed new human right written by Nick, the drafting history, summaries of a Defence Roundtable that we held at the Imperial War Museum in 2021 and a Legal Roundtable with experts in IHL and human rights lawyers soon afterwards, and other materials and evidence that we’ve gathered. The legal case for the proposed new human right has also been published as an essay in the book Shona Illingworth—Topologies of Air .   In November 2023, we are holding a workshop with the European Center for Constitutional and Human Rights in Berlin, to consider the proposed new human right in the context of the war in Ukraine. The workshop will include human rights lawyers, policy makers, Ukrainian legal advisors, and experts in IHL, international criminal law, social rights, military strategy, and psychological trauma. We are also working with a growing international network of people and organisations on the next stages of this project.   NG : The only other thing I would say by way of conclusion, is that through this process I have learned how deeply relationships with the sky run. And how deeply they run across cultures, spaces, and time. I’ve learned more and more about what the sky can teach us. I’ve always gazed in wonder at the sky. I remember, many years ago, lying on a beach somewhere and thinking: somewhere up there is the boundary between airspace and outer space. That was part and parcel of my journey towards specialising in that area of international law. The sky can teach us about the cosmos, it teaches us about the universe, it helps us to have perspective, and it has certainly taught me more about what it means to wonder, just to wonder. But we’ve also heard in these hearings, particularly through the lived experience of participants, how our relationships with the sky are all too easily fractured. And it’s our hope that through the recognition of the proposed human right, the vital associations that people across the world have with the sky can be restored. This interview was conducted by Aidan Johnson, who holds a Master’s degree in international human rights law from the Irish Centre for Human Rights. In addition to his role as a Legal Researcher at CJLPA, Aidan also works on refugee resettlement and advocacy in the US. [1] Nick Grief, ‘The Airspace Tribunal: Developing the Human Rights Dimension of Airspace and Outer Space’ in Anthony Downey (ed), Shona Illingworth—Topologies of Air  (Sternberg Press and The Power Plant 2022). [2] See Shona Illingworth and Gaëtane Verna, ‘Topologies of Air: In The Making’ in Downey (ed) (n 1). [3] QinetiQ use these terms to describe the suitability of the Hebrides Range for complex weapons trials, in-service firings, and ground-based air defence test and evaluation. [4] Nick Grief, ‘The airspace tribunal and the case for a new human right to protect the freedom to live without physical or psychological threat from above’ (2020) 1 Digital War 58. [5] Shona Illingworth, Balnakiel (2009), single screen video, 30 minutes, commissioned by Film and Video Umbrella. [6] Catherine Loveday, ‘Threat from the air: a neuropsychologist’s perspective on psychological and physiological harm’ (2024) Digital War < https://doi.org/10.1057/s42984-023-00081-w > accessed 1 May 2024. [7]  Nick Grief, Andrew Hoskins, and Martin A Conway, ‘The Airspace Tribunal: Towards a New Human Right to Protect the Freedom to Exist without a Physical or Psychological Threat from Above’ (2018) 3 European Human Rights Law Review European Human Rights Law Review 201; Nick Grief, ‘The airspace tribunal and the case for a new human right to protect the freedom to live without physical or psychological threat from above’ (2020) 1 Digital War 58. The Airspace Tribunal hearings were hosted by Doughty Street Chambers in London in 2018, the Ethics Centre in Sydney with the Big Anxiety Festival in 2019, The Power Plant in Toronto in 2020, and the European Center for Constitutional and Human Rights (ECCHR) in Berlin in 2021. [8] Omar Mohammed, ‘The Mosul Eye’ < https://mosuleye.wordpress.com > accessed 10 December 2023. [9] Kevin Bales, ‘Expanding and protecting human rights from space’ (2023) Digital War < https://doi.org/10.1057/s42984-023-00064-x > accessed 10 December 2023. [10] Anson W Mackay, ‘Airspace in the Anthropocene’ (2023) Digital War < https://doi.org/10.1057/s42984-023-00062-z > accessed 10 December 2023. [11] Iva Ramuš Cvetkovič, ‘Two sides of the same coin? Examining the interrelation between the proposed new human right and the law governing outer space’ (2023) Digital War  < https://doi.org/10.1057/s42984-023-00066-9 > accessed 10 December 2023 ; and for a discussion on the goal of preventing an arms race in outer space see Steven Freeland, ‘The Peaceful Use of Outer Space; Protecting Life on Earth’ (2023) Digital War < https://doi.org/10.1057/s42984-023-00065-w > accessed 10 December 2023. [12] Caterina Albano, ‘Topologies of air: Shona Illingworth’s art practice and the ethics of air’ [2023] Digital War < https://doi.org/10.1057/s42984-022-00053-6 > accessed 10 December 2023. [13] Anthony Downey, ‘Calculating Skies: Topologies of Air and the Airspace Tribunal’ ( MIT Press Reader , 22 April 2022) < https://thereader.mitpress.mit.edu/calculating-skies-topologies-of-air-and-the-airspace-tribunals/ > accessed 10 December 2023

Since 15 August 2021, the Taliban Government continues to suppress the progression of women’s basic human rights in Afghanistan, resulting in their systematic oppression as a result of state sponsored crimes against humanity which has also encompassed gender apartheid. Gender apartheid has been defined as the economic and social sexual discrimination against individuals because of their gender or sex. This manifests itself as a system enforced by using either physical or legal practices to relegate individuals based on their gender to subordinate positions. [1] While I certainly believe that the de facto government is engaged in gender apartheid on a daily basis against all women and girls in Afghanistan, the focus of this paper shall be on arguing the legal case that can specifically be brought against the Minister of Justice and the Minister of Interior of their committing crimes against humanity to the over two hundred and seventy women and girls detained in Pul-e-Charkhi prison. These women and girls are victims of gender apartheid, torture, imprisonment, sexual slavery, and other inhumane acts, intentionally causing great suffering as well as serious injury to their bodily and mental health, all in violation of the Rome Statute Article 7.   In October 2023, I visited Pul-e-Charkhi prison in Afghanistan and talked with numerous guards, administrators, detainees, and children. I have worked as the only foreign attorney litigating cases in Afghanistan since 2008. As part of this work, for over 15 years I would routinely visit the prisons and have litigated numerous cases in both criminal and civil courts, particularly for women and girls. Certainly, before the Taliban takeover of Afghanistan’s government on 15 August 2021, the legal system was far from perfect in meeting conventional rule of law standards. However, there was at least some attempt in following a system where women were treated more humanely, and certain basic standards of human rights were adhered to. Between 2022 and 2023, however, Afghanistan was deemed one of the countries with the largest decline in human rights.[2]   Since the 2021 takeover of the government, the legal system and the landscape of Afghanistan has dramatically changed, and things have gotten dangerously worse for women and girls—especially those in prison. Due in large part to the conservative cultural political ideologies and the uniquely conservative and inflexible doctrines imparted by the zealots of the de facto government, who have deprived women of their basic human rights, the country is one of the worst for women.[3] Since 2021, through over sixty-five decrees the Taliban has cemented and normalized its gender-apartheid practices, by denying females the right to secondary education, forbidding them to work in offices, denying them the right to travel alone without a ‘suitable’ mahram, banning them from working for international NGOs, and invalidating thousands of legally validated divorces, often due to abuse by their husbands.[4] According to the Islamic Republic of Afghanistan’s Constitution, Article 22 notes that:   any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man and woman, have equal rights and duties before the law.[5]     Furthermore, the Convention on the Elimination of All Forms of Discrimination Against Women, which Afghanistan remains a state party to, obliges:   State parties to respect, protect, and fulfill women’s rights to non-discrimination and the  enjoyment of de jure and de facto equality.[6]   Also included in Article 15(1) of the convention is the enumerated right that men and women are to be equal before the law.[7]   On 15 August 2021, as they took control of Kabul, the Taliban emptied out Pul-e-Charkhi prison, the largest prison in Afghanistan, located in the outskirts of the capital, retaining only some of the inmates to be hired as guards of the facility.[8] As such, every man, woman, and child who is currently detained in Pul-e-Charkhi and other prisons and detention centres throughout Afghanistan, remain there because of the Taliban. Pul-e-Charkhi, nicknamed ‘The Prison of Death’, became notorious for the torture and executions imparted on many of its residents during the ten-year Soviet war.[9]  Unfortunately, under the Taliban, the torture and neglect of detainees is in full force and the prison continues to live up to its abysmal reputation.   From April 2008 through the fall of the duly elected government on 15 August 2021, Pul-e-Charkhi only housed adult men. Now, Pul-e-Charkhi is home to detained men, women, juvenile girls and boys, as well as children of the detainees. Article 1 of the Juvenile Code of Afghanistan states as one of its goals the protection of the human rights and interests of children within the juvenile justice system with particular attention to the ‘protection and safeguarding (of) their rights during the investigation and trial’. Another of the goals enumerated by the previously elected government was to respect the vital role children play in the construction of society.[10] It aimed to protect children at risk by rehabilitating and re-educating children involved in conflict in an attempt to return them to society as productive citizens.[11] Another commitment as articulated in the Juvenile Code was the commitment to take into consideration the UN instrument on the ‘Convention on the Rights of the Child’.[12]   According to Officials at the Directorate of Prison Affairs, in February 2023 more than 12,000 persons were imprisoned across Afghanistan, with 2,000-2,500 prisoners in Pul-e-Charkhi.[13] It is difficult to determine if these numbers were accurate, how the prison officials came to this number, and whether such numbers also encompass the Afghan men, women, and children who are detained at the numerous informal and/or secret detention facilities which have sprouted across Afghanistan since August 2021.   According to personal accounts shared with this writer in the fall of 2022, a 34-year-old women’s rights activist, Laila,[14] who worked for the Afghan government prior to August 2021, was arrested twice. In the first arrest, she reported being tricked to come to the office where she had worked as a government official to collect her grossly overdue salary for nine months of work. According to Laila, when she went to the office with her five-year-old daughter Taliban officials were there waiting for her. Upon her arrival, they locked her and her daughter inside the office, brutally beating them. She said that she was interrogated for hours and was forced to provide her address, the names and addresses of her family members, the names and addresses of other women’s rights activists, and information about her former colleagues. Additionally, Laila recounted her phone being taken away and searched without her consent, while the Taliban tracked her communications, noting the numbers saved in her phone. Eventually, after more than five hours, Laila and her daughter were released with the warning that if she continued to protest, her and her family would be killed.   A few weeks later, Laila recounted being arrested again and kidnapped by at least three Taliban officers while she was going to the hospital to get medicine for her daughter. This time she reported being forced into a car, immediately blindfolded, and a blanket being thrown over her in which she felt suffocated. Laila recalls being driven around for a ‘long time’ and then being taken out of the car with her head still covered, while a gun was pointed at her back. Laila shared with me that while walking, ‘there were small stones on the ground. And they took me down the steps to a basement’. She said that she was taken to a room where the door was closed behind her. The blindfold was taken off when the light was switched on in the room, which had a terrible stench. Laila said she saw black walls and ‘human blood’ covered the floors. Laila recounted being detained in this room for months where she was electrocuted, beaten, and starved. According to Laila, her Taliban captors told her that they would kill her and her family as they had killed many before in this same room where she was being held. While there, Laila described hearing screams and tortuous pleas every day. In Islam, human life is sacred and one of the greatest gifts and blessings of God. Laila said she was forced into signing a ‘confession’, stating that she had been ‘paid by foreigners’ who put her up to protesting for women’s rights to make Afghanistan look bad to the world. To secure her release, Laila’s family was forced to pay the Taliban.   It is tragic stories of secret imprisonments, torture, and indeterminate detentions like Laila’s as well as countless others in Afghanistan which have been grossly under reported by the media, but which have been featured across social media on nearly a daily basis since 15 August 2021.   What the Taliban Say   The current Minister of Justice, Shaikh Abdul Hakeem Sharai, noted that one of the Ministry’s mandates is to monitor ‘the implementation of international human rights conventions in governmental institutions’.[15] It is the Ministry of Justice that oversees the task of providing the fundamental right to all Afghan citizens to free legal representation to those who have been arrested, like Laila, for criminal matters.[16]    The Acting Minister of Interior, Sirajuddin Haqqani, appointed on 7 September 2021, notes that one of its mandates for its office of General Directorate of Human Rights, Child Rights and Gender, is to:   ensur(e) that Afghanistan adheres to Article 22 of the Afghan constitution, the UN charter, and international treaties and conventions to which Afghanistan is party that concern human rights, gender equality, reduction of violence, monitoring, and prevention of human rights violations, securing and respecting the rights of children, and promoting human rights values among the police.[17]   The Ministry of Interior is responsible for all formal and informal law enforcement activities, the care of detainees, and has charge of managing all the prisons and detention centres throughout Afghanistan. Sirajuddin Haqqani’s  statement is consistent with Article 7 of Afghanistan’s Constitution which states:   the state shall observe the United Nations Charter, inter-state agreement, as well as international treaties to which Afghanistan has joined, and the Universal Declaration of Human Rights. The state shall prevent all kinds of terrorist activities, cultivation and smuggling of narcotics, and production and use of intoxicants.[18]   On 17 July 2023, the Taliban issued a decree abolishing the Attorney General’s Office, which was the prosecutorial arm of the country, and instead mandated the direct prosecution and investigation of cases to be taken over by the police and courts.[19] This move represents a glaring conflict of interest to have the courts and the police charged with prosecuting as well as investigating cases. There is little that a detainee can do to fight against both institutions. Both Minister Sharai and Minister Haqqani are not only failing miserably in adhering to their own mandates, but they are the primary perpetrators of crimes against humanity against all detainees in Afghanistan. Both the MOI and the MOJ Ministers and institutions, in their failures to adhere to basic rule of law standards, are complicit in committing crimes against humanity in a large-scale attack against Afghan women and girls, many of whom have been falsely imprisoned, enslaved, disappeared, and have become victims of gender apartheid.[20] This blatant disregard for basic human rights, which Afghanistan as a state party has acceded to, demands prosecution in the International Criminal Courts. The Rome Statute Article 7(a) defines crimes against humanity as follows:   crimes against humanity means any of the following when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.[21]   Female Detainees at Pul-e-Charkhi Prison   In October 2023, I was given access to Pul-e-Charkhi prison, where I was told that approximately 270 adult women and juvenile girls are being detained. [22] This number represents a more than 165% increase of females locked up in the Kabul Female Prison and Detention Center (KFPDC) in 2009 and does not account for the numerous uncounted women and girls who are currently held in secret detention centres throughout the country. [23]   All of the detainees I met within Pul-e-Charkhi  were arrested, charged, and convicted between 7 September 2021 and 7 October 2023, under the leadership of the de facto Taliban government. These females ranged in age from as young as 15 years old to at least 50 years old. As it is understood, the women and juvenile girls are detained together and there is no categorisation of charges that determine where they are housed.   These numbers are based on self-reported data of the fifty-nine (59) detainees or roughly 21.8% of the female prison population at Pul-e-Charkhi as of 7 October 2023.   AGE BREAKDOWN RAW NUMBERS Under 18 years old = 17% 18 to 24 = 41% 25 to 31 = 20% 32 to 38 = 12% Over 38 years old = 10% Source: Survey by Kimberley Motley   Prior to the fall of Afghanistan on 15 August 2021, adult Afghan women were locked up at the KFPDC and juvenile girls were locked up separately in a juvenile detention facility near the KFPDC. Now, as reported to the UN and this writer, ‘Afghan women reporting gender-based violence to the authorities may end up in prison (KFPDC and other prison facilities)—allegedly for the victims’ own protection’.[24]   Violations of Crimes Against Humanity—Rome Statute Article 7   Rome Statute Article 7(1)(E) & 7(1)(G): Indeterminate Imprisonment and Severe Deprivation of Physical Liberty and Sexual Violence Against Detainees   Of the many women locked up in Pul-e-Charkhi, the vast majority shared with me that they did not know what they were charged with. None of the women we spoke to were allowed to have an attorney present for them in court, and many reported that they had already completed their sentences. The male and female guards shared that in order to be released from prison, females are required to have an ‘acceptable’ mahram come to the prison to take responsibility for their release. This writer talked with several women who reported having a brother, fiancée, husband, or father who was willing to be their mahram and who came to the prison to request that the women be released to them. Unfortunately, it was reported that the Taliban denied the right of several mahram, and instead told the women that they could only be released into the arms of a Taliban fighter whom they would force to marry. This act of imprisonment, forced marriage, and the enslavement of the women and girls oppressed to marry Taliban fighters upon their release from prison is a clear crime against humanity pursuant to Article 7 of the Rome Statute.[25] [26] RAW NUMBERS Crimes Represented: Zina / Adultery = 21% Running Away = 17.4% Murder = 6.3% Theft = 7.9% Unknown &/or New Crimes = 45%   In December 2021, Taliban leader Haibatullah Akhundzada issued a decree that prohibited forcing women into marriage, gave them restitution ( baad ), and granted women the right to consent to marriage.[27] Additionally, we found that females at Pul-e-Charkhi in 2023 were at varying stages within the legal process, some not knowing why they were in prison, some in a pretrial stage of waiting for court, a few who were serving a sentence, and many others waiting for release. Of these women, 45% reported either not knowing what they were being charged with or being imprisoned for a crime that did not exist prior to 15 August 2021. Approximately 41% reported being imprisoned for moral crimes such as running away and adultery. Whether or not the actions fit the charges was unclear and there did not appear to be a process to validate charges that women were being held for.   In one case, a woman told us that her baby was sick, and she needed to go to the hospital. Scared to go alone, due to her husband having abandoned her, the woman asked her female neighbour to go with her. On the way to the hospital, the taxi that they were being driven in was stopped by the Taliban, both women and the baby were arrested and tortured—they ultimately ended up in Pul-e-Charkhi charged with adultery.   Unfortunately, it appears as though the Taliban have introduced and are charging women with new crimes that are not written in Afghanistan’s Penal Codes. One woman reported being arrested and charged with a crime because she was divorced her husband; several other women said they were charged and convicted of adultery through social media, but it was unclear why, because neither noted that they posted anything of issue. Another woman described being forced to give Taliban officers her phone when she was stopped on her way home from the store. She was arrested and given a six-month sentence on the grounds that she had promoted prostitution through social media. She told me that she had completed her sentence and that the Taliban refused to release her because they wanted her to marry one of their fighters.   Afghanistan’s Constitution Article 130 allows for courts to take into consideration other laws which may not be codified:   in cases under consideration the courts apply provisions of this Constitution as well as other laws. If there is no provision in the Constitution or other laws about a case, the courts shall, in pursuance of Hanafi jurisprudence and within limits set by this Constitution, rule in a way that attains justice in the best manner.[28]   Prior to August 2021, Afghanistan law was regulated by the Penal Code that was updated in May of 2017.   According to the female detainees and documents shared by prison officials during  my visit to Pul-e-Charkhi in October 2023, punishments varied from 100 whips, a 20-day prison sentence on the lower end, or two years prison on the longer end.[29] Back in 2008-2021, it was not uncommon for women to get ten years in prison for violent crimes. Whilst the amount of prison sentences on the surface appears to have decreased under the Taliban, based on the data that I was able to collect, we found that the uncertainty of when one will be released is a common issue as those who do not have an ‘acceptable’ mahram as approved by the Taliban are either forced to stay imprisoned for an indeterminate amount of time or they are pressured and/or forced into marrying Taliban fighters.   Rome Statute Article 7(1)(K): Other Inhumane Acts Causing Great Suffering, Or Serious Injury to Body or to Mental or Physical Heath   It was reported to me that there was a lack of food, water, medical assistance/access, vocational training, and access to defence attorneys—not for a lack of attorneys, but rather because the courts would not accept them. Many of the women appeared to have bumps on their skin and faces due to the dirty water they are forced to bathe in and consume.   As shared by the detainees, there are also a wide variety of self-reported medical issues including but not limited to breast cancer, HIV, and the lack of access to basic feminine products. As witnessed by this writer, the United Nations gives some supplies to Pul-e-Charkhi prison for women known as a ‘dignity box’, each contains basic hygienic essentials such as soap, shampoo, feminine products, toothpaste, etc. This writer witnessed rooms filled with these boxes from the floor to the ceiling in the administrative area of the prisons, far out of the reach of the detainees. It was reported that the UN intended that each individual female detainee receive one dignity box about every three months. However, the reality is that the dignity boxes are given to detainees only once—and that one box is shared between two women. One person reported that the male guards at Pul-e-Charkhi often use and take the dignity boxes for themselves or family members.   Rome Statute Article 7(1)(F): Torture   Detainees reported widespread beatings and prison administrators confirmed the continued imprisonment of women even after the completion of a sentence. One former detainee who managed to get released from Pul-e-Charkhi said that the ‘male guards beat the female guards, and the female guards beat them [the detainees]. If the female guards are too nice then the male guards beat them [the detainees] worse’. This horrendous cycle of violence and torture was evidenced by the many bruises, cuts, and scrapes on detainees that I witnessed in my visit.   Mohammad Yusuf Mistari, the director of the prison's affairs, at a ceremony held on 7 February 2023 where guards received new uniforms, stated that ‘in all prisons, there is no place for torture, and you will not find even a case that a prisoner is being tortured’.[30]   This statement is contrary to what I witnessed, and it is believed that one would be hard pressed to find a woman or girl at Pul-e-Charkhi who had not  been subjected to abuse while housed there. One woman, Amina, recounted being denied food and water.[31] Amina said she was taken to Pul-e-Charkhi prison after being stopped by the police while trying to go home. Her husband had abandoned her family after the de facto government took charge and she became the head of household. She shared that the police took her phone and looked through her pictures deciding that her fully clothed selfies were ‘against Sharia’. Amina was beaten on the way to Pul-e-Charkhi and at the prison. As reported, when she asked about her case, she was beaten and has been denied food and water. Amina reported that the Taliban have tried to convince her to marry one of their soldiers so that she may be released.   The women in Pul-e-Charkhi also told me that the detainees are sexually assaulted every few months through forced vaginal checks by guards. The women said that female guards shove their fingers inside every detainee to humiliate them further. When this writer asked the female guards about this, they admitted that they in fact participate in such checks, but with the purpose of looking for phones and other contraband that may be hidden by the detainees.   Female Prison Prior to 15 August 2021   In December 2008, when I first visited the KFPDC facility, and later in June 2009, I reported that there were at least 105 women including 71 children who were detained at the KFPDC.[32] At that time, I was able to collect data for about 20% of the women detained and noted that more than 37% of women were detained for adultery and 10% for running away.[33] The age range in 2009 of the women detainees was from 19-70 years old. Many women to whom I talked knew what they were charged with, which court(s) they attended or were scheduled to attend, and the length of their punishments. Within the facility, detainees took advantage of literacy and embroidery classes, and children were allowed to go to school. I also witnessed women in prison voting at the facility during the Afghan presidential elections and while the law allowed everyone the right to an attorney, only a few of the women did not have a lawyer present in court.   In my visits from December 2008 through 2021, those detained at the women’s prison in Kabul were largely from the city, illiterate, and many had never attended school. My earlier visits to the women’s prison before August 2021 were in many ways a stark contrast to my October 2023 visit to Pul-e-Charkhi. For instance, the educational level of those detained at present is substantially higher than before, with several detained women being college graduates and a number of others having completed some level of schooling. Unlike my prior visits before the de facto government took over Afghanistan, in 2023 there were no classes for the detainees and schooling for the kids was expected to start but had not yet. Ethnically, at least half of the women were from the minority Hazara group; Pashtun women made up 22% of the detainee population with whom we had contact.   [34]   Conclusion   The de facto government in Afghanistan continues to seek recognition by the international community. They should not be recognised nor should their behaviour be normalized. The Taliban has not abrogated Afghanistan’s participation in any of the international conventions to which it had been a signatory prior to August 2021. As such, any acts of crimes against humanity and gender apartheid remain under the jurisdiction of the Rome Statute of the International Criminal Court, to which Afghanistan acceded in 2004.   Prior to August 2021, the rights of women trapped within the legal system felt like an impossible mountain to climb as they were often punished for being victims of brutal abuse.[35] It is far worse today. Afghan women and girls are forced to endure a legal system that represents hell on earth, at no fault of their own as is the nature of gender apartheid. Overall, Afghanistan’s treatment of its incarcerated women and girls is not just a broken system, it is a catastrophic disaster and arguably one of the grossest violations of modern-day human rights. They are regular perpetrators of crimes against humanity, who have faced no consequences.   Additionally, the newly enacted criminal charge that exists nowhere but Afghanistan of ‘adultery through social media’ when the Taliban are pulling women off the streets, looking at their phones, separating them from society, and locking them up on trumped up charges is another classic example of gender apartheid. The evidence is overwhelming, and investigations have time and time again justified charging persons working within the de facto government for committing crimes against humanity—particularly for the women and girls imprisoned within the walls of Pul-e-Charkhi.[36] It is time that the Office of the Prosecution at the International Criminal Court act. Don’t be silent? Say something. Speak out against the madness. Rumi Kimberley Motley Kimberley Cy. Motley is a dedicated international human rights attorney and author who has worked in Afghanistan for over fifteen years. She is the founder of Motley Legal Services and was the first foreigner to litigate cases in Afghanistan’s criminal and civil courts. She has litigated numerous cases internationally with a focus on women’s rights, victims’ rights, and fighting on behalf of defenders of human rights in Afghanistan, Bolivia, Malaysia, the US, and more. Currently, she is on the list of counsel with the International Criminal Courts and is the chair of the training committee, ecocide committee, and on the defence committee for the ICC-BA. [1] United Nations Economic and Social Commission for Western Asia, ‘Gender Apartheid’ (2016) < https://archive.unescwa.org/gender-apartheid > accessed 10 March 2024. [2] World Justice Project, ‘WJP Rule of Law Index 2023 Global Press Release’ ( World Justice Project , 2023) < https://worldjusticeproject.org/news/wjp-rule-law-index-2023-global-press-release > accessed 10 March 2024. [3] PRIO, ‘Afghanistan Ranks Bottom of Global Index on Women’s Status’ ( PRIO , 24 October 2023) < https://www.prio.org/news/3476 > accessed 10 March 2024. [4] Emma Graham-Harrison, ‘Taliban ban girls from secondary education in Afghanistan’ Guardian  (London, 17 September 2021) < https://www.theguardian.com/world/2021/sep/17/taliban-ban-girls-from-secondary-education-in-afghanistan > accessed 10 March 2024; United States Institute of Peace, ‘Tracking the Taliban’s (Mis)Treatment of Women’ < https://www.usip.org/tracking-talibans-mistreatment-women#:~:text=The%20Taliban%20have%20barred%20women,to%20return%20to%20abusive%20husbands > accessed 18 September 2023; Ayaz Gul, ‘Taliban Hold Firm to Ban on Afghan Female Aid Workers’ (VOA News , 30 December 2022 )  < https://www.voanews.com/a/taliban-hold-firm-to-ban-on-afghan-female-aid-workers-/6898315.html > accessed 10 March 2024; ‘Afghan women forced back to abusive ex-husbands after divorces annulled ( The Japan Times , 2 April 2023) < https://www.japantimes.co.jp/news/2023/04/02/world/divorced-afghan-women-fear-abuse-husband-return/ > accessed 10 March 2024; United States Institute of Peace, ’ Tracking the Taliban’s (Mis)Treatment of Women’, < https://www.usip.org/tracking-talibans-mistreatment-women > accessed 18 September 2023. [5] Islamic Republic of Afghanistan’s Constitution, Article 5 [6] United Nations Assistance Mission in Afghanistan, ‘Divergence of Practice: The Handling of Complaints of Gender- Based Violence Against Women and Girls by Afghanistan’s de facto Authorities’ < https://unama.unmissions.org/sites/default/files/the_handling_of_complaints_of_gbvawg_english_141223.pdf > accessed 10 March 2024. [7] Article 2 of the Universal Declaration of Human Rights, to which Afghanistan is a state party, notes that the right of equality before the law without discrimination is also a basic human right. [8] ‘Guarded by ex-inmates, Kabul’s Pul-e-Charkhi Prison lies deserted’ ( Ariana News , 16 September 2021) < https://www.ariananews.af/guarded-by-ex-inmates-kabuls-pul-e-charkhi-prison-lies-deserted/ > accessed 10 March 2024. [9] Bilal Sarwary, ‘Kabul’s Prison of Death’ ( BBC News , 27 February 2006) < http://news.bbc.co.uk/2/hi/south_asia/4756480.stm > accessed 10 March 2024. [10] Afghanistan Juvenile Code, Article 1. [11] ibid Article 2(1)(2) & (7). [12] ibid Article 2(4). [13] Nazir Shinwari, ‘Officials: Over 12,000 Imprisoned Across Country’ (TOLO News , 7 February 2023) < https://tolonews.com/index.php/afghanistan-181953 > accessed 10 March 2024. [14] Out of concern for the safety of this Afghan woman, the pseudonym of Laila will be used. [15] Afghan Ministry of Justice, ‘Rule of law and Access to Justice without any discrimination across Afghanistan’ < https://moj.gov.af/en > accessed 10 March 2024. [16] See Constitution (n 5), which states that ‘Upon arrest, or to prove truth, every individual can appoint a defense attorney’. [17] ‘Chief of Staff’ ( Afghan Ministry of Interior ) < https://moi.gov.af/en/chief-staff > accessed 10 March 2024. [18] Constitution (n 5) Article 7. [19] According to the decree, the Attorney General’s Office was replaced by the Directorate of Supervision and Prosecution of Decrees and Orders, but it does not directly investigate or prosecutes cases. [20] Whist the Rome statute Article 7(1)(j) does not specifically define ‘gender apartheid’, as it should, it does note that apartheid is a crime against humanity. Based on the imprisonment of women and girls within Pul-e-Charkhi prison, and other detention facilities, as well as the denial of access to education, healthcare, freedom of movement, amongst other rights of females in Afghanistan it is clear that the Taliban has engaged in acts of apartheid against women based solely on their gender therefore this writer and the evidence suggests that gender apartheid has been committed against females in Afghanistan under the Taliban rule. The Rome Statute defines apartheid in Article 7, paragraph 2(h) as: ‘inhumane acts…committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime’. [21]  Rome Statute of the International Criminal Court, Article 7(a). [22] The number of 270 adult women and juvenile detainees does not factor in the numerous children who are also detained with their mothers in Pul-e-Charkhi. This was also self-reported data given to the writer by prison officials. [23] Kimberley Motley, ‘Moral Offenses: The Detention of Women in Afghan Prisons’ Afghan Review  (8 December 2012). [24] UN Affairs, ‘World News in Brief: Abused Afghan women face prison, UNICEF global alert, deadly mpox resurfaces in DRC’ ( UN News , 15 December 2023) < https://news.un.org/en/story/2023/12/1144837 > accessed 10 March 2024. [25] Rome Statute, Article 7 Crimes Against Humanity. [26] These numbers are based on self-reported data and a review of documents of sixty-three (63) detainees or roughly 23.3% of the female prison population at Pul-e-Charkhi as of 7 October 2023. [27] Special Decree issued by the Taliban Leader on Women’s Rights, Decree Number 395, 3 December 2021, available at < https://twitter.com/Zabehulah_M33/status/1466662484375326720 > accessed 11 June 2023. [28] Constitution (n 5)  Article 130. [29] It is important to note that this writer received self reported data from 21.8% of the female detainees at Pul-e-Charkhi. It is very possible that female detainees are receiving sentences longer than two years. [30] Shinwari (n 13). [31]  Out of concern for the safety of this Afghan woman, the pseudonym of Amina will be used. [32] Motley (n 23). [33] ibid. [34] These numbers are based on self-reported data of 19 detainees or roughly 7% of the female prison population at Pul-e-Charkhi as of 7 October 2023.  [35] Kimberley Motley, ‘The Immortality of Afghanistan’s “moral crimes”’ ( The Washington Post , 20 January 2021) < https://www.washingtonpost.com/opinions/the-immorality-of-afghanistans-moral-crimes/2012/01/04/gIQAFVyeEQ_story.html > accessed 10 March 2024. [36] There is also overwhelming evidence to support the de facto government of Afghanistan being charged with crimes against humanity as regards treatment of the men and boys currently being held at Pul-e-Charkhi. However, this paper has focused on the women, girls, and juveniles held at Pul-e-Charkhi because of the data that I was able to collect with regards to those groups.

Introduction   The epitome of the 21st century’s Russian war against Ukraine manifested itself in Vladimir Putin’s speech on the morning of 24 February 2022.[1] In his address, the Russian President announced a series of wars against the collective West and the sovereign state of Ukraine. The massive Russian military attack on Ukrainian land, air, and sea was presented to the Russian public as ‘a special military operation’. According to President Putin, ‘The purpose of this operation was to protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the Kiev regime. To this end, we will seek to demilitarize and denazify Ukraine, as well as bring to trial those who perpetrated numerous bloody crimes against civilians, including against citizens of the Russian Federation’. Putin’s bold statement was uttered notwithstanding the facts that, during those eight years, Russia had annexed Crimea and effectively occupied Donbass, two Eastern regions of Ukraine.[2] The Russian government machine failed, however, to gain control over the Ukrainian government and the Ukrainian people beyond the occupation borders.[3]   Arguably, the full-scale Russian invasion, accompanied by an overwhelming scale of atrocious crimes against the Ukrainian nation, creates a ‘context of a manifest pattern of similar conduct directed against’ the Ukrainian nation to destroy it as such, in whole or in part, within the meaning of the crime of genocide.[4] The thesis of this essay is that such a manifest pattern includes a crime that could itself affect such destruction ie the forcible transfer of children of the group to another group (from Ukraine to Russia or Russian-controlled territory).   It is uncontested that since 2014, and later, after February 2023 on a larger scale, a substantial number of Ukrainian children have been transferred, under the control of the Russian authorities, from their homes or places of residence to the territory of the Russian Federation or to the Ukrainian regions under Russian occupation.[5] Based on an analysis of Russian law and the reports of public officials in the field of education and children’s rights, the necessary conclusion is that all such acts were carried out by the state’s centralized system of governance under the control and leadership of President Putin. It is posited that such actions reflect the intent to destroy the nation of Ukraine and eliminate its identity as a separate entity from Russia.   On 17 March 2023, the Pre-Trial Chamber of the International Criminal Court issued arrest warrants for Mr Vladimir Putin and Ms Maria Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation. They both are allegedly responsible for ‘the war crime of unlawful deportation of the population (children) and that of unlawful transfer of the population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute)’.[6]   The criminal acts committed by the Russian authorities concerning the deportation of civilians and forceful transfer of the civilian Ukrainian population during ongoing international armed conflict indeed constitute a breach of International Humanitarian Law and fall under the category of war crimes.[7] The thesis, then, is that the forceful transfer of Ukrainian children constitutes a crime of genocide against the Ukrainian nation. The motive behind the intent of Russian official policies, as well as the coordinated work of the Russian state and society on indoctrination and assimilation of the Ukrainian children within the occupied territories and after their transfer to Russia, are more egregious than war crimes. The consequences of deporting and forcibly transferring Ukrainian children, arising from alleged war crimes, serve not as the ends themselves but as deliberate means to inflict deeper and more extensive destruction upon the Ukrainian nation. The evil of this crime reaches beyond the tragedy of war crimes and crimes against humanity, as it changes in a planned, organized, systematic, holistic, and methodical way the trajectory of the ultimate destruction of the Ukrainian nation as such. It is, therefore, crucial to test and apply the concept of the crime of genocide to the facts and evidence of the forcible transferring children of the group to another group, as it is defined in the Rome Statute.[8]   The Calamity of the Russian Rhetoric   The Ukrainians sensed the genocidal intent of Russia to destroy their nation in every neuron of the collective mind and memory. History repeats itself: the genocide of the Ukrainian nation has once again become a tool of Russian expansion and exercise of power.[9] This time, it aims at the restoration of the power of the USSR, at gaining control over political processes in Eastern Europe, and at the reestablishment of the status quo ante vis-a-vis the USA and the collective West. Russian hegemony can only be possible with a subjugated Ukrainian nation, a defeated Ukrainian state, and full integration of Ukrainian territories and the remaining people into the Russian Federation. Since the day of President Putin’s speech on 24 February 2022, the word genocide has become one of the key terms of the Russian war in Ukraine.[10] Russian propagandistic official and unofficial narratives already make claims about the historical, ethnic, religious, and political unity of Russians and Ukrainians.[11] The Russian attack on the Ukrainian nation is so extensive that it denies its whole existence as a distinct ‘stable’ group, as constituted in a permanent fashion, and as protected by international law as a national group.[12]   Admittedly, Russian rhetoric is consistent, and the Russian disinformation toolbox has remained the same since the early 2000s. Russian labelling of the Ukrainian population as either Nazis or, in the case of the Russian-speaking population, victims of Nazis, sounded outlandish in the early 2000s to such an extent that such claims were ignored. In 2014, however, it became alarming and disturbing as it served as Russia’s narrative for the annexation of Crimea and the occupation of Donbass. In early 2022, this narrative transmogrified into a chilling reality.[13] Unfortunately, the revealed truth of Russian atrocities requires us to understand that when Russians accuse others of genocide, it is their intention to perpetrate it.   The term ‘special military operation’ vs.  the armed conflict (war), which likely would be perceived as international by ordinary people, underlies the idea of the unity of the Russian state and the Ukrainian territories, with Russian and Ukrainian people as one nation. The concept of ‘special military operation’ domesticates the issue, narrowing it to Russian internal affairs, channelling public hate against the Russian propaganda’s fictional group of the ‘Ukrainian Nazis’ and the acting government of Ukraine, which is also viciously called the ‘Kievan junta’.[14]    The propagated illusion of unity also blurs, in the eyes of the Russian perpetrators, the understanding of the affiliation of Ukrainians with the Ukrainian nation as the protected group. So, in the crime of the forceful transfer of children, the concept of ‘membership’ or belonging of the victims to another group is purposefully compromised. The intricacy of Russian propagandistic rhetoric shifts the blame for the committed atrocities onto the demonized Ukrainian government and the Ukrainian armed forces. In this respect, it’s a far-reaching policy, as it protects Russian propagandists from the accusation of the allegedly committed crime of genocide against the Ukrainian nation. Putin’s speech, as well as other related statements,[15] has become a subject of multiple studies and analyses made by Ukrainian and international lawyers, historians, political scientists, diplomats, and many more. [16]   For obvious reasons, the term genocide has not been taken lightly, especially by lawyers. Despite the scale and gravity of crimes committed in Ukraine by the Russian armed forces against the civilian population, such as killing, torture, rape, sexual violence, arbitrary detentions, extrajudicial execution, forced disappearances, deportation, destruction of property, attacks on critical infrastructure, educational, and healthcare institutions, and overall indiscriminate air bombardment of Ukrainian cities,[17] lawyers have been very careful in describing these atrocious acts as the crime of genocide. The discussion shifted, however, after the reports on the deportation and forced transfer of Ukrainian children to the Russian Federation and to the annexed Crimean peninsula.   As reported by Ukrainian authorities and as stated by Russian government officials, the transfers of children have been followed by adjusted procedures for the adoption of Ukrainian children in Russian families, simplified naturalization procedures for acquiring Russian citizenship, as well as overall systematic efforts toward russification and re-education of young Ukrainians.   The overwhelming evidence of crimes committed under Russian governance in the occupied territories of Ukraine since February 2014 proves that the forceful transfer of Ukrainian children and their russification have been committed in an ‘emerging pattern’ of the destruction of schools and other educational institutions, cultural and historic sites, and places of worship.[18] Ukrainians were also discriminated against and prosecuted for their association with Ukrainian identity and loyalty to the Ukrainian state. There is voluminous evidence of arbitrary detention, rape and torture, extrajudicial killings, and other atrocities based on that premise.[19] The attack on the Ukrainian language manifested itself in the destruction of Ukrainian books and textbooks, renaming streets in occupied cities, and imposition of the Russian curriculum and cultural artefacts.[20]   The crime of genocide presents complex issues to prove, besides its actus reus  against a protected group. The definition per se  requires proof of the perpetrator’s specific intent to destroy such group in whole or in part. A comprehensive analysis of the crime of genocide against the Ukrainian nation was done by scholars of the National University of Kyiv-Mohyla Academy (Ukraine).[21] The article will focus on the motive behind the Russian genocidal intent and will point out some official policies and reforms of Russian legislation that provide evidence of such intent.   More than Words   Understanding the motive behind the forcible transfer of children from one group to another is essential for recognizing and defining genocidal intent. The Russian government and public authorities historically rely on oppressive authoritarian and dictatorial regimes. Mass killings, starvation (the Holodomor of 1932-1933), deportations to and transfers of people within the USSR, persecutions, discrimination, russification, red terror, and other acts that today are considered international crimes, changed the demographics and, ultimately, the cultural, economic, and social structure of modern Ukraine.[22] The consequences of Soviet Russia’s crimes and atrocities not only resulted in the accumulation of power during the Soviet era, but also adversely influenced neighbouring states, including Ukraine.   Russian state-building traditions prove that consistent, widescale, and multifaceted annihilating and oppressive policies, along with propagandistic ideological narratives and beliefs, bring desirable outcomes for the oppressive government in transforming social fabrics and reaching identified long-term political goals. The oppressive and genocidal methods secured the union of the former socialist republics in the past, and presently they are being employed to bring back the power of the former USSR to modern Russia.[23]   Russian genocidal intent reveals itself not only in speeches of Russian public officials and propagandistic enthusiasts but also in the capacity-building processes established to absorb and assimilate children from Ukrainian territories. Such intent emerged first, from annexed Crimea, later from the Donetsk People’s Republic (DNR) and Luhansk People’s Republic (LNR) (2014 and onwards), and finally, from other territories temporarily occupied by Russia, such as Zaporizhia and Kherson (2022 and onwards). The Russian officials indicated that in one year after the full-scale invasion, over 5.3 million persons, including an astounding 738,000 children, arrived in the territory of the Russian Federation from the territory of Ukraine.[24] The report of the Russian children’s rights commissioner lists 1,500 orphans from Donetsk and Luhansk regions, 380 of whom have since been adopted by Russian parents.[25] Even though the numbers are contested, Ukraine confirms the deportation or forced displacement of 19,546 children.[26] The exact number of forcefully transferred children and their whereabouts, however, are impossible to ascertain and verify.   The transfer of Ukrainian children began after the annexation of Crimea. On 14 October 2024, the Crimean occupation authorities joined the Russian social project, ‘Train of Hope’, and became an integrated part of the Russian database of orphans and children with no parental care.[27] Thus, a child from Crimea could be adopted or placed with foster parents as a Russian citizen by a Russian family from any part of Russia, according to Russian family law. The first ‘Train of Hope’ brought to Crimea ten families with official permits to adopt Ukrainian children. The families were from Moscow and Moscow region, Samara, the Republic of Komi, Bashkiria, Chelyabinsk, and Volgograd regions. According to the Representative of the President of Ukraine in the Autonomous Republic of Crimea, more than 1,000 children might have been thus displaced from Crimea to various parts of the Russian Federation within the ‘Train of Hope’ initiative.[28] The first widely publicized massive displacement of Ukrainian children occurred on 18 February 2022. By that time, Russia had amassed more than 100,000 troops, artillery, and tanks at the border of Ukraine.[29] A governor of Donetsk People’s Republic (DNR) announced evacuation for safety reasons, which began with the transfer of 225 orphans from Donetsk.[30] Since 2014, the occupation powers of the DNR and LNR hindered any efforts taken by the administrations of the orphanages or foster families to evacuate to the territory under Ukrainian control. Instead, they forcefully transferred some of them to Russia.[31]   The full-scale Russian invasion announced on 24 February 2022, started new waves of involuntary and forced transfers of children for ‘security reasons’. The children were transferred from Donetsk, Luhansk, Zaporizhia, and Kherson regions where active hostilities were taking place, were about to take place, or before the retreat of the Russian army.[32]   According to the OSCE, among the most indicated pretexts for the organized displacement of Ukrainian children are evacuation for security reasons; transfer for the purpose of adoption or foster care; and temporary stays in so-called recreation camps.[33] Each ground involves different legal means and methods of processing, as well as further placement of transferred children within the Russian Federation or to territories temporarily occupied by Russia. Forcefully transferred Ukrainian children can be adopted, and placed in a foster family, with custody, guardianship, and ‘patronage’, or they could be placed under the supervision of educational organizations, medical organizations, or organizations providing social services.   The legal procedures and the future path of children hinge on several crucial factors: the child’s status at the time of relocation—whether the child is an orphan or under parental care and the specific nature of that care; whether the child crossed the border accompanied or unaccompanied; the Ukrainian territory where the child resided and the child’s current health condition.[34] One of the determining factors for the course of events is the citizenship of the children, which must be the time of the transfer of Ukrainian citizenship or, citizenship of DNR or LNR, recognized by Russia.   The issue of naturalization lies at the core of the further assimilation of young Ukrainians in Russia. Russian occupation authorities are notorious for the so-called ‘passportization’ of Ukrainians in annexed Crimea, and later in Donetsk, Luhansk, Zaporizhia, and Kherson regions.[35] Acquiring Russian citizenship is extremely easy. Individuals living in the so-called new Russian territories, as well as those who previously lived there but left for Russia, acquire citizenship of the Russian Federation based on ‘recognition’, resulting from filing an application and taking the oath of a Russian citizen.[36]   On 30 May 2022, President Putin issued a Decree specifically addressing the simplified procedure of acquiring Russian citizenship for orphans, children left without parental care, and incapacitated individuals who are citizens of the Donetsk People’s Republic, Lugansk People’s Republic, or Ukraine. The decision on naturalization must be made within three months from the submission of the application, with exceptional circumstances allowing a term extension of not more than three months.[37]   On 26 October 2023, a new Federal Law ‘On Citizenship of the Russian Federation’ came into force.[38] According to the new law, birth citizenship can be granted to a child present in the territory of the Russian Federation whose parents are unknown. Children become citizens of the Russian Federation by birth if, within six months from the day they are found, it is not established that such a child has Russian Federation citizenship or citizenship of another state. To confirm the acquisition of Russian Federation citizenship by birth, a parent, guardian, trustee, or the head of an organization for orphans and children left without parental care applies to the territorial body of the federal executive authority of internal affairs, or a diplomatic mission, or a consular office for the acquisition of Russian Federation citizenship by birth.[39]   Children who are foreign citizens or stateless persons may be admitted to the citizenship of the Russian Federation if one of their parents (adoptive parents) is a citizen of the Russian Federation or acquires citizenship of the Russian Federation; if their sole parent (adoptive parent) is a citizen of the Russian Federation or acquires citizenship of the Russian Federation; if the child is under the guardianship or trusteeship of a citizen of the Russian Federation or a person acquiring citizenship of the Russian Federation; and finally, if the child is placed in a Russian orphanage or an organization for children without parental care.[40] Russian policies demonstrate the adjustment and creativity of the Russian government not only to accommodate transferred Ukrainian children in Russian families and educational institutions but also to naturalize Ukrainians in an extremely simplified manner. The new law vests the overall authority for granting citizenship in the Ministry of Internal Affairs and the Ministry of Foreign Affairs of the Russian Federation. This change notably reduces the processing time for relevant applications from one year to a mere three months. Concurrently, it expands the powers of the head of state to identify categories of individuals eligible for simplified citizenship acquisition.   The law has relaxed the criteria for granting Russian citizenship across more than 20 applicant categories. The law also introduces some new grounds for naturalization, such as ‘as a result of being recognized as a citizen of the Russian Federation’, encompassing a broader spectrum of former USSR citizens, including their close relatives; and also because of choosing Russian Federation citizenship during the change of the State border of the Russian Federation (optatio).[41] These novelties demonstrate Russian domestic preparedness to absorb and assimilate the Ukrainian population and increase the demographics of Russia at the expense of Ukraine. It also blurs the unity and uniqueness of the Ukrainian nation as a separate national group, as defined by international law. There could be hundreds of Ukrainian children under 14 years of age whose applications are pending for acquiring Russian citizenship by birth, simply because their Ukrainian parents, families, or guardians lost touch with them due to hostilities or other circumstances. Regardless of the ground for naturalization, the imposition of Russian citizenship is a breach of the norms and principles of International Humanitarian Law.   The concept of nationality is essential for the definition of ‘protected persons’. The Geneva Convention IV and the Additional Protocol I prohibit the evacuation of children ‘other than their own nationals, to a foreign country except for a temporary evacuation where compelling reasons for the health or medical treatment of the children or, except in occupied territory, their safety, so require’. It also requires that such evacuations ‘shall be supervised by the Protecting Power in agreement with the Parties concerned, namely, the Party arranging for the evacuation, the Party receiving the children, and any Parties whose nationals are being evacuated’.[42]    The law assumes that children must be returned to their families and country, requiring the authorities of the receiving country (Russia) to cooperate closely with the Central Tracing Agency of the International Committee of the Red Cross (CTA ICRC). None of these requirements have been satisfied by the Russian authorities. Russia rejected the Protecting Power mandate agreed upon by Switzerland and Ukraine; there is no neutral Protecting Power that would supervise the transfer of Ukrainian children, even on the basis of evacuation for safety reasons. Russia refuses to transfer the list of evacuated children to the CTA, and there is no evidence that Russia keeps track of Ukrainians who find themselves under the jurisdiction of Russian authorities during the armed conflict, as required by Geneva Conventions III and IV, through the ‘National Information Bureaux’. It is not clear whether Russia even established such bureaux.[43] In any case, there is no proactive way to find the children whose names are changed or even translated and spelt in the Russian language. Russian officials have consistently and irresponsibly refused to cooperate in disclosing the list of names of transferred children and their whereabouts, both with the Ukrainian government and relevant international organizations.[44] Such practices, of course, are traumatic for family members searching for their children. With cynical irony, Russian policies are strategically focused on the humanization and heroization of the Russian government and individuals involved in the transfer and placement of Ukrainian children in Russian families and educational institutions. The glorification of those individuals goes hand in hand with the demonization of Ukrainian authorities and armed forces.   The objective is to garner sympathy and social support from the Russian people for the integration of Ukrainian children into the social fabric of Russia. To further this agenda, new incentives for adoption and foster care by Russian families are being introduced to the public and extensively promoted by the government.[45] In a seemingly orchestrated benevolent gesture, Russian children’s ombudsman, Maria Lvova-Belova adopted a Ukrainian boy from Mariupol, who acquired Russian citizenship in September 2022.[46] While presented as an act of goodwill, this adoption serves as a strategic move within the broader narrative of the Russian government. Far from being purely a humanitarian act, it aligns with Russia’s calculated and shrewd approach to shaping public perceptions to advance its geopolitical interests. This adoption, carefully portrayed as benevolence, is, in reality, a manifestation of the Russian government’s manipulating strategies. It exemplifies the mobilization and engagement of every level of Russian social structure in the assimilation of Ukrainian children, while also attempting to set an example that the adoption and naturalization of Ukrainian children is a noble cause.   The Fight for Minds and Souls   During the Soviet era, all children, depending on their age, became members of a children and youth socialist organization. Membership was compulsory, as these organizations were integral to the education system, public, and controlled by the Soviet government and the Communist Party. The youngest students became ‘Little Octobrists’ at the age of 7; at 9, they became pioneers; and, at 14, they had the right to join Komsomol. Education and upbringing were equally important parts of the Soviet educational system, with the state almost replacing parents as the primary educators. Archival documents listing the tasks of the pioneers emphasized the need to ‘pay more attention to the work of pioneers in the family, especially in terms of their relationships with parents’.[47]   Afterschool hours and extracurricular education were subjects of multiple policies and legislation. Not coincidentally, recent amendments to the Russian Federal Law on education edited the principles of state policy and legal regulation, emphasizing ‘the unity of education and upbringing, educational space within the territory of the Russian Federation’.[48]   A significant aspect of Soviet education was the system of pioneer camps, aiming to discipline children, instil obedience to the system, and cultivate the ‘correct’ worldview.[49] There is a strong shift in Russia toward Soviet methods of education and overall upbringing, with President Putin and government officials admiring and glorifying Soviet policies. Moreover, the return to certain Soviet systems and practices has been stated as a goal.   My personal memories of the Soviet times still have a paralyzing effect. In the 1980s, the pervasive sense of belonging to the socialist system was overpowering, given the complete absence of alternatives. What’s more, there was scarcely any acknowledgment that alternatives could exist. Every aspect of one’s existence, from aspirations to creativity, was subject to the dictates of this ideological hierarchical structure. Each successive post-war generation grew increasingly homogenized, earnestly embracing socialist ideals and celebrating Soviet triumphs with each passing year.   The lines between private and public spheres blurred, often being deemed irrelevant, or even harmful. Public interests and collective endeavours, all subservient to socialist doctrine, were deemed paramount. This mindset was cultivated, disseminated, and regulated through a meticulously structured hierarchy. Within schools, each class operated as a squad, complete with its own council and leader. Every educational institution appointed a senior pioneer leader and a Komsomol organizer, while Komsomol and communist party units were ubiquitous. Furthermore, a clandestine network of informants operated at every level of society.                               Children raised in families of intellectuals and dissidents who were exposed to knowledge about alternative social systems, such as the possibilities of the Western world or the hidden truths about Ukrainian history concealed by the Soviet education system, were taught the delicate art of discerning what could be safely discussed outside the confines of their homes. They became adept at navigating the dichotomy between the information deemed acceptable within the Soviet school or society and the realities they were privy to at home. Failure to properly navigate this divide risked punitive measures at school, with potential repercussions extending to parents’ workplaces.   Collective condemnation and ostracism were commonplace methods of exerting control over both children and adults, depending on the perceived transgressions. Disciplinary breaches or forbidden expressions often resulted in public humiliation during assemblies, with classmates enlisted to strip the offender of their pioneer tie as a powerful symbol of scorn, signalling their unworthiness of the honour. Such practices, akin to violence, bullying, and social exclusion in more civilized contexts, were considered dutiful acts within Soviet institutions.   All of these experiences might have remained mere memories, yet tragically, Ukrainian children in Russia or its controlled territories endured even harsher circumstances. The sole variance lies in the ideology: where once socialism and communism held sway, they have been supplanted by the notion of Great Russia and the unique responsibility ascribed to the Russian populace in the struggle against the Nazis, spanning from 1941-1945 and beyond.   On 14 July 2022, President Putin signed into law ‘On the Russian Children and Youth Movement’.[50] The movement was named ‘Movement of the First’.[51] It is an all-Russian public-state movement with a wide spectrum of objectives, such as implementing state policies for the benefit of children and youth, fostering upbringing, and professional orientation, organizing leisure activities, creating equal opportunities for comprehensive development, and preparing children and youth for full-fledged life in society. It is a hierarchical system parallel to the state’s educational system, with structural units established in each constituent entity of the Russian Federation, municipal entities, and educational institutions. Primary branches can also be established in organizations for orphans and children left without parental care.[52]   In December 2023, the Oversight Council of ‘The Movement of the First’ held its second in-person meeting, presided over by President Putin. The Council unanimously adopted ‘The Educational Program of the Movement of the First’, a decisive step towards creating a ‘unified educational space—a comprehensive ecosystem encompassing all stages of a child’s growth throughout the country’.[53] In this ‘unified educational space’, those familiar with the Soviet system recognize a society that shows no mercy to perceived enemies or their affiliates, while remaining intolerant of dissenting views or differing beliefs. Indeed, according to Natalia Mandrova, the First Deputy Chairperson of the Board, ‘The Program incorporates modern pedagogical approaches and solutions, merging them with the finest traditions of the children’s pioneer movement: volunteerism, military-patriotic training, youth activities, tourism, and creative pursuits’.   The significance of this program is underscored by the involvement of key figures such as Minister of Education Sergey Kravtsov and Head of the Federal Agency for Youth Affairs (Rosmolodyozh) Ksenia Razuvayeva. They, along with President Putin, deliberated on shaping the program for students in primary education, known as ‘Eaglets of Russia’, marking the initial stage of joining the ‘Movement of the First’. Additionally, discussions unfolded regarding the establishment and functioning of coordination councils to facilitate interaction with ‘the Movement of the First’ under the Governors of regions in Russia.[54] This development mirrors a centralized and pro-Soviet approach, as the Russian state actively influences and regulates various aspects of children’s leisure and extracurricular activities.   The system of education and educational activities also underwent some adjustments. On 5 April 2021, President Putin signed the law on amendments to the federal law on education. The law was dedicated to so-called enlightenment activities beyond the educational programs. The foci of such activities are ‘educational outreach’ or ‘public education’. In the Russian press, the law was referred to as ‘the law on enlightenment’. The law specifies that educational activities are carried out by state bodies, other government agencies, as well as local government bodies and their authorized organizations. Larisa Tutova, Deputy Head of the State Duma Committee on Education and Science, noted in a conversation with TASS that, according to the amendments, educational institutions are prohibited from entering into any international agreements without the approval of relevant ministries. This innovation applies to extracurricular and university programs According to her, the authors of the law primarily aimed to ‘safeguard educational institutions from propagandistic activities conducted by international anti-Russian circles under the guise of education’.[55]   In 2022, President Putin directed the government to overhaul approximately 1,500 stationary children’s camps by 2030, alongside a surge in the number of tent camps from 443 to 1,000. Alla Salaeva, a member of the State Duma Committee on Tourism and the Development of Tourist Infrastructure, suggested ‘military-patriotic’ activities should be part of the ‘substantive component’ of camp programs.[56] These recreation camps played a significant role in the forceful transfer of Ukrainian children to Russia and annexed Crimea, involving their re-education, indoctrination, and abidance.   A report from the Yale School of Public Health identified 43 facilities across the Russian Federation where Ukrainian children were placed,[57] with the Russian government proudly acknowledging their transfer and acceptance of children from Donbass and occupied territories.[58] Although the exact number is unknown, the Yale report estimates that approximately 6,000 children were transferred. [59] Children of various categories were sent to these camps for varying durations, and some were transferred between camps during their stay in Russia.   The majority of available information is sourced from Russian state media, social media platforms, witness testimonies, and accounts provided by children who managed to return, along with their parents. Some of the contested issues revolve around whether the transfer can be considered forceful, particularly when parents or legal guardians provide permission or enrolled a child in such recreation camps. Conclusions must be drawn through a case-by-case analysis, considering the examination of duress, often induced by the Russian armed forces, and local occupation authorities, including schools and other educational institutions.   The practice of sending children for a temporary stay in recreation camps, both in Crimea and Russia, dates back to the annexation of Crimea. The challenges in the return of children to their homes or their relocation within the Russian Federation, coupled with the lack of information about their whereabouts, however, became a disturbing and troublesome phenomenon, particularly intensifying to an extreme level after February 2022.[60]   Personal pressure, intimidation, and children’s re-education, which raises significant legal concerns and supports arguments about the forceful nature of their transfer and deportation.[61] Multiple pieces of evidence suggest that Ukrainian children underwent re-education, acculturation, and indoctrination processes. Russia’s claim of treating these children as their own is inherently anti-Ukrainian, given the overall context of Russian aggression, belligerent occupation, war crimes, and propaganda. Russian propaganda shifts blame and accusations to Ukrainians, creating a distorted narrative. For children, especially young ones, contextualizing events is challenging, if not impossible.   Placing Ukrainian children under Russian education and enlightenment programs in recreational camps, schools, or educational institutions represents a potent assault on the child’s national identity. Russian pedagogy, counselling, and extracurricular activities, including military applied courses,[62] are politicized with the explicit intent of erasing Ukrainian national cultural patterns and substituting them with Russian state ideology. The so-called Russian educational space also extends over the occupied territories. In the summer of 2022, Minister of Education Sergey Kravtsov announced the transition of schools in DNR and LNR to Russian educational standards. According to his statement, the transition from Donbass schools to Russian educational programs will take five years. In early August, the ministry reported that the full delivery of Russian textbooks to the DNR would be carried out by 1 September 2022.[63] Russian education and upbringing methods within Russian jurisdiction and de-facto  control are designed to acculturate Ukrainian children, ultimately transforming them into unwitting components of the Russian social and demographic fabric.   Conclusion   The scale and overall capacity of the Russian public authorities to absorb hundreds of thousands of children with re-education policies in place are evidence of the intent of the Russian President and the members of the Russian government to destroy the Ukrainian nation, simultaneously de facto  creating a nation that exists in Russian myth. The ongoing propagandistic narrative that Russians and Ukrainians are the same people[64] creates a distorted reality and makes it difficult to apply international law.   In connection with other unlawful acts committed by Russians since March 2014, the overall logistics, integration, adoption, and propagandistic assimilation of Ukrainian children into Russian society have been carried out as part of a larger systematic and deliberate plan to destroy the Ukrainian national identity. The aim is to detach the sense of belonging of a child to the Ukrainian nation and, instead, to create a new identity, the child becoming a loyal member of Russian society who absorbs Russian hate against the Ukrainian nation and its political power. Dehumanization of the Ukrainians and demonization of the Ukrainian government and the Ukrainian armed forces are necessary tools for the shift of the child’s identity, which also affects adult Ukrainians. Such a shift is designed to have a gradual effect, from gratitude and appreciation of the Russian people to loyalty toward the Russian state and animosity against the Ukrainian state. The optics of victimization are distorted, as there is little or no memory and personal experience on which a child can rely to resist.   Characterization of Ukrainian children as victims of war crimes supposedly committed by the Ukrainian armed forces and being saved by Russians is intended to reinforce Russian strategic narratives and ultimately the sense of the Russian mission, among which are hate and the sacrifice required by the fight with the Ukrainian army and ‘Ukrainian Nazis’.   Russian schools, summer camps, and a variety of children’s and youth organizations, some of which are newly established, create for all children an environment of unity, solidarity, and a sense of obligation to protect and defend Russia from Ukrainians. Dreadfully, with the help of the Ukrainian children, Russian official policy is creating a genocidal mindset against people who identify themselves as Ukrainians. Naturally, the scale of trauma imposed on Ukrainian children in this Russian environment might only be overcome by denial of their Ukrainian ancestry and identity. Such dissociation will likely lead even further to animosity against Ukrainians. In any case, it is predictable that the status of Russian citizenship will oblige forcefully transferred and deported Ukrainian children in the future to fight on the side of Russia in its genocidal war against the Ukrainian nation.   Beyond the disruptive and long-lasting impact of this crime on the social fabric of the Ukrainian nation, potentially destroying it in whole or in part, it is also intended to have a long-lasting effect on the social, political, and cultural fabric of Russian society. It allows the Russian government to manipulate victims in the future and to maintain a heightened level of tension, animosity, hate, confusion, and disarray toward the Ukrainian nation within Russian society for generations to come.   It is indeed alarming how the Russian attacks on the Ukrainian nation align with the description of genocide by Rafael Lemkin:   Genocide has two phases: one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population which is allowed to remain or upon the territory alone, after removal of the population and the colonization by the oppressor’s nationals.[65]    The brainwashing of kidnapped, innocent Ukrainian children is a particularly odious form of genocide. Iryna Zaverukha Iryna Zaverukha is a lecturer in law at the University of Southern California’s (USC) Gould School of Law. She is also an adjunct associate professor of law at Southwestern Law School. She earned her J.D. from Ivan Franko L’viv National University (LNU); LL.M. from USC Gould; Ph.D. from Taras Shevchenko Kyiv National University; and S.J.D. from the Institute of Legislation of the Verkhovna Rada of Ukraine. She has taught Public International Law and International Criminal Law at LNU, Ukrainian Catholic University and Kuwait International Law School. She served as Deputy Dean of the Law School and, later, as Chair of the Administrative and Financial Law Department, at L’viv National University in Ukraine. [1]  Address by the President of the Russian Federation,  24 February 2022. < http://en.kremlin.ru/events/president/news/67843 > accessed 10 March 2024. [2]   Ukraine and the Netherlands v. Russia  ECtHR 43800/14, 8019/16 and 28525/20 – Legal Summary on the Effective control over the relevant parts of the Donetsk and Luhansk regions: ‘The Court held, on the basis of the vast body of evidence before it, that Russia had effective control over all areas in the hands of separatists from 11 May 2014 on account of its military presence in eastern Ukraine and the decisive degree of influence it enjoyed over these areas as a result of its military, political and economic support to the ‘DPR’ and the ‘LPR’. In particular, the Court found it established beyond any reasonable doubt that there had been Russian military personnel present in an active capacity in Donbass from April 2014 and that there had been a large-scale deployment of Russian troops from, at the very latest, August 2014. It further found that the respondent State had a significant influence on the separatists’ military strategy’. [3]  Iryna Zaverukha, ‘Terra Incognita on the Map of Europe: Crimea and the Donetsk and Luhansk Regions ’ (2017) 15 (Europe Update, Ukraine Special Edition) ABA Section of International Law 3. [4] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, entered into force July 1, 2002, art. 6.  The Elements of Crimes adopted at the 2010 Review Conference are replicated from the Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May-11 June 2010 (International Criminal Court publication, RC/11) Article 6 (e)(7): ‘The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction’. [5]   Organization for Security and Co-Operation in Europe, Office for Democratic Institutions and Human Rights, ‘Report on Violations and Abuses of International Humanitarian and Human Rights Law, War Crimes and Crimes Against Humanity, Related to the Forcible Transfer and/or Deportation of Ukrainian Children to the Russian Federation’ ( OSCE , 4 May 2023) < https://www.osce.org/odihr/542751 > accessed 17 December 2023. According to this, the number of the children ‘displaced to the temporarily occupied territories or to the territory of the Russian Federation remains disputed but both the Russian Federation and Ukraine indicate figures amounting to hundreds of thousands of children, including however both children with and without their parents or other legal guardians’ (12). Russian government officials announced that, from February 2022 to February 2023, over 5.3 million persons, including 738,000 children, arrived in the territory of the Russian Federation from the territory of Ukraine. The Commissioner for Human Rights of the Verkhovna Rada of Ukraine Dmytro Mr Lubinets suggests that the ‘number of children could amount to some 150,000’ (12). [6]   Office of the Prosecutor, ‘Statement by Prosecutor Karim A. A. Khan KC on the issuance of arrest warrants against President Vladimir Putin and Ms Maria Lvova-Belova’ ( ICC News , 17 March 2020) < https://www.icc-cpi.int/news/statement-prosecutor-karim-khan-kc-issuance-arrest-warrants-against-president-vladimir-putin > accessed 17 December 2023. [7]  Rome Statute (n 4) art. 8 . [8]  ibid art. 6 8 . [9]  Victoria A Malko, The Ukrainian Intelligentsia and Genocide: The Struggle for History, Language, and Culture in the 1920s and 1930s  (Lexington Books 2023) ; Anne Applebaum, Red Famine: Stalin’s War on Ukraine (Knopf Doubleday Publishing Group 2018). [10]  IC J, ‘ Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening) ’ < https://www.icj-cij.org/case/182 > accessed 17 December 2023; Hannah R Garry, ‘For victims in Ukraine, saying “genocide” does matter’, ( The Hill , April 30, 2022 ) < https://thehill.com/opinion/international/3472617-for-victims-in-ukraine-saying-genocide-does-matter/ > accessed 17 December 2023; Douglas Irvin-Erickson, ‘Is Russia Committing Genocide in Ukraine?’ ( Opinio Juris , 24 April 2022 ) < http://opiniojuris.org/2022/04/21/is-russia-committing-genocide-in-ukraine/ > accessed 17 December 2023. [11]  ‘Медведев считает, что “по-честному” Украина - это часть России’ ( TASS , 22 March 2023) < https://tass.ru/politika/17346043 > accessed 17 December 2023: Петр Акопов, ‘Россия отвечает за Украину’ ( RIA Novosti , 26 March 2023) < https://ria.ru/20220326/otvetstvennost-1780162615.html?in=t > accessed 17 December 2023. [12]   Prosecutor v. Akayesu  (Judgment) ICTR-96-4-T (2 September 1998) < https://ucr.irmct.org/scasedocs/case/ICTR-96-04#eng > accessed 10 March 2024. The case construed the characteristics of the groups protected by the Genocide Convention in the context of the forcible transfer of children of the group to another group: ‘On reading through the travaux préparatoires of the Genocide Convention, it appears that the crime of genocide was allegedly perceived as targeting only “stable” groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more “mobile” groups which one joins through individual voluntary commitment, such as political and economic groups. Therefore, a common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner…[N]ational group is defined as a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties’ (511-2). [13]  Тимофей Сергейцев, ‘Что Россия должна сделать с Украиной’ ( RIA Novosti , 3 April 2022) < https://ria.ru/20220403/ukraina-1781469605.html > accessed 17 December 2023; Mariia Krachenko, ‘What should Russia do with Ukraine?’ ( The Medium , 4 April 2022) < https://medium.com/@kravchenko_mm/what-should-russia-do-with-ukraine-translation-of-a-propaganda-article-by-a-russian-journalist-a3e92e3cb64 > accessed 17 December 2023; Timothy Snyder, ‘Russia’s genocide handbook: The evidence of atrocity and of intent mounts’ ( Substack , 8 April, 2022 ) < https://snyder.substack.com/p/russias-genocide-handbook > accessed 17 December 2023. [14]  ‘Путин назвал новые киевские власти хунтой’ ( T VC , 24 April 2014 ) < https://www.tvc.ru/news/show/id/38139 > accessed 17 December 2023; Eva Binder and Magdalena Kaltseis, ‘Odessa 2014: Alternative News and Atrocity Narratives on Russian TV’ in Peter Deutschmann, Jens Herlth, and Alois Woldan (eds), »Truth« and Fiction: Conspiracy Theories in Eastern European Culture and Literature  (transcript Verlag 2020) 185-210. [15]  Address (n 1); Vladimir Putin, ‘Об историческом единстве русских и украинцев’ [‘On the Historical Unity of Russians and Ukrainians’] ( Kremlin , 12 July 2021)  < http://kremlin.ru/events/president/news/66181 > accessed 17 December 2023. Vladimir Putin, ‘Speech To the deputies of the State Duma, members of the Council of the Federation, Leaders Of the Regions Of the Country, and Representatives of the Civil Society Related to the Address of the Republic of Crimea and Sevastopol on Annexation to the Russian Federation’ ( Kremlin , 18 March 2014) < http://www.kremlin.ru/events/president/news/20603/videos > accessed 17 December 2023. [16]  Oksana Dudko, ‘A conceptual limbo of genocide: Russian rhetoric, mass atrocities in Ukraine, and the current definition’s limits’ (2022) 64(2-3) Canadian Slavonic Papers  133; Alexander Etkind , ‘Ukraine, Russia, and Genocide of Minor Differences ’ (2023) 25(3-4) Journal of Genocide Research  384. [17]  ‘Report on the Human Rights Situation in Ukraine: 1 August to 30 November 2023’ ( UNCHR , 12 December 2023) < https://ukraine.un.org/sites/default/files/2023-12/2023-12-12%20OHCHR%2037th%20Periodic%20Report.pdf > accessed 17 December 2023 ; ‘The Reckoning Project’  < https://www.thereckoningproject.com > accessed 17 December 2023 is a collection of witness testimonies from sites of human rights violations, war crimes, and atrocities compiled by the team of investigative journalists and lawyers. [18]  As of 13 December 2023, UNESCO had verified damage to 333 sites since 24 February 2022: 125 religious buildings; 29 museums; 146 buildings of historical and/or artistic interest; 19 monuments; 13 libraries; and 1 archive. UNESCO, ‘Damages and Victims’ < https://www.unesco.org/en/ukraine-war/damages-and-victims?hub=66116 > accessed 17 December 2023; ‘ Cultural Disaster: What Ukrainian Sites Were Destroyed by Russian Occupants’ ( Chytomo , 8 March 2022) < https://chytomo.com/en/cultural-disaster-what-ukrainian-sites-were-destroyed-by-russian-occupants/ > accessed 17 December 2023; ‘ Cultural destruction in Ukraine by Russian forces will reverberate for years, UN rights expert warns’ ( UN News , 25 May 2022) < https://news.un.org/en/story/2022/05/1119052 > accessed 17 December 2023. [19]  UNCHR (n 17); Iryana Lopatina, ‘“Dad, You Have to Come—Or We Will Be Adopted!”: One Ukrainian Family’s Harrowing Wartime Saga’ ( Vanity Fair , 6 October 2022) < https://www.vanityfair.com/news/2022/10/one-ukrainian-familys-harrowing-wartime-saga > accessed 17 December 2023. [20]   ‘ Ukraine/Russia: New history textbook is a blatant attempt to unlawfully indoctrinate school children in Russia and Russian-occupied Ukrainian territories ’ ( Amnesty International , 1 September 2023) < https://www.amnesty.org/en/latest/news/2023/09/ukraine-russia-new-history-textbook-is-a-blatant-attempt-to-unlawfully-indoctrinate-school-children-in-russia-and-russian-occupied-ukrainian-territories/ > accessed 17 December 2023; Oleksandr Pankieiev, ‘Weaponizing education: Russia targets schoolchildren in occupied Ukraine’ ( Atlanic Council , 20 September 2022) < https://www.atlanticcouncil.org/blogs/ukrainealert/weaponizing-education-russia-targets-schoolchildren-in-occupied-ukraine/ > accessed 17 December 2023; ‘Russia renames 86 streets named after Ukrainian figures in occupied Melitopol’ ( The Kyiv Independent , 5 February 2023) < https://kyivindependent.com/russia-renames-86-streets-named-after-ukrainian-figures-in-occupied-melitopol/ > accessed 17 December 2023. [21]  Denys Azarov, Dmytro Koval, Gaiane Nuridzhanian, and Volodymyr Venher, ‘Understanding Russia’s Actions in Ukraine as the Crime of Genocide ’ (2023) 21(2) Journal of International Criminal Justice 233–264 . [22]  Malko (n 9);   Council of Europe Commissioner for Human Rights , ‘ Crimean Tatars’ Struggle for Human Rights’ (18 April 2023) < https://rm.coe.int/report-on-crimean-tatars-by-dunja-mijatovic-commissioner-for-human-rig/1680aaeb4b > accessed 17 December 2023 ; Vladyslav Havrylov, ‘Mass Deportation of Ukrainians: From the USSR “Forge of National Unity” to Current Russian War Crimes’ ( War Ukraine ,  30 March 2023) < https://war.ukraine.ua/articles/history-of-mass-deportation-of-ukrainians/ > accessed 17 Dec ember  2023.   Nicolas Werth, ‘Mass Deportations, Ethnic Cleansing, and Genocidal Politics in the Later Russian Empire and the USSR’, in Donald Bloxham and A. Dirk Moses (eds), The Oxford Handbook of Genocide Studies   ( Oxford Academic 201 0) 386–406. [23]  Сергейцев  (n 13) ; Mariia Kravchenko, ‘What Should Russia Do with Ukraine? [Translation of a Propaganda Article by a Russian Publication]’ ( Medi um , 1 April 2022) < https://medium.com/@kravchenko_mm/what-should-russia-do-with-ukraine-translation-of-a-propaganda-article-by-a-russian-journalist-a3e92e3cb64 >  accessed 17 Dec ember  2023. [24]   OSCE (n 5) 12. [25]   ‘ 700K Ukrainian Children Transferred to Russia Since Invasion – Official’ ( Moscow Times , 31 July 2023) < https://www.themoscowtimes.com/2023/07/31/700k-ukrainian-children-transferred-to-russia-since-invasion-official-a82008 >  accessed 17 Dec ember  2023. [26]  Ukrainian State’s Portal for Missing and Displaced Children (as of December 17, 2023) < https://childrenofwar.gov.ua >  accessed 17 Dec ember  2023. [27]   ‘ Воспитанники крымских детских домов и ‘Поезд надежды’’ ( RIA , 20 October 2014) < https://ria.ru/20141020/1029097726.html >  accessed 17 Dec ember  2023. [28]   OSCE (n 5) 12. [29]  David Brown, ‘Ukraine conflict: Where are Russia’s troops?’ ( BBC News , 3 February 2022) < https://www.bbc.com/news/world-europe-60158694 >  accessed 17 De cember  2023; Shane Harris and Paul Sonne, ‘Russia Planning Massive Military Offensive Against Ukraine Involving 175,000 Troops, U.S. Intelligence Warns’ ( Washington  Post ,  3 December 2021) < https://www.washingtonpost.com/national-security/russia-ukraine-invasion/2021/12/03/98a3760e-546b-11ec-8769-2f4ecdf7a2ad_story.html > accessed 17 Dec ember  2023; UN, ‘Meeting Coverage: Situation along Russian Federation-Ukraine Border Can Only Be Resolved through Diplomacy, Political Affairs Chief Tells Security Council’ ( UN Press,  31 January 2022) < https://press.un.org/en/2022/sc14783.doc.htm > accessed 17 Dec ember  2023. [30]   ‘ Эвакуацию из ДНР начали с детей-сирот из школы-интерната в Донецке’ ( Interfax , 18 Feb ruary  2022) < https://www.interfax.ru/world/822971 >  accessed 17 Dec ember  2023; ‘В Донецке начали эвакуацию детей-сирот из школы-интерната’ ( Argumenty i Fakty , 28  February  2022) < https://aif.ru/incidents/v_donecke_nachali_evakuaciyu_detey-sirot_iz_shkoly-internata >  accessed 17 Dec ember  2023; Ivan Sysoev, ‘В первую очередь из ДНР и ЛНР эвакуируют интернаты и детские дома’ ( Rossiyskaya Gazeta , 28  February  2023) < https://rg.ru/2022/02/18/v-pervuiu-ochered-iz-dnr-i-lnr-evakuiruiut-internaty-i-detskie-doma.html >  accessed 17 Dec ember  2023. [31]  Olena Smirnova, ‘Оккупанты запретили эвакуацию детей на мирную территорию Украины’ (20 January 2022) < https://ltmedia.nsju.org/okkupanty-zapretyly-jevakuatsyiu-detej-na-myrnuiu-terrytoryiu-ukrayny/ >  accessed 17 De cember  2023. [32]   OSCE (n 5) 12; ‘ В Россию из Донбасса и с Украины эвакуировали более 22 тысяч человек’ ( RIA , 1 July 2022) < https://ria.ru/20220701/evakuatsiya-1799719398.html >  accessed 17 Dec ember  2023. [33] OSCE (n 5) 12. [34]   ibid. [35]   ‘ Путин подписал указ о статусе живущих в РФ гражданах Украины, ДНР и ЛНР’ ( Parlamentskaya Gazeta , 27 April 2023) < https://www.pnp.ru/politics/putin-podpisal-ukaz-o-statuse-zhivushhikh-v-rf-grazhdanakh-ukrainy-dnr-i-lnr.html >  accessed 17 Dec ember  2023; ‘Как получить российское гражданство. Жителям новых регионов РФ органы МВД обязаны оформить российский паспорт в течение десяти дней после принятия заявления’ ( Parlamentskaya Gazeta , 27 December 2022) < https://www.pnp.ru/social/kak-poluchit-rossiyskoe-grazhdanstvo.html >  accessed 17 December 2023. [36]   ‘ Президент РФ подписал законы о вхождении в состав России ДНР, ЛНР, Запорожской и Херсонской областей’ ( Duma , 5 October 2022) < http://duma.gov.ru/news/55420/ >  accessed 17 December 2023 . [37]  Указ Президента Российской Федерации от 24.04.2019 г. № 183 ‘Об определении в гуманитарных целях категорий лиц, имеющих право обратиться с заявлениями о приеме в гражданство Российской Федерации в упрощенном порядке’, changed and amended on 30 May 2022 and 11 July 2022 < http://www.kremlin.ru/acts/bank/44190 >  accessed 17 December 2023. [38]  ФЕДЕРАЛЬНЫЙ ЗАКОН ‘О ГРАЖДАНСТВЕ РОССИЙСКОЙ ФЕДЕРАЦИИ’ от 28 апреля 2023 года N 138-ФЗ < http://www.kremlin.ru/acts/bank/49216 >  accessed 17 December 2023. [39]   ibid art. 13.3, 13.4. [40]   ibid art. 16.5. [41]   ibid art. 12.3, 12.4. [42]  Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, art. 78 ‘Evacuation of Children’ < https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-78#:~:text=No%20Party%20to%20the%20conflict,%2C%20their%20safety%2C%20so%20 >  accessed 17 December 2023 . [43] ‘ Russia rejects protecting power mandate agreed by Switzerland and Ukraine’ ( S wiss Info, 11 August 2022)   < https://www.swissinfo.ch/eng/politics/switzerland-and-ukraine-agree-draft-protecting-power-mandate/47817660 >  accessed 17 December 2023; ‘Deportation, Treatment of Ukraine’s Children by Russian Federation Take Centre Stage by Many Delegates at Security Council Briefing’ ( UN Meetings Coverage and Press Releases , 24 August 2023) < https://press.un.org/en/2023/sc15395.doc.htm > accessed 17 December 2023. Kateryna Rashevska, Legal expert at the Regional Center for Human Rights: ‘Moscow further refuses to transfer the list of evacuated children to the Central Tracing Agency of the International Committee of the Red Cross (ICRC)’. According to James Kariuki (United Kingdom), ‘Russia has not attempted to preserve the identities of the children it has forcibly deported’. He stressed that ‘Moscow has also failed to provide information about the children transferred to its territory and placed with foster families’. Saod Almazrouei (United Arab Emirates) ‘urged the parties to facilitate reunification with their families and for States to cooperate with the Central Tracing Agency of the ICRC and the provision of information on children separated from their families ’ . [44]   OSCE (n 5) 12. [45]   ‘ В Тверской области можно усыновить детей-сирот из ДНР и ЛНР’ (29 April 2022) < https://tver.aif.ru/society/family/v_tverskoy_oblasti_mozhno_usynovit_detey_sirot_iz_dnr_i_lnr >  accessed 17 December 2023 . [46]  ‘Maria Lvova-Belova: The Embrace of the Motherland’ ( Eurovision News / Missing Children of Ukraine , 14  February 2022) < https://missingchildrenukraine.news-exchange.ebu.ch/the-missing-children-of-ukraine/maria-lvova-belova/index.html >  accessed 17 December 2023 . [47]  Василий Легейдо, ‘Беззаботное детство и немного идеологии: для чего в СССР создавали пионерские лагеря’ ( Forbes Russia , 27 June 2023) < https://www.forbes.ru/forbeslife/491636-bezzabotnoe-detstvo-i-nemnogo-ideologii-dla-cego-v-sssr-sozdavali-pionerskie-lagera >  accessed 17 December 2023 . [48]  Федеральный закон Российской Федерации от 4 августа 2023 года № 479-ФЗ ‘О внесении изменений в Федеральный закон «Об образовании в Российской Федерации»’, art. 1(2) < https://online.zakon.kz/Document/?doc_id=34090297&pos=5;-106#pos=5;-106 >  accessed 17 December 2023 . [49]  Легейдо  (n 47). [50]  Федеральный закон от 14.07.2022 г. № 261-ФЗ ‘О российском движении детей и молодежи’ < http://www.kremlin.ru/acts/bank/48153 >  accessed 17 December 2023 . [51]  Устав Общероссийского общественно-государственного движения детей и молодежи ‘Движение первых’ < https://будьвдвижении.рф/documents >  accessed 17 December 2023 . [52]   российском (n 50). [53] ‘ Движение Первых представило утвержденную Наблюдательным советом Программу воспитательной работы’ (6 December  2023) < https://будьвдвижении.рф/news/527 >  accessed 17 December 2023 . [54]   ibid. [55]   ‘ Эксперты: закон о просвещении неоднозначен, но защитит учебные заведения от пропаганды’ (30 May 2021) < https://tass.ru/obschestvo/11513367 >  accessed 17 December 2023. [56]   Легейдо (n 47). [57]  Yale School of Public Health, ‘Russia’s Systematic Program for the Re-education & Adoption of Ukraine’s Children’ ( Conflict Observatory , 14 February 2023) 4 < https://hub.conflictobservatory.org/portal/sharing/rest/content/items/97f919ccfe524d31a241b53ca44076b8/data >  accessed 17 December 2023. [58]  The chronological collection of reports, including public Russian TV video clips on transfers of Ukrainian children to Russia, their adoption, education, free time spending, and naturalization ceremonies, was compiled by the Eurovision News Investigative Journalism Network, ‘TIMELINE: The missing children of Ukraine: Research compiled by the Eurovision Social Newswire for the EBU Investigative Journalism Network < https://missingchildrenukraine.news-exchange.ebu.ch/the-missing-children-of-ukraine/timeline/index.html .> accessed 17 December 2023. [59]  Фонд поддержки и защиты прав соотечественников, проживающих за рубежом, ‘300 детей из ДНР отправились на оздоровительный отдых в Ростовскую область’ (6 August 2015)  < https://pravfond.ru/press-tsentr/300_detey_iz_dnr_otpravilis_na_ozdorovitelnyy_otdykh_v_rostovskuyu_oblast_4043/ >  accessed 17 December 2023 .   According to this Russian media outlet, 297 children were sent by the local occupation administration to the children’s camp ‘Druzhba’ in Rostov region. Most of the children are orphans or those who don’t have parental care. There are also children from the local dance clubs, athletes, and gymnasts. The reporting also states that 1770 children from DNR were sent for recreation to Russia ; Анна Рыжкова, при участии Петры Прохазковой, ‘«Мама, мы скоро будем»’ (27 June 2022), < https://verstka.media/deti-siroty-is-ukrainy-v-rossii >  accessed 17 December 2023 . According to this Russian liberal outlet, there is a camp ‘Romashka’ that now functions exclusively as a place of temporary staying (ПВП). It is reported that 267 children are not officially orphans, but they lost touch with their parents because of active hostilities. Considering that there are about 22,000 people killed in the city of Mariupol, it could be that there is nobody who looks for them. These children also have never been to or stayed in orphanages or other foster institutions, so there is no registry of their names. [60]   UNCHR, Report (n 17) ; OSCE (n 5) 12 ; Yale School of Public Health (n 57) 13-4. [61]  n (48), art. 12(6.3.). ‘According to the amended law on education, a part of the mandatory curriculum of federal programs for general education ‘Fundamentals of Life Safety’ was replaced with ‘Fundamentals of Safety and Defense of the Motherland’. [62]  Piotr Acopov, ‘Ведь что такое Украина? Это и есть историческая Россия, ее население — это такие же русские, не только те, кто считает себя русскими, но и те, кто называется украинцами (то есть малороссами, одной из трех составных частей русского народа) ‘ ( RIA , 27 February 2023), < https://ria.ru/20230227/putin-1854465327.html > accessed 17 December 2023. [63]  Матвей Бирюков, ‘Путин подписал указ о выплатах на детей в ДНР, ЛНР и подконтрольных областях Украины’ ( Forbes Russia , 24  August  2022)   < https://www.forbes.ru/society/475199-putin-podpisal-ukaz-o-vyplatah-na-detej-v-dnr-lnr-i-podkontrol-nyh-oblastej-ukrainy >   accessed 17 December 2023. [64]  Acopov  (n 62). [65]  Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (2nd edn, The Lawbook Exchange 2005) 79.

NOTICE: This article contains information that some readers may find distressing.   ‘Take her to the dark room’, said the Han Chinese man in a mask.[1] Tursunay Ziawudun and her cellmate, also a young Uyghur woman, were ushered into separate rooms. As she heard her cellmate’s screams next door, guards inserted an electric baton into her vagina and twisted it. She blacked out from the shocks. Ten days later she was gang raped.[2] On other occasions, guards shoved metal tools into her genital tract, making her feel as if her internal organs were being pulled out.[3] ‘It was not a simple rape; it was extreme inhumane torture’, she later testified.[4] From these experiences, Ziawudun soon developed constant vaginal bleeding, from which she continued to suffer after her release. When she arrived in the US in September 2020 for medical treatment, doctors had to remove her uterus.[5]   From early 2017, the so-called Xinjiang Uyghur Autonomous Region (XUAR) in the People’s Republic of China (PRC), referred to by many Uyghurs as East Turkestan, embarked on a campaign of extrajudicially interning an estimated 1-2 million Uyghurs and other members of predominantly Turkic ethnic groups into re-education camps.[6] The campaign was preceded by decades-long tensions between Uyghurs and China’s Han majority population, which in July 2009 erupted into violent clashes in the region’s capital of Urumqi.[7] After acts of violent resistance by small numbers of Uyghur militants, Beijing turned Xinjiang into one of the world’s most heavily fortified police states.[8] This paved the way for a re-education campaign that represents the probably largest incarceration of an ethnoreligious group since the Holocaust.[9] A conservatively worded report issued in August 2022 by the United Nations Office of the High Commissioner for Human Rights (OHCHR) stated that Beijing’s policies against Uyghurs may constitute crimes against humanity.[10] In December 2021, an independent people’s tribunal chaired by former war crimes prosecutor Sir Geoffrey Nice found that Beijing was committing genocide in the region.[11]   The International Criminal Tribunal for the former Yugoslavia (ICTY) specified the crime of rape in international law as:   [T]he sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object [...]; or (b) the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim.[12]   According to Qelbinur Sidik, an Uzbek woman who was forced to teach camp detainees, the women’s camps use four kinds of electric shock device to torture female detainees: ‘the chair, the glove, the helmet, and anal rape with a stick’.[13] Camp security staff told her that groups of police officers would first rape a woman, then insert an electric baton or rod into her vagina and rectum to shock her, then rape her again (a Han police officer who fled China has testified that camp guards would also insert electric rods into the penises of male Uyghur detainees).[14] Some of the female rape victims were still teenagers. Classified police records confirm that many teenage females were among those arbitrarily detained at a re-education camp in Konasheher county in southern Xinjiang, including Rahile Omer, a Uyghur girl aged 14 when she was detained.[15] Ruqiye Perhat, who was repeatedly raped by Chinese prison guards, resulting in two pregnancies that were then forcibly aborted, stated that it was typical for a detained ‘woman or man under age 35 [to be] raped and sexually abused’.[16]   Other firsthand testimony from camp survivors speaks of forced sex-on-demand. ‘My job was to remove their clothes above the waist and handcuff them [behind their backs] so they cannot move’, said Gulzira Aeulkhan. She would then leave the room and a man would enter, either camp police or a Chinese man from outside the camp. ‘I sat silently next to the door, and when the man left the room, I took the woman for a shower’.[17] Chinese men would pay money to sleep with the most attractive detainees.   According to another Uyghur detainee, in her camp in Xinjiang the younger and more beautiful Uyghur women were detained on the second floor of a building used by Chinese camp officials.[18] Officers would take them away for ‘interrogation’, a euphemism for taking them to their vehicles where they were kissed, groped, and raped. To refuse would risk a long prison sentence. One of her own disciplinarians, a Han man, would take younger female detainees to the locker room, which did not have surveillance cameras. There, he would grope their breasts and thighs, threatening to send them to the prefecture-level detention centre if they resisted.   Tursunay Ziawudun noted that the masked men always appeared at night, taking groups of women through camp corridors and into the interrogation room, which did not have cameras.[19] Several female detainees have reported incidents of gang rape during interrogations.[20] Sayragul Saytbay, a Kazakh woman who was forced to teach at a camp, witnessed a girl in her early 20s being gang raped in front of other detainees by masked police officers.[21] ‘Rescue me’, the girl screamed as five or six officers took turns penetrating her. Male Uyghur detainees have also been gang raped.[22] A former Han camp police officer admitted that guards used sexual torture to extract confessions, and dehumanize Uyghurs by ordering detainees to rape new male inmates.[23] Former camp teacher Qelbinur Sidik described how young women would routinely be taken out of her class, and returned hours later.[24] Sexual abuse and torture had left their clothes stained with blood, and they were unable to sit down.   Gulbahar Jelilova was chained and raped four times during interrogations, including attempts by a guard to forcibly insert his penis into her mouth.[25] The abuses forced her to spend a total of 40 days in the camp hospital. Other female detainees suffered mental breakdowns as a result of physical and sexual abuse, hitting their heads against cell walls and smearing faeces on them. Guards would force women to undress in public settings and search their genitals for hidden Koran texts.[26] A few women had recently given birth and were lactating from their bare breasts. One of them had delivered a baby the day before she was detained.[27] Other women reported that camp guards ordered them to strip naked and smear a liquid mixed with chilli paste on their genitals before showering, causing them to burn ‘like fire’.[28]   In 2018, Menzire (pseudonym), a Uyghur family planning officer, was tasked to deal with female camp detainees who had been impregnated during detention.[29] As growing numbers of detainees suddenly became pregnant, the camp quickly built a dedicated ‘lover’s room’ and required married detainees to engage in monthly conjugal relations with their husbands. In addition, the female detainees were forcibly fitted with IUDs. When Menzire complained to a Chinese superior that this practice was probably introduced to cover up incidents of rape in the camps, she was rudely ejected from her office. In Gulzira Aeulkhan’s camp, women were also coerced into having conjugal relations with their husbands, whether they wanted to or not.[30] Gulzira, who was forced to clean her camp’s ‘lover’s room’ discovered that it was also the very place where Han men paid money to rape Uyghur detainees.   Mihrigul Tursun, a Uyghur mother of triplets, said that during detention she and other women were given unknown drugs and injections that caused irregular bleeding and loss of menstrual cycles.[31] Doctors in the US later found she was infertile.[32] In the camp, she witnessed the death of a fellow female detainee who suffered from severe menstrual bleeding but was denied medical treatment.[33] Qelbinur Sidik similarly saw a detained teenage girl bleed from her genitals for two months before she passed away.[34]   State Policies Driving Declining Uyghur Birth Rates   Sexual abuses in the camps are not officially sanctioned by the government, but they fit into a systemic pattern of state violence against female Uyghur’s reproductive apparatus.[35] Here, I contextualise such sexual violence within Beijing’s wider efforts to ‘optimise’, contain, and dilute Xinjiang’s ethnic population through birth prevention, population transfers, coerced interethnic marriage, and ordering Han Chinese to stay in Uyghur homes. I discuss the political paranoia that drives its policies targeting Uyghurs and other groups, and conclude by arguing that attacks on Uyghur reproduction can be understood in the context of Beijing’s attritional campaign of settler colonialism. The Rome Statute of the International Criminal Court defines the following acts to constitute a crime against humanity: ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’.[36]   In 2019, while studying population data to estimate mass internment shares, I stumbled upon local records showing birth rates and death rates by prefectures and counties. Together, birth rates and death rates enable calculating natural population growth. The data indicated severe birth rate declines in Uyghur regions.[37] Between 2015 and 2018, natural population growth rates in the four southern Uyghur heartland prefectures declined by 73 percent.[38] In 2019, rates continued to decline. In a population-weighted sample of prefectures and counties with data for both 2018 and 2019, natural population growth rates fell from 5.2 to 1.7 per mille[39], a staggering decline for a 12-month period. In 2020 the official Xinjiang Statistical Yearbook stopped publishing birth rates by prefectures and counties.[40]   At first glance, declining birth rates in Uyghur regions appeared to be the logical result of the campaign of mass internment, which had especially removed Uyghur men from their homes.[41] However, a subsequent investigation showed that population growth was plummeting as the result of a concerted effort to prevent Uyghur births.[42]   In 2018, ‘zero birth control violation incidents’, a phrase previously not routinely used in the PRC or Xinjiang, became a standard family planning target. A particularly strict case was Hotan Prefecture, a region of 2.5 million persons that in 2019 planned to have no more than 21 birth control policy violations among its entire population.[43] In 2018, the region performed 243 sterilisations per 100,000 population, compared to 33 per 100,000 in the rest of the country.[44] By 2019, at least 80 percent of women of childbearing age in rural southern Xinjiang were subject to ‘birth control measures with long-term effectiveness’, including the placement of intrauterine devices (IUDs) or sterilisation.[45]   In 2017, former camp teacher Qelbinur Sidik was forced into a bus with four armed police and taken to a hospital where hundreds of women, all Uyghur, were lined up for IUDs to be inserted.[46] She protested in vain that she was nearly 50 years old, had only one child, and did not plan to have more. The authorities had notified her that if she resisted when the officers came for her, she would be placed into a tiger chair, a metal chair used for interrogations and torture.[47] ‘I was made to lie down and spread my legs, and the device was inserted. It was terribly violent. I was crying’.[48] Once inserted, IUDs could only be surgically removed. In 2018, when the state embarked on a campaign of mass sterilisation among ethnic populations, Sidik was forcibly sterilised.[49]   Starting in 2018, birth control violations were punishable with extrajudicial internment, and a leaked internal document (the Karakax List) showed that a violation of birth control measures was the most common reason for such internment .[50]  That year, individual Uyghur counties determined to sterilise up to a third of all women of childbearing age, and a Uyghur heartland prefecture published a blunt statement linking the new regionwide ‘free birth control surgery’ campaign with the intent to mass sterilise rural populations: ‘ Guide the masses of farmers and herdsmen to spontaneously carry out family planning sterilisation  surgery ’. [51]   Xinjiang’s ethnic regions are required to suppress population growth below certain targets. More recently, these have at times been near or below zero. For 2020, Kizilsu prefecture planned a 6.14 per mille reduction in its natural population growth rate, which would result in a negative 3.14 per mille growth target.[52] Similarly, for 2021, Aksu’s Xinhe County aimed at a birth rate of 6 per mille or less, which at the county’s posted death rate of 6.62 would result in negative population growth. For comparison, natural population growth rates in Uyghur regions between 2007 and 2016 ranged between 10 and 20 per mille, far higher than those among Han populations.[53]   ‘End the Dominance of the Uyghur Ethnic Group’: Beijing’s Campaign to ‘Optimise’ Xinjiang’s Ethnic Population Structure   While it is evident that Xinjiang instituted birth prevention policies of an unprecedented draconian nature, the intent behind these policies was initially unclear. Research on the statements of Xinjiang’s so-called scholar-officials, academics who are at the same time employed and funded by the government, has shed important light on this question.[54]   In a top-secret speech held in 2014, Xi Jinping had argued that ‘population proportion and population security are important foundations for long-term peace and stability’.[55] This exact statement was later quoted verbatim by a senior Xinjiang official in July 2020 when arguing that southern Xinjiang’s Han population share was ‘too low’ (see below). Other classified documents from 2017 lamented ‘severe imbalances in the distribution of the ethnic population’ and a ‘severely monoethnic’ population structure in southern Xinjiang, indicating concern over an overconcentration of Uyghurs.[56]   In 2015, Liao Zhaoyu, dean of the institute of frontier history and geography at Tarim University, discussed the question of Xinjiang’s Uyghur population at an academic event. When contemplating ‘methods to solve Xinjiang’s problems’, Liao said that in southern Xinjiang the state must ‘change the population structure and layout [and] end the dominance of the Uyghur ethnic group’.[57] In 2016, Liao argued that the ‘underlying reason’ for Xinjiang’s unrest and terrorism was the high concentration of Uyghur populations in southern Xinjiang.[58]   Xinjiang’s most high-profile and authoritative voice on this sensitive subject is probably Liu Yilei, deputy secretary-general of the party committee of Xinjiang’s Production and Construction Corps (XPCC), and dean of Xinjiang University’s Western China Economic Development and Reform Research Institute. At a July 2020 symposium with 300 experts and scholars from across China, Liu noted that despite all progress, ‘the root of Xinjiang’s social stability problems has not yet been resolved’.[59] To quote:   the problem in southern Xinjiang is mainly the unbalanced population structure. Population proportion and population security are important foundations for long-term peace and stability. The proportion of the Han population in southern Xinjiang is too low, less than 15%. The problem of demographic imbalance is southern Xinjiang’s core issue.[60]   A 2017 article published by two researchers from the Xinjiang Police Academy, argued that Uyghur ‘terrorism’ should be eradicated by ‘rapidly optimising the population structure’.[61]  The authors proposed concrete measures to mitigate the ‘human threat’ emanating from concentrated Uyghur populations by diluting ‘problem’ populations with ‘negative energy’ through the embedding of Han settler populations.   Taken together, the concerns expressed by Xinjiang’s scholar-officials regarding the Uyghur population centred around the following themes:[62]   Excessive ethnic population growth was creat ing  an idle rural surplus workforce that constituted a potential threat to national security. High ethnic population density combined with low mobility was breeding  a ‘hardened’ society with an ‘excessively strong atmosphere of religious belief’ creating an alleged breeding ground for religious ‘extremism ’. High ethnic population concentrations were giving rise to a dangerous sense of identification with their homeland, weakening identification with the Chinese state . H igh ethnic population ratios we re a national security risk for sensitive border regions.   This necessitated two strategies. First, to severely curb Uyghur population growth. Second, to dilute the Uyghur population through transfers of Uyghurs to other regions, and by promoting large-scale Han in-migration into Uyghur heartlands through systematic forms of settler colonialism. Concurrently, state policies transfer so-called ethnic rural surplus labourers from southern Xinjiang into coerced factory work placements in more industrialised regions and other provinces, an effort that according to international criminal law experts could constitute the crime against humanity of forcible transfer.[63]   Besides targeted birth prevention and the promotion of Han in-migration into Uyghur regions, the state has actively promoted interethnic marriage between the two groups through financial incentives and other means.[64] Chinese state corporations were incentivized to hold mass interethnic wedding ceremonies. The state further mandated ethnic families to be ‘paired’ with Han Chinese counterparts to promote ‘ethnic unity’. By late 2017, this so-called ‘Becoming Family’ program had paired approximately one million state officials as pseudo-’relatives’ with 1.5 million ethnic families.[65] Because many Uyghur and other ethnic men have been detained in camps and prisons, male Han Chinese ‘relatives’ assigned to Uyghur homes frequently ended up co-sleeping with female hosts, and ‘sleeping’ under the same roof was mandated by the policy.[66]   Qelbinur Sidik, the former camp teacher, had a Han man stay in her home:[67]   We were asked to ‘live together, cook together, eat together, learn together, sleep together’ with Han cadres assigned by the local government. Women must have a male Han cadre ‘relative’, and men must have a Han female ‘relative’.[68]   At night, Sidik’s Han ‘relative’ would come into her kitchen, kissing and touching her, while her husband stayed in another room. ‘He would strip down to his shorts and sexually harass me while I was cooking’.[69] In the kitchen, while groping her relentlessly, he showed her the state policy document which states that ‘relatives’ are to ‘cook together, do things together’.[70] He complained that she refused to sleep with him, given that other Uyghur women whom he stayed with were ‘happy to oblige’.[71] Together with officials from village-based work teams which regularly check on local families, the Becoming Family campaign represents an unprecedented invasion of a Han settler colonial population into occupied ethnic groups’ most private spaces.[72]   The Political Paranoia Driving Beijing’s War on the Uyghur Population   I argue that the scale and intensity of Xinjiang’s policies, the framing of entire ethnic groups as a ‘human threat’ and attendant extreme preoccupations with internment camp security, mass surveillance, and mass birth prevention, reflect a devolution into what experts have described as political paranoia.[73] Sean Roberts has suggested that Beijing’s stance towards the Uyghurs frames them almost as a type of ‘biological threat’ to society that must be contained.[74] Scholars of genocides and crimes against humanity have argued that political paranoia is a common feature behind many atrocity crimes.   Dirk Moses suggests that pre-emptive strikes against a perceived threat group indicate a political paranoia defined as an ‘interpretative disorder constituted by hysterical threat assessments’.[75] Paranoia is not purely delusional but rooted in a reality (such as a few Uyghurs perpetrating violent acts of resistance) that becomes greatly exaggerated through interpretation. Genocide scholarship on the Holocaust suggests that the Nazis were not just driven by racism, but also by a political paranoia which led to a radicalisation of anti-Jewish measures. The paranoid-schizoid position uses projective identification and splitting to project the hated parts of the self out and onto the ‘Other’, while simultaneously idealising the good within oneself.[76]   Political paranoia has arguably been a driving factor behind Beijing’s re-education campaign in Xinjiang.[77] In internal speeches held in 2014, Xi had initially delineated the ‘enemy’ as those who engaged in direct acts of violence against the state. Ultimately, however, anyone who cannot be controlled is ‘untrustworthy’ because they could conceivably end up resisting the state in some form.[78] This creates a devolutionary logic by which the ‘enemy’ is no longer just those who actually engage in violent resistance, but also persons who are potentially ‘untrustworthy’ because the state fails to ascertain their state of mind.   Moses describes this logic as a striving for ‘permanent security’, defined as the ‘unobtainable goal’ of pursuing ‘absolute safety’—being invulnerable to threats.[79] He argues that ‘[t]he paranoid and hubristic quest for permanent security escalates routine state…security practices’ to a point where the government indiscriminately targets entire groups, with indifference to collateral damage.[80] This quest then becomes the breeding ground for a mass atrocity.   Consequently, the pre-emptive internment of large numbers of ordinary non-Han citizens can be understood as political paranoia that feeds on exaggerated threat perceptions. This paranoia and the attendant desire to control the Uyghur population, its density, distribution and growth, could also explain systematic patterns of sexual assault against Uyghur women as an extension of the state project of settler colonialism.   Sexual Violence as Attritional Genocide: Attacks on Uyghur Reproductive Capacities are an Extension of Settler Colonialism   As a strategic frontier region, Xinjiang has a long history of settler colonialism and resource extraction by the Chinese state.[81] In 1884, the Qing authorities formally referred to it as ‘Xinjiang’ (‘New Frontier’). Since 1949, the PRC government has aimed to cement its control by dramatically increasing the Han population, which at that point made up only 6.7 percent of the region’s total populace.[82] By 1978, their share reached 41.6 percent. Han in-migration surged again in the 1990s and early 2000s. Besides growing economic activity of the Xinjiang Construction and Production Corps (XPCC), a state entity established in 1954 as a military-agricultural colony to facilitate large-scale Han in-migration, the Great Western Development project, a multi-billion RMB development project initiated by the central government, also led to an influx of Han settlers.[83] By 2018, however, Han population shares had declined to 31.6 percent, due to lower birth rates and out-migration resulting from Xinjiang’s deteriorating security situation and increased state oppression.[84]   To increase the Han population, the state redoubled its efforts to lure Han settlers from other parts of China. In 2017, the central government mandated an increase of Xinjiang’s settler population in southern Xinjiang by 300,000 by the year 2022.[85] It promised incoming young settler families several acres of arable land, well-paid government jobs, brand new apartments with four years free rent, comprehensive medical benefits, and additional generous monthly livelihood subsidy payments.[86]   In her work on ‘sexual violence as genocide’, Lisa Sharlach notes that while rape is often presented as a consequence rather than a component of conflict, sexualized degradation serves to strategically perpetuate a dominant’s group hegemony over a weaker ethnic population.[87] Sharlash refers to ‘state rape’ as systematic mass rape ‘perpetrated, encouraged, or tacitly approved by the institutions of the state’.   As in other atrocity contexts such as former Yugoslavia, Xinjiang’s leaders have denied incidents of sexual abuse and have not issued any publicly-available statements condoning them. Theoretically, sexual assaults against Uyghur and Kazakh female detainees could result from male sex drives. However, paranoid state perception of concentrated and growing Uyghur populations, coupled with the region’s increased geopolitical significance in the context of Xi Jinping’s signature Belt and Road Initiative, mean that sexual violence can be understood as but one component of a wider campaign of settler colonialism.   Taken together, the acts of Han police guards penetrating shackled Uyghur female detainees, gang-raping Uyghur men, forced sterilisation, sending Han men into the homes of Uyghur women, or forced interethnic marriage embody the ultimate intention behind the state’s settler colonial project.[88] While officials argue that sexual assault in camps violates government regulations, the presence of such violence is a logical consequence and expression of the systematic dehumanization, occupation and dispossession of Uyghur and Kazakh heartlands. Acts of rape go further than mere internment: by penetrating and thus occupying the bodies of the dispossessed, they turn state phantasies of ethnopolitical dominance into physical domination over their reproductive capacities.   Citing Lorenzo Veracini, Sean Roberts notes that while other forms of colonialism exploit host populations and therefore act more like a virus living off other living cells, settler colonialism favours lower population density as it is less interested in exploiting the population than the land and its resources.[89] Settler colonial efforts are therefore more akin to bacteria living on surfaces without needing a living host. Even so, rather than necessitating full ethnic cleansing, settler colonial campaigns may be content to destroy what Lemkin described as the ‘national pattern of the oppressed group’, imposing their pattern (ways of living) on ‘the oppressed population which is allowed to remain’.[90] Here, Beijing’s settler colonialism in Uyghur heartlands combines frontier with settler colonial elements as its two large-scale systems of state-imposed forced labour feed off the exploitation of the able-bodied ethnic workforce.[91]   Rather than being a process that can ‘erupt’ into ‘genocidal moments’, Pauline Wakeham argues that settler colonialism entails cumulative dispossessions that combine to a long-term attritional effect.[92] Drawing on Raphael Lemkin’s notion that genocide can be a process of protracted group disintegration rather than of rapid destruction, she suggests that settler colonialism exerts a slow violence that follows a logic of gradual dissolution. Benjamin Madley described ‘frontier genocide’ as a three-phased process, where in the final phase, indigenous populations are subjected to slow genocidal attrition through malnutrition, inadequate healthcare and violence.[93] Nazila Isgandarova’s work on the long-term effects of systemic rape explicates the various knock-on effects of initial acts of sexual violence, such as victims suffering from long-term mental and physical conditions that prevent them from being able to marry.[94] This results in long-term impacts on the capabilities of targeted groups to maintain numerical strength and to reproduce socio-communal structures that are the foundations of their survival.[95]   Whereas Hamas’ acts of sexual violence against Israeli and other women were carried out with the declared intent to physically destroy the Jewish race, systematic acts of rape and sexual abuse by Russian troops against Ukrainian women and by Han Chinese males against Uyghur females are best understood in the context of long-term campaigns designed to integrate and colonize subjugated populations.[96] Moscow and Beijing seek to eradicate the distinct identities in the regions they seek to or have occupied, weakening and decreasing the respective populations through acts of violence and birth prevention so that they can more readily impose the cultures of the ‘master races’.[97] These efforts represent forms of settler colonialism carried out with varying degrees of genocidal attrition, within which sexual violence and acts of sexual domination can play an integral part.[98]   Together with eliticide—the elimination of a targeted group’s intellectual, cultural, and spiritual elite through murder or lifelong imprisonment—attacks on the dignity and physiological functioning of the female reproductive apparatus are part of a systematic campaign intended to destroy a group ‘in part’, to facilitate its subjugation, integration, and erasure of identity. Adrian Zenz Adrian Zenz is Director and Senior Fellow in China Studies at the Victims of Communism Memorial Foundation. A German anthropologist known for his studies of the Xinjiang internment camps and persecution of Uyghurs in China, he is the author of numerous books and articles. [1] Ivan Watson and Rebecca Wright, ‘Allegations of shackled students and gang rape inside China’s detention camps’ ( CNN,  19 February 2021) < https://www.cnn.com/2021/02/18/asia/china-xinjiang-teacher-abuse-allegations-intl-hnk-dst/index.html > accessed 27 December 2023; Uyghur Tribunal, ‘Witness Statement: Tursunay Ziyawudun’ (Uyghur Tribunal: An International People’s Tribunal 2021) < https://uyghurtribunal.com/wp-content/uploads/2022/01/UT-211111-Tursunay-Ziyawudun.pdf > accessed 27 December 2023; Matthew Hill, David Campanale, and Joel Gunter, ‘‘Their goal is to destroy everyone’: Uighur camp detainees allege systematic rape’ ( BBC News , 2 February 2021) < https://www.bbc.com/news/world-asia-china-55794071 > accessed 27 December 2023; David Tobin and others, ‘State violence in Xinjiang - a comprehensive assessment. Submission of evidence to the Uyghur Tribunal’ (June 2021) < https://www.shu.ac.uk/-/media/home/research/helena-kennedy-centre/projects/pdfs/state-violence-in-xinjiang---a-comprehensive-assessment.pdf > accessed 27 December 2023, chapter 3. [2]   Uyghur Tribunal (n 1). [3]  ibid. [4] ibid. [5]   ibid; Asim Kashgarian, ‘Uyghur Activists in Exile Emboldened by Beijing’s Attacks’ ( Voice of America , 26 March 2021) < https://www.voanews.com/a/east-asia-pacific_uyghur-activists-exile-emboldened-beijings-attacks/6203805.html > accessed 27 December 2023. [6] Adrian Zenz, ‘The Xinjiang Police files: Re-education Camp Security and political paranoia in the Xinjiang Uyghur Autonomous Region’ (2022)   3 The Journal of the European Association for Chinese Studies   263; Adrian Zenz, ‘Public security minister’s speech describes Xi Jinping’s direction of mass detentions in Xinjiang’ ( ChinaFile , 24 May 2022) < https://www.chinafile.com/reporting-opinion/features/public-security-ministers-speech-describes-xi-jinpings > accessed 27 December 2023; James Millward, ‘China’s new Anti-Uyghur campaign’ ( Foreign Affairs, 23 January 2023) < https://www.foreignaffairs.com/china/chinas-new-anti-uyghur-campaign > accessed 27 December 2023; Adrian Zenz, ‘Thoroughly Reforming Them Towards a Healthy Heart Attitude: China’s Political Re-education Campaign in Xinjiang’ (2018) 38 Central Asian Survey 102; Adrian Zenz, ‘Wash Brains, Cleanse Hearts’: Evidence from Chinese Government Documents about the Nature and Extent of Xinjiang’s Extrajudicial Internment Campaign’ (2019) 7(11) Journal of Political Risk. [7] Sean Roberts, War on the Uyghurs: China’s Internal Campaign Against a Muslim Minority   (Princeton University Press 2020).   [8] Adrian Zenz and James Leibold,   ‘Securitizing Xinjiang: Police Recruitment, Informal Policing and Ethnic Minority Co-optation’ (2020) 242 The China Quarterly 324. [9] Adrian Zenz, ‘Innovating Repression: Policy Experimentation and the Evolution of Beijing’s Re-Education Campaign in Xinjiang’ (2024) Journal of Contemporary China; Fergus Shiel, ‘About the China cables investigation’ ( ICIJ, 23 November 2019)   < https://www.icij.org/investigations/china-cables/about-the-china-cables-investigation/ > accessed 27 December 2023. [10] OHCHR, ‘OHCHR Assessment of Human Rights Concerns in the XUAR’ (OHCR 2022). [11] Uyghur Tribunal, ‘Uyghur Tribunal Judgement: Beyond reasonable doubt the People’s Republic of China committed torture and crimes against humanity against the Uyghurs’ (Uyghur Tribunal: An International People’s Tribunal 2021). [12] Gideon Boas, James L Bischoff, and Natalie N Reid, International Criminal Law Practitioner Library : Elements of Crime Under International Law (11th edn, Cambridge University Press 2008). [13] Uyghur Tribunal, ‘Witness Statement: Qelbinur Sidik’ (Uyghur Tribunal: An International People’s Tribunal 2021) < https://www.uyghurtribunal.com/wp-content/uploads/2021/06/04-0930-JUN-21-UTFW-005-Qelbinur-Sidik-English-1.pdf > accessed 27 December 2023; Hill (n 1). [14]   Shiel (n 9); Uyghur Tribunal, ‘Witness Statement: Wang Leizhan’ (Uyghur Tribunal: An International People’s Tribunal 2021) < https://uyghurtribunal.com/wp-content/uploads/2021/06/07-1000-JUN-21-UTFW-022 > accessed 27 December 2023; Rebecca Wright and others, ‘‘Some are just psychopaths’: Chinese detective in exile reveals extent of torture against Uyghurs’ ( CNN, 5 October 2021) < https://edition.cnn.com/2021/10/04/china/xinjiang-detective-torture-intl-hnk-dst/index.html > accessed 27 December 2023. [15]  Rahile Omer was 14 years old on September 28, 2017 , when she was first detained ; Zenz (n 6).  [16] Anna Ferris-Rotman, 'Abortions, IUDs and sexual humiliation: Muslim women who fled China for Kazakhstan recount ordeals' ( Washington Post , 5 October 2019) < https://www.washingtonpost.com/world/asia_pacific/abortions-iuds-and-sexual-humiliation-muslim-women-who-fled-china-for-kazakhstan-recount-ordeals/2019/10/04/551c2658-cfd2-11e9-a620-0a91656d7db6_story.html > accessed 27 December 2023. [17]   Uyghur Tribunal, ‘Witness Statement: Gulzire Awulqanqizi’ (Uyghur Tribunal: An International People’s Tribunal 2021)  < https://www.uyghurtribunal.com/wp-content/uploads/2022/01/UT-211206-Gulzire-Aulhan.pdf > accessed 27 December 2023. [18] Written witness statements and interviews conducted by the author in late 2022. [19]  Uyghur Tribunal (n 1);  Uyghur Tribunal, ‘Witness Statement: Sayragul Sauytbay ’ (Uyghur Tribunal: An International People’s Tribunal 2021) < https://uyghurtribunal.com/wp-content/uploads/2022/01/UT-211109-Sayragul-S > accessed 27 December 2023; OHCHR (n 10); Human Rights Watch, ‘‘Break Their Lineage, Break Their Roots’: Chinese Government Crimes against Humanity Targeting Uyghurs and Other Turkic Muslims’ (Human Rights Watch 2021). [20] Uyghur Tribunal, ‘Witness Statement: Gulbahar Jelilova’ (Uyghur Tribunal: An International People’s Tribunal 2021) < https://uyghurtribunal.com/wp-content/uploads/2022/01/UT-Gulbahar-Jelilova.pdf > accessed 27 December 2023; Harris (n  1); Elizabeth M Lynch, ‘China’s attacks on Uighur women are crimes against humanity’ ( The Washington Post , 21 October 2019)  < https://www.washingtonpost.com/opinions/2019/10/21/chinas-attacks-uighur-women-are-crimes > accessed 27 December 2023; David Tobin, ‘Genocidal processes: Social death in Xinjiang’ (2022) 45(16) Ethnic and Racial Studies 93; Joanne Smith-Finley, ‘Why scholars and activists increasingly fear a Uyghur genocide in Xinjiang’ (2021) 23(3) Journal of Genocide Research 348. [21]   Uyghur Tribunal (n 19) [22] ibid 11; Wright (n 1). [23] ibid; compare Zenz (n 6). [24] Ruth Ingram, ‘Uyghur women have been disproportionately singled out for abuse in Xinjiang’ ( The China Project, 16 March 2023)   < https://thechinaproject.com/2023/03/16/uyghur-women-have-been-disproportionately-singled-out-for-abuse-in-xinjiang/ > accessed 27 December 2023. [25]  Uyghur Tribunal (n 20). [26] Ursula Gauthier, ‘‘They want to turn us into zombies’: the ordeal of the Uighurs in the Chinese camps’ ( Ursula Gauthier, 21 November 2019) < http://www.ursulagauthier.fr/they-want-to-turn-us-into-zombies-the-ordeal-of-the-uighurs-in-the-chinese-camps/ > accessed 27 December 2023. [27]   ibid; The Associated Press, ‘China cuts Uighur births with IUDs, abortion, sterilization’ ( AP News , 29 June 2020) accessed 27 December 2023. [28] Ferris-Rotman (n 16). [29] Interview with an anonymous Uyghur witness, conducted by unnamed interlocutors in Kazakhstan. Used with permission. [30]  Uyghur Tribunal (n 17)  13. [31] CBS News, ‘Uighur woman details horrific abuse in China internment camp’ ( CBS News,  27 November 2018) < https://www.cbsnews.com/news/china-uighur-woman-abuse-chinese-internment-camp-muslim-minorities-xinjiang/ > accessed 27 November 2023. [32] Shosuke Kato and Kenji Kawase, ‘Xinjiang: What China shows world vs. what former detainee describes’ ( Nikkei Asia, 10 August 2019) < https://asia.nikkei.com/Politics/Xinjiang-What-China-shows-world-vs.-what-former-detainee-describes > accessed 27 December 2023; Uyghur Tribunal, ‘Witness Statement: Mihrigul Tursun’ (Uyghur Tribunal: An International People’s Tribunal 2021) < https://uyghurtribunal.com/wp-content/uploads/2021/06/06-1650-JUN-21-UTFW-014-Mihrigul-Tursun-English.pdf > accessed 27 December 2023. [33] Congressional-Executive Commission on China ‘Testimony of Mihrigul Tursun, Hearing: The Communist Party’s Crackdown on Religion in China’ (Congressional-Executive Commission on China 2018); Ivan Watson and Ben Westcott, ‘Uyghur refugee tells of death and fear inside China’s Xinjiang camps’ ( CNN , 21 January 2019) < https://edition.cnn.com/2019/01/18/asia/uyghur-china-detention-center-intl/index.html > accessed 28 December 2023. [34] The Select Committee on the CCP, ‘Hearing Notice: The Chinese Communist Party's Ongoing Uyghur Genocide’ (23 March 2023) < https://selectcommitteeontheccp.house.gov/committee-activity/hearings/hearing-notice-chinese-communist-partys-ongoing-uyghur-genocide > accessed 28 December 2023, 37:35-37:55; Alex Willemyns, ‘Uyghurs tell Congress of gang rape, shackles and sterilization’ ( RFA , 24 March 2023) < https://www.rfa.org/english/news/uyghur/genocide-select-committee-03242023125434.html > accessed 28 December 2023. [35] Adrian Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control: The CCP’s Campaign to Suppress Uyghur Birthrates in Xinjiang’ ( Jamestown Foundation, 28 June 2020)  < https://jamestown.org/program/sterilizations-iuds-and-mandatory-birth-control-the-ccps-campaign-to-suppress-uyghur-birthrates-in-xinjiang/ > accessed 3 January 2024; Adrian Zenz, ‘‘End the Dominance of the Uyghur Ethnic Group’: An Analysis of Beijing’s Population Optimization Strategy in Southern Xinjiang’ (2021) 40(3) Central Asian Survey   291; The OHCHR report speaks of ‘credible’ allegations of sexual violence, torture and rape in Xinjiang’s internment camps, see OHCHR (n 10). [36] United Nations, ‘Crimes Against Humanity’ ( United Nations Office on Genocide Prevention and the Responsibility to Protect ) < https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml > accessed 3 January 2024. [37] Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control’ (n 35). [38]  National Bureau of Statistics of China, ‘China Statistical Yearbook 2016’   (China Statistics Press 2016); National Bureau of Statistics of China, ‘China Statistical Yearbook 2018’   (China Statistics Press 2018); National Bureau of Statistics of China, ‘China Statistical Yearbook 2019’   (China Statistics Press 2019). [39] ‘Per mille’ refers to ‘per thousand’. [40]  National Bureau of Statistics of China, ‘China Statistical Yearbook 2020’   (China Statistics Press 2020).   [41] Adrian Zenz, ‘Wash Brains, Cleanse Hearts’ (n 6). [42]   Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control’ (n 35); Compare The Associated Press ‘China cuts Uighur births with IUDs , abortion, sterilization’ ( AP News , 29 June 2020) < https://apnews.com/article/269b3de1af34e17c1941a514f78d764c > accessed 3 January 2024. [43]  Hotan Prefecture Health and Family Planning Commission ‘ 2019 Budget Disclosure ’ (Hotan Prefecture 2019) . [44] Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control’ (n 35). [45] ibid. [46] The Associated Press (n 42); Ruth Ingram, ‘Confessions of a Xinjiang Camp Teacher’ ( The Diplomat , 17 August 2020) < https://thediplomat.com/2020/08/confessions-of-a-xinjiang-camp-teacher/ > accessed 3 January 2024. [47] Emma Graham-Harrison and Lily Kuo, ‘Muslim minority teacher, 50, tells of forced sterilization in Xinjiang, China’ ( The Guardian , 4 September 2020) < https://www.theguardian.com/world/2020/sep/04/muslim-minority-teacher-50-tells-of-forced-sterilisation-in-xinjiang-china > accessed 3 January 2024. [48] Ingram (n 46). [49] Graham-Harrison and Kuo (n 47). [50] Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control’ (n 35); Adrian Zenz, ‘The Karakax List: Dissecting the Anatomy of Beijing’s Internment Drive in Xinjiang’ (2020) 8(2) Journal of Political Risk.  [51]  ibid; Kizilsu Kirghiz Autonomous Prefecture ‘Summary of poverty alleviation development work in the first half of 2018 and work plan for the second half’ (Kizilsu Kirghiz Autonomous Prefecture, 2018).   [52] Kizilsu Prefecture Government, ‘Public Explanation of the 2019 Kizilsu Kyrgyz Autonomous Prefecture Health Commission Departmental Final Accounts’ (Kizislu Prefecture Government, 10 August 2020). [53] See Zenz, ‘End the Dominance of the Uyghur Ethnic Group’ (n 35). [54] ibid. [55] Adrian Zenz, ‘The Xinjiang Papers: An Introduction’ (The Uyghur Tribunal, 27 November 2021)  < https://uyghurtribunal.com/wp-content/uploads/2021/11/The-Xinjiang-Papers-An-Introduction-1.pdf > accessed 3 January 2024. [56] ibid. [57] International Legal Research Net, ‘The 41st Session of the International Law Lecture – How to enlighten the key of Social Stability and Long-term Security in Xinjiang’ (2015) < http://web.archive.org/web/20210305011946/http://sil.cupl.edu.cn/info/1040/1013.htm > accessed 3 January 2024. [58] Zhaoyu Liao, ‘‘Yidai yilu’ beijing xia ruhe yi ‘wenhua kepu’ pudian Xinjiang changzhijiu’an jishi’ (2016) 4 Journal of Kashgar University 46 . [59]  The speech is summarized on Xinjiang University’s website at Xinjiang University School of Economics and Management. Liu Yilei participated in the ‘Chinese Economists 50 Forum’ and spoke as a representative. [60] Liu Yilei ‘Liu Yilei: Face the Problem, Deal With Each Issue on Its Merits, Implement Policy Precisely, and Promote the Formation of a New Pattern in the Development of the Western Region’ ( China Think Tanks , 25 July 2020) < https://www.chinathinktanks.org.cn/content/detail?id=npc2ev31 > accessed 3 January 2024 [61] Gao, Xue-Jing, and Li Ming, ‘Research into the Core Content and the Promoting Tactics of the Counter-terrorist Strategy of Embedding in Xinjiang’ (2017) 5 Journal of Beijing Police College   26. [62] Zenz, ‘End the Dominance of the Uyghur Ethnic Group’ (n 35). [63] Adrian Zenz, ‘Coercive Labor and Forced Displacement in Xinjiang’s Cross-Regional Labor Transfer Program: A Process-Oriented Evaluation’ ( Jamestown Foundation, March 2021)   < https://jamestown.org/product/coercive-labor-and-forced-displacement-in-xinjiangs-cross-regional-labor-transfer-program/ > accessed 3 January 2024; Adrian Zenz, ‘The Conceptual Evolution of Poverty Alleviation Through Labour Transfer in the Xinjiang Uyghur Autonomous Region’ (2023) 42(4) Central Asian Survey 649; Adrian Zenz, ‘Coercive Labor in the Cotton Harvest in the Xinjiang Uyghur Autonomous Region and Uzbekistan: A Comparative Analysis of State-Sponsored Forced Labor’ (2023) 56(2) Communist and Post-Communist Studies 1. [64] Andréa J. Worden and others, ‘Forced marriage of Uyghur Women: State policies for interethnic marriages in East Turkistan’ ( Uyghur Human Rights Project, 16 November 2022) < https://uhrp.org/report/forced-marriage-of-uyghur-women/ > accessed 3 January 2024; Gulchehra Hoja, ‘Matchmaking app offers Uyghur Brides for Han Chinese men’ ( Radio Free Asia , 14 November 2023) < https://www.rfa.org/english/news/uyghur/matchmaking-app-11142023094007.html > accessed 3 January 2024. [65] Xinjiang Documentation Project, ‘The ‘Jieqin’ Campaign: Ethnic Integration, Surveillance, and Grassroots Governance’ ( The University of British Columbia ) < https://xinjiang.sppga.ubc.ca/chinese-sources/chinese-academic-discourse/jieqin-%E7%BB%93%E4%BA%B2/ > accessed 4 January 2024. [66] Shohret Hoshur, ‘Male Chinese ‘relatives’ assigned to Uyghur homes co-sleep with female hosts’ ( Radio Free Asia, 31 October 2019)  < https://www.rfa.org/english/news/uyghur/cosleeping-10312019160528.html > accessed 4 January 2024. [67] The Select Committee on the CCP, ‘Testimony of Qelbinur Sidik’ (23 March 2023) < https://docs.house.gov/meetings/ZS/ZS00/20230323/115543/HHRG-118-ZS00-Wstate-SidikQ-20230323.pdf > accessed 4 January 2024. [68] Ruth Ingram, ‘Sexual abuse of Uyghur women by CCP cadres in Xinjiang: A victim speaks out’ ( Bitter Winter , 19 September 2020) < https://bitterwinter.org/sexual-abuse-of-uyghur-women-by-ccp-cadres-in-xinjiang/ > accessed 4 January 2020. [69] ibid. [70] The Select Committee on the CCP (n 34), 40:50-41:20. [71] The Select Committee on the CCP (n 67). [72] Zenz (n 50). [73] Zenz (n 6). [74] Roberts (n 7). [75] A Dirk Moses, ‘Paranoia and Partisanship: Genocide Studies, Holocaust Historiography, and the ‘Apolitical Conjuncture’’ (2011) 54(2) The Historical Journal 553; Compare Robert S Robins and Jerrod M Post, Political Paranoia: The Psychopolitics of Hatred  (Yale University Press 1997). [76] Robins and Post (n 75) . [77] Zenz (n 6). [78] Zenz (n 9). [79] A Dirk Moses, The Problems of Genocide: Permanent Security and the Language of Transgression  (Cambridge University Press 2021). [80] ibid. [81] James A Millward, Eurasian Crossroads: A History of Xinjiang (Columbia University Press 2021); Roberts (n 7); Joanne Smith-Finley, ‘Tabula rasa: Han settler colonialism and frontier genocide in ‘re-educated’ Xinjiang’ (2022) 12(2) Journal of Ethnography Theory 341. [82] Statistical Bureau of Xinjiang Uygur Autonomous Region, ‘1990 Statistical Yearbook’ (1990) table 3-1; Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control’ (n 35). [83] Zenz, ‘Coercive Labor in the Cotton Harvest’ (n 63). [84] Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control’ (n 35). [85] Zenz, ‘End the Dominance of the Uyghur Ethnic Group’ (n 35). [86] ibid. [87] Lisa Sharlach, ‘State rape: Sexual violence as genocide’ in Kenton Worcester, Sally Avery Bermanzohn, and Mark Ungar (eds.) Violence and Politics (Routledge 2002).  [88] In this, I concur with Rachel Harris’ testimony to the Uyghur Tribunal, in which she argues that these forms of sexual violence are interconnected, meaning that ‘sexual violence is an integral part of the planned transformation of the Xinjiang region’; Uyghur Tribunal, ‘Transcript: 4-7 June 2021’ (Uyghur Tribunal 2021) 66. [89]  Roberts (n 7) . [90] Pauline Wakeham, ‘The Slow Violence of Settler Colonialism: Genocide, Attrition, and the Long Emergency of Invasion’ (2021) 24(3) Journal of Genocide Research, 337, 344. [91] Adrian Zenz, ‘Innovating penal labor: Reeducation, forced labor, and coercive social integration in the Xinjiang Uyghur Autonomous Region’ (2023) 90 The China Journal 27; Zenz, ‘The Conceptual Evolution of Poverty’ (n 63). [92] Wakeham (n 89). [93] Benjamin Madley, ‘Patterns of frontier genocide 1803–1910: The Aboriginal Tasmanians, the Yuki of California, and the Herero of Namibia’ (2004) 6(2) Journal of Genocide Research 167; Compare Smith-Finley (n 80). [94] Nazila Isgandarova, ‘Post-traumatic growth and resilience in victim-survivors of genocidal rape’ (2023) 72 Pastoral Psychology 417. [95] For the Xinjiang context, see for example Tobin (n 20). [96] Bruce Hoffman, ‘Understanding Hamas’s genocidal ideology’ ( The Atlantic , 10 October 2023) < https://www.theatlantic.com/international/archive/2023/10/hamas-covenant-israel-attack-war-genocide/675602/ > accessed 4 January 2024. After 7 October 2023, Israel responded with an invasion that has killed tens of thousands of Palestinians. [97] Peter Dickinson, ‘Putin admits Ukraine invasion is an imperial war to ‘Return’ Russian land’ ( Atlantic Council , 10 June 2022) < https://www.atlanticcouncil.org/blogs/ukrainealert/putin-admits-ukraine-invasion-is-an-imperial-war-to-return-russian-land/ > accessed 4 January 2024; Orysia Kulick, ‘Gender and violence in Ukraine: Changing how we bear witness to war’ (2022) 64(2-3) Canadian Slavonic Papers 190; Zenz (n 55). [98]  Smith-Finley (n 80).

Eric Emeraux is the former Head of the Central Office for Combating Core International Crimes and Hate Crimes (OCLCH), France’s war crimes unit. Prior to that, Emeraux spent five years in Sarajevo as internal security attaché at the French Embassy. His book Hunting Monsters, published in 2023 in the UK, recounts the considerable work achieved with his team to track down war criminals and put an end to impunity. This written interview was conducted in December 2023.   CJLPA : During the five years you spent in Sarajevo as internal security attaché at the French Embassy, you were confronted with the horrors of genocidal wars. What were the most significant challenges you encountered in this position? What impact did this position have on the rest of your career?   Eric Emeraux : I was previously specialised in the fight against organised crime and homicide. It was mainly in this area that I worked in Bosnia-Herzegovina. Being an internal security attaché is an exciting and demanding job. You need a lot of interpersonal skills and humility to get different countries to cooperate and find innovative solutions to combat insecurity. Most of the time, cooperation is simply a matter of interpersonal relations between men and women who are willing to work together, sometimes behind the backs of their administrations. In the end, the fight against arms trafficking, human trafficking, and the fight against terrorism, particularly after 2015 and the wave of attacks that France experienced, were the greatest challenges during these five years.   But it’s also true that my assignment in this country made me aware of the impact and effects of war on people’s minds and souls. My daily life was surrounded by the horror stories that punctuated these wars. They concerned all the parties involved, dividing families, stigmatising them and leaving indelible marks, especially when justice was not served. By closely analysing certain situations, I realised how fragile human beings are because they are easily influenced, and that in the end, it’s not that complicated to turn an ordinary person into an ordinary killer.   CJLPA :   In 2017, you were appointed Head of the Central Office for Combating Core International Crimes and Hate Crimes (OCLCH). Could you briefly explain the reasons that led to the creation of this body and tell us what motivated you to work on tracking down war criminals?   EE : This office was created in 2013 as a continuation of the specialised unit of magistrates set up in 2012. As France had signed and ratified the Rome Statute, we had an obligation to try any perpetrators who may be hiding in France, in addition to the work carried out by the International Criminal Court. There are therefore two coexisting systems, one national and the other international, which implement the principles of international justice.   When my mission came to an end, the gendarmerie quite logically asked me to take command of this new unit. This is not a joint judicial police service. As I explained, having lived in Bosnia-Herzegovina helped me understand the essential role of international justice in enabling societies that have experienced the worst to rebuild. So I’ve used my experience to help in the fight against impunity, in particular by hunting down war criminals and genocidal criminals hiding in France who are staying under the radar and playing the role of model citizen.   CJLPA :   Based on your experience, what are the main challenges associated with hunting down war criminals (eg geographical and temporal distance, jurisdiction, etc)?   EE : As anyone reading the news will have realised, these investigations have a number of distinctive features, particularly when compared with investigations into other forms of serious crimes. The remoteness of the crime scene and the date on which the offence was committed, the possible lack of cooperation from the state where the offence was committed, and the dispersal of potential witnesses across several territories are all examples of the challenges that need to be met. Furthermore, the development of the investigator in an environment where European and international cooperation is common and characterised by a multitude of actors, whether public or not, makes these investigations very special. This means that our investigators need to be particularly vigilant, sharp, and often highly inventive. I often refer to them as ‘Swiss Army knives’, capable of operating in the three environments—physical, digital, and financial—that constitute the framework for advanced investigations. In addition, these investigators must be fully invested in understanding the countries and areas they are working in. History, diplomacy, and geopolitics form the basis of their work, in addition to international law, in order to appreciate the specific contexts inherent in each conflict.   CJLPA :   What shortcomings do you identify in combating international crimes and establishing accountability in the current national and international criminal justice frameworks?   EE : I believe that the normative and legislative frameworks are in place at the international level, as set out in the Rome Statute. The main challenge lies in the political will of states to adhere to these standards, to defend them on the international stage and to incorporate them into their national law. What is worrying in the current international situation is the lack of will on the part of some leaders to implement all these rules. There is even a move to ‘untie’ them, even though they are essential to the smooth functioning of humanity. They keep their people in the loop of war and hatred for reasons that are mostly unspeakable.   When we see that only two of the five members of the UN Security Council have signed and ratified the Rome Statute, it raises questions, and shows a form of hypocrisy and disdain for these standards of justice.   In the case of France, I think that this model, based on a pair of specialised magistrates and an office of investigators from the judicial police, works rather well and can serve as a benchmark. However, I regret that the human resources devoted to the fight against impunity are severely lacking, given the scale of the task, which is constantly increasing due to the deteriorating geopolitical situation.   CJLPA :   What reforms, either statutory or in practice, are necessary to strengthen the mechanisms of accountability in international criminal law?   EE : In my opinion, the frameworks are in place, including with regard to the responsibility of leaders or hierarchical superiors. The offence of the crime of aggression in the Statute makes it possible to incriminate a leader directly and to arrest them when this is materially possible. Once again, it is a matter of the political will of states and their leaders to adopt this approach, which is lacking, together with the resources devoted to this ideal of justice.   CJLPA :   Your book, titled Hunting Monsters , recounts the investigations you and your team carried out to arrest perpetrators of the worst atrocities. What prompted you to write this book?   EE : I wanted to write this book for several reasons. The first is linked to the French context. As the OCLCH is a little-known unit, I wanted to highlight the work of these investigators in the fight against impunity, which is essential to the smooth functioning of humanity. But they never work alone, and I also wanted to pay tribute to the magistrates and the multitude of international bodies (UN, European, etc) and non-governmental organisations with which we work on a daily basis with the same objective, to restore victims’ rights.   On another level, I also wanted to show the extent to which democracies are fragile regimes, especially in the current context where attempts to disestablish them are a daily occurrence. For me, the algorithms used by social networks are a real danger, and their decline is an obligation. In Europe, we live in a bubble of prosperity and security because our ancestors fought for it. And in 2020, I felt that my perception of the world was a bit disconnected from the one that prevailed in Europe. I think that three years later, everyone has now understood what I sensed at the time. Current events are a constant reminder of this.   Finally, and following on from what I have written, I also wanted to research and understand the collective mechanisms that identity entrepreneurs put in place to polarise societies. I sought to show how they construct the cognitive enclosures in which they confine individuals, ultimately using them for their own destructive purposes, how they structure fears and paranoia to manipulate minds for their nationalist, ideological, and / or religious ends.   CJLPA :   You have investigated massacres, summary executions, torture, and other abuses committed against civilian populations in countries such as Rwanda, Bosnia, and Liberia. Given the quantity of human rights violations and international crimes committed around the world, and the need for accountability, can you tell us about the process by which the OCLCH decides whether a case should be investigated further?   EE : Several criteria are taken into account. The OCLCH’s investigations always begin at national level, to demonstrate the presence of the alleged perpetrator of the crimes of which they are accused and to establish our jurisdiction. So the first factor will be the volume of information we are able to gather at national level in our investigations, in terms of testimony from victims, refugees, OSINT evidence, or financial flows.   Next, the investigators carry out an operational phase, often involving arrests, searches, and police custody of the alleged perpetrators of these crimes under the supervision of the magistrates. Then comes the request to travel to the country in question through international mutual assistance in criminal matters. In this case, the ability of the country to cooperate is crucial. If no cooperation is possible, our actions may be considerably compromised, but not impossible, as we can see in the case of the investigations into Syria. Finally, as I wrote above, the OCLCH operates among a multitude of international or non-governmental structures that cooperate with each other while respecting their prerogatives.   Our legal system, for example, allows non-governmental organisations to bring civil actions, and they carry out this work of gathering evidence and victims’ testimonies beforehand. Most of the time, the OCLCH’s work consists of taking over their investigations and eventually resulting in a criminal trial. So it’s in the light of all this data that we consider the solidity of a case.   CJLPA :   In your book Hunting Monsters , you report on several investigations involving criminals who were identified, hunted down, and convicted thanks to the harrowing testimonies of victims. To what extent are victims’ accounts a key element in the wider hunt for accountability? Are they a necessary tool to re-establish the truth and combat impunity?   EE : Our investigative techniques have evolved considerably over the years, particularly with the development of the Internet and the deployment of smartphones, video-protection, OSINT, and so on. However, all the physical or digital evidence we can gather must be backed up as far as possible by testimonies from victims, insiders, co-perpetrators, or other witnesses. The French gendarmerie has developed a training programme in interview techniques to ensure that we never fail in this highly specialised field, whatever the status of the person we have to interview. This programme was inspired by the knowledge of our Canadian comrades in this field. In one of the last trials held in France, that of the Liberian Kunti Kamara, implicated in atrocities during the first civil war in Liberia in the 2000s, all the debates focused on the testimony of Liberian victims. They travelled from their country to attend the trial in France, in Paris, and gave evidence. He was convicted on this basis, but has appealed the decision. For Rwanda, it’s the same process and we often hear from a very large number of people who are confronted each time with reenactments on the ground.   CJLPA :   In May 2020, Félicien Kabuga, one of the most wanted suspects of the Rwandan genocide in 1994, was arrested in Paris by OCLCH officers. What success does this arrest represent for international justice? Why wasn’t he arrested earlier?   EE : This is a real success for the exercise of international justice, because this individual, on the run for more than 25 years, had to be held to account. As a Rwandan magistrate told me when the news of his arrest was made public, the worst thing for the victims of the genocide would have been if he had never been arrested and they had one day learned of his death. Before the detection of certain signals that possibly positioned him in France, he could have been hidden in many countries, particularly in Africa.   His arrest was the result of three factors. Firstly, Serge Brammertz, the Prosecutor in charge of the residual mechanisms for the ICTY and ICTR, wanted to set up a task force. The aim was to nurture and develop exchanges of intelligence between the Residual Mechanism’s fugitive-tracking units and the European ‘war crimes’ units, including France.   The second factor was the way in which this case was dealt with from the French point of view by conducting an independent investigation on our side. Previously, we had only intervened in this case at the request of the residual mechanism through international letters rogatory asking us to go and check a particular address. Within this new framework, we were able to conduct our investigation independently and use the resources of our code of criminal procedure, with requisitions, such as the analysis of bank accounts, telephone data, physical surveillance, and videos. We increased these resources when we realised that Félicien Kabuga might be in France, as the investigation progressed and as we gathered information from our British colleagues.   And finally, curiously, we had a major ally with Covid and the successive lockdowns, because they forced the Kabuga family to reorganise its protection arrangements around the patriarch. We detected these movements. In addition, the investigator in charge of the case, who was also stuck at home, was able to focus on this sensitive issue.   CJLPA :   Prosecutions under universal jurisdiction are an increasingly important part of the international response to atrocities. Despite this, such prosecutions remain uncommon. Can you tell us about the challenges posed by universal jurisdiction that make states reluctant to prosecute at national level? Why does French law place a number of ‘locks’ on universal jurisdiction?   EE : I believe that the purpose of exercising universal jurisdiction is to prevent perpetrators from hiding out in France. It also allows victims to find justice no matter what, even though their rights to compensation have been violated in their own country.   At the European level, not all countries have adopted it in their legislation. For this system to be truly effective, the country must provide the resources, in particular by making specialised magistrates and investigators available in a special unit. They also need to be substantial, and not limited to the minimum to keep up appearances.   It is clear that this concept can find its limits in certain diplomatic approaches or in the actions of the intelligence services, as we saw in the case of the Syrian general al-Halabi. As France had refused him protection and the right to asylum, he was exfiltrated from our country by Mossad and welcomed by the Austrian intelligence services. These services have largely obstructed our investigation. In fact, some members of the Austrian intelligence service are being held to account for their behaviour. As this case is public, I can speak freely about it.   The locks that have been put in place in France are there for the same reasons, to facilitate this work in the shadows, to accommodate certain friends. Our investigative work often takes place in this grey area, in which certain players do not necessarily have an interest in highlighting their methods.   CJLPA :   In what way do the latest developments in means of communication, data processing, OSINT, and their integration into proceedings constitute a challenge and affect the handling of cases? For example, how do the investigations into the Rwandan genocide, which took place many years ago, and the Russo-Ukrainian conflict, which is taking place in a digital environment, differ?   EE : We are forced to work with very different investigative approaches. Between Rwanda, Syria, and Ukraine, there are three very different temporalities. In Rwanda, our investigations are focused on collecting a very large volume of eyewitness accounts and doing reenactments on the ground. Syria and the events that unfolded there showed the massive use of smartphones and social networks, which can be used as evidence, but often with a time lag. This phenomenon has accelerated considerably with Russia’s invasion of Ukraine. The new feature is the real-time collection and documentation of war crimes, even though the conflict is not over.   Investigators now face multiple challenges: the considerable volume of information that is available but often drowned in false information, in operations of influence or de-establishment, the use of artificial intelligence, and then its integration into a criminal trial.   CJLPA :   The Israeli authorities have long escaped accountability for repeated violations of international and humanitarian laws. Why do you think this is the case?   EE : This is linked to the geopolitical support enjoyed by Israel, which is unfortunately not the only country not to adhere to the standards of international justice, and I regret this. For my part, I believe that when a democratic country does not wish to apply the rules of international law and humanitarian law, this reveals a certain number of dysfunctions that the country does not wish to see brought to light. As with the fight against global warming, it is clear that differences of opinion often arise as soon as the interests of individual states are put forward rather than the common interest. And that’s a great pity, because those leaders who, for electoral reasons, maintain these positions, will bear these responsibilities before the younger generations.   But it should be noted that this new Israeli-Palestinian conflict comes fifty-six years after the United Nations Security Council called for the cessation of all acts of belligerence and Israel’s withdrawal from the occupied territories in order to achieve a just and lasting peace. Today, we must also recognise that states and terrorist groups are still intent on destroying Israel. Massive military operations are planned for Gaza, and the Palestinian people’s right to self-determination, unambiguously recognised in international law, is becoming even more complicated. Moreover, there is no guarantee that these operations will ensure the security of the State of Israel, or the right of the Israeli people to live in security in the future.   Specialists in public international law and international relations will no doubt debate what public international law allowed the parties to do, or not to do, after the heinous terrorist attacks of 7 October 2023, in a conflict that has been going on since 1948, despite all the attempts at a peace settlement. Meanwhile, it is the civilian population that is suffering from this situation.   CJLPA :   In March 2023, the ICC issued an arrest warrant for Russian President Vladimir Putin in connection with the situation in Ukraine. Why was there not the same reaction against Israeli authorities after they decided to cut off electricity in Gaza, block food convoys, and bombard civilians? Isn’t the current situation in occupied Palestine territories a large-scale war crime?   EE : I think that the current situation does indeed amount to a war crime. I also have to admit that the notion of ‘the right to self-defence’, which I’ve heard here and there, leaves me very sceptical. As I write these lines, the death toll stands at 20,000 according to some gruesome estimates [now much higher]. The Israeli army has just killed three hostages and a French embassy official who was taking refuge in a residential building. The ICC prosecutor pointed out that the principles of proportionality and distinction in attacks were not theoretical and existed only to protect innocent civilians.   As far as I’m concerned, I think we really are at a crossroads. The role, independence, and credibility of the ICC are at stake, as is all the work done by the international community since the end of the 2000s in the wake of the massacres that marked the 20th century.   If we take a close look at the two situations, in the first case it took two years of investigation and enquiry to gather the evidence needed to issue the arrest warrant. The Russian President is ‘presumed responsible’ for war crimes in Ukraine for the deportation of children from occupied areas of Ukraine to the Russian Federation. Investigations are underway to validate the offence of aggression as well, by means of an international tribunal or other means.   In the case of Gaza, as I write these lines, the bombardments are still in progress. It will be up to the International Criminal Court, which has been investigating war crimes committed in the Palestinian territories since 2021, to define the facts and the charges. Its prosecutor, Karim Khan, intends to extend the mandate to investigate violations committed both by Israeli forces in the Gaza Strip and by Palestinians through the deadly Hamas incursion into Israel on 7 October. He has promised to use the full force of the law to bring justice to the victims on both sides. But efforts to delegitimise his mandate threaten to paralyse the enquiry. All the countries that have no interest in the ICC functioning properly and in accordance with its mandate are constantly trying to undermine its work. The European Union, which strongly supports the International Criminal Court on paper, could also face opposition from within its own ranks to this ICC investigation, due to the fragmented position of the European Union on the Israeli-Palestinian conflict.   The coming months will therefore be decisive in determining the credibility of what we want to make of our humanity, either the double standard, or even the triple standard, or a single path towards the fight against impunity and international justice.   CJLPA :   Governments remain largely silent on the essential role of the ICC in bringing impartial justice, and the response so far contrasts markedly with other crises although there is a lot to investigate. Why is it essential that countries support the ICC’s investigation into Israel and Palestine?   EE : As far as I am concerned, I believe that an international and impartial investigation should be carried out by the ICC across the whole spectrum of this war. But all this depends on the cooperation of all the states, to gather evidence and obtain the custody of the accused. So, in practice, the operational support of the major players is important to the success of investigations and prosecutions, not least because of the ICC’s budgetary and implementation constraints. The other key issue is whether the ICC will be able to gain access to Israel and Gaza and to the various crime scenes.   CJLPA :   What do you think the international community or other countries can do to place further pressure to bring Israeli authorities accountable for their actions in Gaza resulting in the deaths of thousands of civilians?   EE : For this to happen, the international community must be united in the face of this situation. The terrorist attacks perpetrated by Hamas against civilians in Israeli territory on 7 October, combined with the IDF’s armed response in Gaza, have plunged the region into a humanitarian crisis on an unprecedented scale. Two months have passed since the start of the Israeli response in Gaza, and the civilian casualties, many of them children, can be counted in the thousands, or even tens of thousands, in the rubble of the towns and infrastructures of this small territory, closed like a trap on the Palestinian population. These casualties are, of course, in addition to those on the Israeli side, which are the consequence of the Hamas terrorist attack.   This situation led Antonio Guterres, the Secretary-General of the United Nations, to refer the matter to the Security Council under Article 99 of the UN Charter on 6 December 2023. The problem is that the international community is divided over the situation. The provisions of the Rome Statute are therefore being subjected to a trial by fire, if I may say. However, it should be noted that despite the divergent positions of its member states, the European Union has not expressed any objections to the jurisdiction of the International Criminal Court over Palestine. Another major obstacle to the investigation is resistance from Washington. The United States is not a member of the ICC and has long rejected its jurisdiction over non-member states. However, US President Joe Biden has agreed to help the ICC in Ukraine. This announcement, which marks a major turning point, is undoubtedly linked to geopolitical considerations, which are not necessarily without interest.   What about the conflict between Israel and Hamas? Given their geopolitical influence and their mediation in the Gaza conflict, there may be less enthusiasm. The same applies to the United Kingdom, which, although a member of the International Criminal Court, has opposed its jurisdiction over Palestine since 2021. These positions contrast sharply with those of the countries of the South (Bolivia, South Africa, etc), which referred the Palestinian case to the ICC on 17 November.   CJLPA :   Given the tensions arising from the conflict on the diplomatic stage since October 2023, can we hope that national courts will venture to apply universal jurisdiction, investigate, and bring to justice Israeli leaders? What would be the scope of these national courts and how might it be limited?   EE : Not all countries have adopted the rules of universal jurisdiction. However, as far as France is concerned, these rules make it possible to investigate French victims, French perpetrators and foreign perpetrators who have committed serious offences under the most serious fundamental crimes.   To answer this question fully, French judges will be and are being asked to launch investigations into these three categories, ie Franco-Israeli victims, Franco-Palestinian victims, or individuals of these nationalities who have committed these serious offences and who are on French territory. Everything will also depend on how the facts are classified: the offence of terrorism for the victims of the Hamas attack, and war crimes for the others.   These are the rules of law that prevail in France, and we will have every reason to check that they are applied in the weeks and months ahead. But the ultimate challenge will remain the volume of human and financial resources that will be allocated to these investigations, particularly for the OCLCH, which is already swamped with cases. But beyond these considerations, the real challenge will be the capacity to investigate in the area concerned, access to procedures already carried out on the ground—in short, the degree of cooperation from the countries concerned with the greatest transparency.   CJLPA :   Your book Hunting Monsters opens the door to a world that is little known to the general public. Why is it important to bring the hunt for war criminals and the fight against impunity to the attention of a wider audience?   EE : I think it’s essential to draw everyone’s attention, especially the younger generation’s, to the importance of the fight against impunity for the future of humanity. They need to be really vigilant, at least to the same level as concerns about global warming.   If justice is not served, then the embers of revenge remain, with all the frustrations that entails. All it takes is the arrival in power of a populist who has perfectly understood how things work, who will then blow on this smouldering fire to relaunch the process of civil war or whatever. We are then stuck in a spiral, where some people keep us there at all costs, to the detriment of the civilian population. We must always ask ourselves who benefits from the crime, and even more so from crimes against humanity.   I like to quote this proverb because it sums up what I think:   ‘When there is a war, the politicians distribute the ammunition, the rich produce and sell the goods and food, and the poor give away their children. When the war ends, the politicians collect the unfired ammunition, the rich continue to produce and sell, and the poor look for their children’s names on the graves in the cemeteries’.   I also wanted to show that we live in a world where the manipulation of minds is permanent and represents a real danger. This means that we have to be extremely cautious about what we hear, say, and write. Investigators are accustomed to using the acronym ‘ABC’ in their investigations: A for Assume nothing, B for Believe nothing, C for Check everything. This rule enables us not to allow ourselves to be guided by our emotions, which are sometimes directed by ill-intentioned individuals. We need to step back systematically from each situation and never allow ourselves to be trapped in cognitive enclosures.   CJLPA :   Based on your experience and expertise, is there a particular conflict that you think has not been sufficiently addressed and that requires greater political attention?   EE : Unfortunately, they are numerous and cover the planet. In Africa, I am thinking first and foremost of the Democratic Republic of Congo, Yemen, and all the conflicts that have taken place and are still taking place in the Horn of Africa. But Asia is also concerned.   CJLPA :   Finally, what are your future plans to accelerate efforts to prosecute war criminals and establish accountability?   EE : I continue to work as an expert for various international organisations and projects, passing on my experience in the fight against impunity. I also continue to write on the subject, but this time from a fictional angle. My next novel will be published in spring 2024 in France by Récamier. I’m also working on series projects as a scriptwriter to raise awareness of the importance of the fight against impunity for war criminals.   As I wrote above, over the last few years I’ve been more interested in highlighting the causes. And in reflecting, as others have done before me, on the mechanics of collective murder, on the criminology of the war criminal and the laws of social psychology, I have found that some human beings, like The Righteous Among the Nations, for example, refuse to abandon their moral sense and submit to obedience. On the contrary, they would risk their lives to save people in grave danger. So I try to identify these mechanisms of refusal, to highlight them, and pass them on to the younger generations, so that if they are faced with such situations in the future, they can make the right decisions, despite the pressure they will undoubtedly be under. This interview was conducted by Legal Researcher for CJLPA, Anaëlle Drut-Desombre. Anaëlle graduated from King’s College London with a Master’s degree in International Peace and Security. She has experience in various legal fields, such as sexual and reproductive health and rights and the rights of refugees and asylum seekers.

International law faces two profound issues. Each involves Article 2 of the Charter of the United Nations prohibiting the use of force by one Member State against another. Both concern the roles of the Security Council and the International Court of Justice (ICJ).   One—Ukraine and the Russian Federation (Russia)—is whether the armed entry into Ukraine on 24 April 2022 and since of Russia as a great power is immune from the rule of law.   The other—Gaza/Palestine and Israel—concerns the relations between another state, Israel, and its immediate neighbour Palestine, including the small Gaza strip. There is currently awaited on the topic of Israel’s treatment of Palestine an advisory opinion of the International Court of Justice of major importance on which judgment was reserved on 26 February 2024.   On 7 October 2023, citizens of Israel and visitors were brutally and unlawfully attacked and 1,100 people killed by members of Hamas crossing the border from Gaza who then committed the further war crime of hostage abduction of some 250 people. Israel’s response, in reliance on rights of self-defence, has resulted at the time of writing, and before a proposed forthcoming ground offensive, in over 30,000 deaths and many more injuries in Gaza in air and other attacks, said to be directed against the Hamas attackers. The victims were predominantly innocent civilians and their children. Wholesale demolition of buildings is alleged to have caused further deaths. On 20 May 2024 the Prosecutor of the International Criminal Court published a statement that he was seeking issue by ICC judges of warrants of arrest in the situation in the State of Palestine against: the Head Yahya SINWAR (Head of (Head of the Islamic Resistance Movement (“Hamas”) in the Gaza Strip), Mohammed Diab Ibrahim AL-MASRI (Commander-in-Chief of the military wing of Hamas), and Ismail HANIYEH (Head of Hamas Political Bureau) for war crimes and crimes against humanity committed on the territory of Israel and the State of Palestine (in the Gaza strip) from at least 7 October 2023; and Benjamin NETANYAHU, the Prime Minister of Israel, and Yoav GALLANT, the Minister of Defence of Israel, for  war crimes and crimes against humanity committed on the territory of the State of Palestine (in the Gaza strip) from at least 8 October 2023.   On 25 May 2024 the International Criminal Court ordered Israel inter alia to:   Immediately halt its military offensive, and any other action in the Rafah Governate, which may inflict on the Palestinian group in Gaza conditions of life that could  bring about its physical destruction in whole or in part.   Force is expressly permitted by the Charter only: (1) when used by the Security Council under Article 24 and Chapter VII in order to maintain or restore international peace and security; (2) under Article 51, which states:   Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take such action as it deems necessary in order to maintain or restore international peace and security.[1]   The reference to ‘the authority and responsibility of the Security Council’ there mentioned refers back to Article 24, which states:   In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.[2]   Either claim of entitlement to use force may be the subject of ICJ judgment under Articles 93 and 94.[3] Under Article 96, and Article 65 of the Statute of the ICJ, it may give advisory opinions on any legal question.   In both Ukraine (save erroneously for a period from 26 March 2022, which Russia ignored) and, until 24 May 2024 Gaza, the Security Council has failed to take such ‘prompt and effective action’ on behalf of the United Nations to order ceasefire. Reliance has been placed on the authority of each of the five Permanent Members to veto conduct of the Council. But there is no veto of General Assembly requests to the ICJ for advisory opinion.   The ICJ made restraining orders later discussed. The first was the order of 16 March 2022 for provisional measures against Russia, including that it ‘shall immediately suspend the military operations’ held by majority judgment of 2 February 2024 to have been made in error and set aside.   The second was an order of 26 January 2024 on the application of South Africa for provisional measures against Israel, followed by a further decision of 28 March 2024, the latter emphasizing that Israel remained bound to fully comply with its obligations under the 1949 Genocide Convention and with the order of 26 January, including by ensuring the safety and security of the Palestinians in the Gaza Strip.   Proceedings by the Republic of Nicaragua in the ICJ alleging breach of the Genocide Convention and other peremptory norms of humanitarian law by provision of aid to Israel in relation to the Gaza Strip were dismissed   There followed the order of 24 May 2024.   The ICJ’s reservation of judgment on 26 February 2024, mentioned in paragraph 3, concerns a reference by the General Assembly of the United Nations requesting advisory opinion on the Legal Consequences and Practices arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.   This essay argues that, under the Charter of the United Nations and customary international criminal law, each of its Member States has the right on behalf of its citizens to enforcement of the rule of law. Such right, a modern update of ‘civis Romanus sum’, is capable of adjudication against any infringing state. Such judicial role is essential to the right, confirming legitimate and denouncing illegitimate use of force. It is further argued that modern conditions require careful consideration of the roles of both Security Council and the ICJ, created concurrently by the UN Charter, as affecting the scope of the right of self-defence recognised by Article 51.   The Cambridge Journal of Law, Politics, and Art has kindly invited me to offer a personal perspective for the international community on related lessons from the Special Tribunal for Lebanon (STL). It was established by resolution and statute of the Security Council to investigate political assassinations in Lebanon. My appointment by the UN Secretary-General was as an appellate judge and for four and a half years I was President of the STL.   I have learned that the law, not least by reaching across to politics, and which exemplifies communication across difference, can contribute more to our troubled world than has to date been demanded of it.   Law must respond to three basic needs. The first is that because humanity entails difference, law is required to cope with it. The second, to which Lord Hoffmann added Kant’s German, is that there is no such thing as a legal concept—essential to identification of rights—beyond what lawmakers create.[4] The third, required both by the first two and by the changing nature of society, is that to create and maintain order is a continuous task: rules can and must constantly be made and, where necessary, altered.   To achieve that, the law must strive to understand political realities and to achieve outreach with its community. For that reason, in the final judgment of the STL Appeals Chamber on 10 March 2022, a separate opinion concluded:   Rule 52 requires Outreach to disseminate accurate and timely information to the public, particularly in Lebanon, about the role and functioning of the Tribunal. It set up in cooperation with 11 Lebanese universities and the Asser Institute in The Hague an Inter-University Programme to teach students in Lebanon International Criminal Law and Procedure. A participating professor [Professor Georges Masse, Chairperson of International Affairs Department at American University of Science and Technology, Beirut] described it as: the best attempt towards reconciliation in Lebanon…bring[ing] together universities and students from different backgrounds.   It is to be hoped that the combination of Lebanon and the international community, in addressing what had initially appeared an insoluble problem of identifying responsibility for the assassination, may help Lebanon in the performance of its historic role as exemplar of the rule of law. [5]   Two fundamental legal concepts warrant emphasis. One, describing current events in Ukraine, was stated by the International Military Tribunal in Nuremberg in 1946:   To initiate a war of aggression…is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.[6]   A second such concept requiring urgent attention is the legal right to enforcement of the law. Cicero’s most famous prosecution, 2093 years ago, against considerable odds sought and secured such enforcement against Verres, who as Roman governor of Sicily had ignored a plea ‘civis Romanus sum’. And Acts 22 of the New Testament records how when St Paul, arrested in what is now Lebanon, made the same proclamation, the chief captain was afraid after he learned that Paul was a Roman and because he had bound him. Paul was spared flogging and given the right to be tried in Rome.   Ukraine is suffering from Russia’s commission of aggressive war and, because of non-intervention by the Security Council, has yet to enjoy the endorsement and delivery by enforcement of the law that both the Charter of the United Nations and customary international law require. I will mention the Hariri case before returning to Ukraine. The Israel/Palestine issues evidenced in Gaza concerning each of the two legal concepts also entail non-intervention by the Security Council and are discussed later.   The Hariri case in the STL   The motivation for the Hariri attack was political. The meticulous planning and completion of the assassination conspiracy, other than its failed further abuse of the law by cover-up for the inevitable investigation may, for this Journal, be regarded as criminally artistic. The case tested the limits of the rule of law.   The Lebanese Prime Minister, Rafiq Hariri, had required an election in which Lebanese voters would respond to the UN Security Council Resolution of 2 September 2004. Its effect was that Lebanon should be rid of both domination by its neighbour Syria, and the armed element of the political and military organisation Hezbollah, each of which had survived Lebanon’s civil war. To create a new government that could give effect to the Resolution, Mr. Hariri had resigned his office.   With the election pending, on 14 February 2005 as his fast-moving motorcade traversed a main street of Beirut and approached a stationary vehicle, he and other victims were assassinated by detonation of the vehicle’s truckload of explosive triggered by its suicidal driver. Among the wrecked vehicles, damaged buildings, killed and badly burned victims, and a great hole in the roadway there was no evidence pointing to the killers’ identity beyond the military character of the explosives’ residue.   Conspirators’ phone calls made to media soon after the explosion revealed a letter and a videotape alleging a false identity of the assassins, asserted by a young man who after previous surveillance by the accused Mr. Oneissi under the command of Mr. Mehri was never seen again.   Following substantial Lebanese and UN investigation of the event, a second Security Council Resolution of 30 May 2007 under Chapter VII of the Charter created the STL. An annexed statute defined the jurisdiction, structure, and other important aspects of the Tribunal’s work. It empowered the Secretary-General of the UN to appoint the Prosecutor; the Registrar; the Head of Defence Office (such office was a novel and invaluable contribution to the rule of law); and eleven judges: an international Pre-Trial Judge; a Trial Chamber of three Judges, one Lebanese and two international; an Appeals Chamber of five judges, two Lebanese and three international; and two alternate judges, one Lebanese and one international.   It being impossible to arrest the accused, the trial and appellate hearings were conducted in absentia. The interests of the accused were protected by Defence Office appointment of experienced defence counsel, [7] and a statutory guarantee of retrial in their presence if later arrested or convicted in absentia .   To identify the assassins demanded a combination of international law and professional expertise and effort, with accompanying cost of time and money. The work of the Special Tribunal was not originally confined to the 14 February event: its Statute contemplated the investigation of other attacks on Lebanese politicians, but funding constraints led to that decision. This essay offers six proposals for future cases.   Proposal (1): Creating efficient expert systems for international cohesion to create and maintain preparedness for response to threats to peace and security.   Other actual and potential disasters including COVID-19, climate, and AI all emphasise the vital need for close expert international cohesion and response to the gravest threats, despite their complexity and cost,  seen in the Lebanon case,  the continuing Ukraine war, and Gaza.   The Hariri case required investigators to employ state of the art technology, drawing on the metadata held by the two providers of telephone services recording the making and receipt of every cell phone call and text in Lebanon over a period of seven and a half years to identify by time, date, and location the phones used in events material to the preparation, performance, and attempted cover-up of the assassination. While much care had been taken by the conspirators who had obtained and used the cell phones to suppress their own identity, their defiance of the rule of law was responded to by establishing that these had been used in four primary groups, by individuals charged to monitor and thus predict the habits of movement of Mr Hariri among Parliament, places of residence and elsewhere, and allowing the communication essential to close liaison among conspirators both to achieve the assassination and attempt its concealment.   The verdicts and their cost   The complexities of the case made it practically and economically non-justiciable without immense international effort, much of it novel, by many experts from a multitude of institutions and disciplines. It took 1,000 decisions and six and a half years’ consideration by the Trial Chamber, including two years to write its 18 August 2020 judgment of some 2,600 pages. The Chamber convicted of five crimes, including conspiracy to commit terrorism and murder, one accused, Mr Ayyash who had overseen the surveillance of Mr Hariri, continuous since his resignation in October 2005, performed by users of four covert sets of cell phones, and had taken part in the messaging that triggered the bombing. It sentenced him to five life sentences. It acquitted four other accused.   Two of the accused acquitted by the Trial Chamber, Messrs Mehri and Oneissi, were convicted on 10 March 2022 on the Prosecution’s appeal, of conspiracy to commit terrorism, and being party to other crimes including murder and attempting to conceal the identity of the assassins. No challenge was made to the acquittal of a fourth accused. A fifth accused, a Hezbollah leader with military experience, Mr Badreddine, was discharged from the indictment following a majority decision of the Appeals Chamber. It followed Defence submissions that, despite absence of a death certificate or oral evidence in support, the numbers at his funerals in Iran, Syria and Beirut contributed to establishing that he had been killed in action. The Trial Chamber’s trial judgment later held there was insufficient evidence to prove he had committed any crime. But on the Prosecution challenge to that Badreddine finding, made in support of its case against Messrs Mehri and Oneissi as co-accused, the Appeals Chamber was satisfied he had led the total conspiracy which included use for the purposes of the assassination of a covert Hezbollah cell phone system.   The action by the global community had been needed to respond to a situation beyond the capacity of Lebanon. That included the problems of the STL's funding model, which required Lebanon to meet 49% of the funding cost and left the remaining 51% to be met by volunteer states. On 31 May 2021, following the judgment of the Trial Chamber but before appeals to the Appeals Chamber from acquittals by the Trial Chamber could be heard, it was announced that inadequacy of funding required termination of the Tribunal’s work. Ultimately however, the UN undertook to assist so as to enable the Prosecution appeals to be heard and determined by the Appeals Chamber. As a result, the people of Lebanon were enabled to know the identity of Mr Hariri’s four principal assassins .   The appellate judgment of 10 March 2022 was greatly assisted by the Trial Chamber’s work. The final sentencing judgment of the Appeals Chamber on 16 June 2022 imposed five life sentences on both Messrs Mehri and Oneissi.   Lessons from Lebanon bear on the threats our world currently faces, not least in Ukraine and Gaza.   The recent and current acts of aggression against Ukraine have resulted in warfare of a kind and extent not seen in Europe since the creation of the Charter in 1945. The STL was the first international criminal tribunal charged with investigation of terrorism. Gaps in society’s preparedness for responding to unlawful use of force have extended to the ever-present threats of cross-border terrorism which, identified by a competent League of Nations report in 1937, have repeatedly been recognised by the Security Council but never made the subject of specific international criminal law. As such, the STL’s brief was to apply the domestic criminal law of Lebanon. To celebrate the eightieth birthday of the Charter only two years away we should systematise the innovation of the International Centre for the Prosecution of Aggression Against Ukraine by closing that gap. While the Secretary-General and his staff perform an invaluable task by monitoring and responding to risk, it is time to develop the UN’s admirable counter-terrorism repertoire into an institution that will monitor and help prepare in advance for the kinds of threat manifested in Lebanon and Ukraine, including cross-border terrorism short of war.   In the case of Lebanon such an institution would have added teeth and deterrence to the Council’s Resolution of 2 September 2004, and accelerated what began as ad hoc process and became a 17-year ordeal—from the assassination that attacked Lebanon’s vulnerable constitution to the final sentencing by the STL.   In the case of Ukraine, such an institution would have incentivised earlier international resistance to the 2014 invasion by Russia that has developed since 24 February 2022, and reduced the current prospects of continued and conceivably more extensive warfare.   Palestine has, since 1920, required proper international concern for those who lost their Ottoman status.   Proposal (2): there is a need for education that maintenance of the rule of law requires, and imaginative, well-organised, well-linked, and adequate resourcing sufficient to overcome competing resistance.   The Hariri assassination, the Russian invasion of Ukraine on 24 February 2022 and ensuing war, and the agonies of victims in both Palestine and Israel, raise questions of whether and how there can be preparation against such events that will enhance the prospects of peace.   In the Ukraine case, the creation of the International Centre the Prosecution of Aggression against Ukraine announced in June 2023 was described as a first step in criminal process ‘to preserve evidence and prepare cases for future trials…before national courts, a dedicated tribunal or the International Criminal Court for crimes within its jurisdiction’.[8]   But the next step, there and in the former Palestine, of finding or creating such a forum, raises a question already identified in the fourth century BCE. The election of the islanders of Melos to surrender to Athens’ powerful fleet and military, relying on the surrender as a legal entitlement to survival, had been followed by execution of its men and enslavement of its women and children. Thucydides’ reported conclusion was ‘right, as the world goes, is only in questions between equals in power, while the strong do what they can and the weak suffer what they must’.   Until 24 February 2022, many of my generation had hoped that the end of World War Two, coupled with the UN Charter’s prohibition of aggression, had overridden Thucydides, empowering the rule of law to protect the weak against the strong. But the Russian invasion of Ukraine was performed by a nuclear power and Permanent Member of the Security Council, which, as already noted, is charged by Article 24 of the Charter with responsibility for the maintenance of international peace and security. Russia exercised veto of its Council’s enforcement powers conferred under Chapter VII.   On 16 March 2022, the invasion was provisionally held by the ICJ to commit what resembles the crime of aggression which had been charged under Article 6 of the Charter of the Nuremberg Tribunal as ‘Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing’.[9] That Tribunal’s judgment stated,   The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world.   To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.[10]   But Russia’s liability to such judgment had been identified erroneously by the ICJ. Its order of 16 March 2022 had been for provisional measures in response to what would appear to be conduct meeting the test of crime against customary international law, also adopted by recent amendment to the Treaty of Rome which created the International Criminal Court. However, on 2 February 2024 that order was set aside by 12 of 16 judges of the Court, who confirmed the previous dissenting opinions of its Russian and Chinese judges that it possessed no jurisdiction under the Genocide Convention relied on for its provisional measures.   It is to be observed that Russia’s disregard of the 16 March 2022 order, erroneous as it proved to be, entailed breach of the rule of law. The proper course was to comply with it and then, as it later did, seek and obtain correction.   Had jurisdiction in fact existed, it could be said there would be double breach of the Charter and of the rule of law: the use of force against the territorial authority of its neighbour Ukraine contrary to article 2, and abuse of its position as Permanent Member and at 24 February 2022 chair of the Security Council, by failing to lead resistance to such conduct.   But since amendment of the Treaty of Rome to embrace aggression did not extend to non-parties, the International Criminal Court lacks such jurisdiction over Russia. Does modern international law therefore confirm the Athenians’ conclusion as inevitable and any attempt at effective reform as unavailable? And could greater modern preparation have averted or minimised the prospects of the Hariri assassination and the Ukraine aggression?   The present issues   The situations of both Ukraine/Russia and Gaza/Palestine/Israel each require urgent attention.   The circumstances of the aggression by Russia are very different from those of the Nazis prosecuted before the International Military Tribunal at Nuremberg. Their armies having been defeated, with one exception—Martin Bormann who was prosecuted and convicted in absentia but was in fact dead—the accused were in the custody of the Allies who as victors created the Nuremberg Tribunal and conducted the prosecution. Russia’s aggression in Ukraine has not been defeated and it has threatened use of nuclear weapons. There is no immediate prospect of bringing President Putin before a Ukrainian or international court. With the Bormann exception, no use has been made by an international court of trial in absentia except by the STL which was given jurisdiction paralleling the domestic law of Lebanon which permits such trial, but with addition of the conditions of Article 22 of the STL Statute requiring guarantee of retrial in praesentia of any accused convicted in absentia.   Whereas the STL was created by the Security Council under Chapter VII of the UN Charter, there is no equivalent international convention specifically authorising trial of Russian aggression in Ukraine. What, if anything, can and should the law do about it?   The need for change in obsolete international law: the case of companies   The Hariri  case provided a telling example of the failure of international criminal law to perform its function. According to the textbooks, a principle so ancient as to be expressed in Latin prohibited proceedings against corporations for breach of international criminal law. Reliance had been placed on the absence in the Nuremberg indictment of charges against the Nazi criminal institutions to which it referred.   The STL judges had exercised authority under Article 28 to make Rules creating an offence and penalty for contempt of the STL. Acting as Contempt Judge, I was presented with allegations that two companies had published the identities of witnesses whom the Prosecutor sought to keep confidential while means for their protection were devised. Faced with the published authority that they were immune from suit I declined to follow that opinion. It had been rejected by the common law and by many civil law states, including Lebanon whose criminal law we were charged with applying. Given the modern significance and power of companies, it would have been ludicrous for us to adopt in the application of such law an outmoded notion that would had prevented our tribunal from discharging in respect of conduct in Lebanon our due process function, by proceedings for contempt. The decision to order such proceedings was sustained by two STL review panels, one 2-1 and the other 3-0. The latter was endorsed in the US Supreme Court by Justice Sotomayor for herself and three colleagues in Jesner v Arab Bank ; the majority adopted other reasons for decision.[11] Such liability of companies for breach of international criminal law should be endorsed by international convention. Hence:   Proposal (3): confirmation of liability of companies for breach of international criminal law. Finding or creating a remedy for fundamental breach of the Charter and of customary international law. This essay would limit the scope of an opinion expressed in the Hariri case. There, despite the 2 September 2004 Resolution of the Security Council requiring both Syria and Hezbollah to terminate their military domination of Lebanon, the sole entities available to ensure compliance were the Council itself and the Secretary-General. In the Ukraine case we have the exclusion of Council jurisdiction by the Russian veto.   In neither instance existed an institution expressly charged with prosecuting relevant conduct, including performing the preliminary task now assumed by the International Centre for the Prosecution of Aggression against Ukraine, of monitoring and recording events presenting obvious risk of grave infringement of the threats to the peace and risk of aggression that lie at the heart of the Charter.   In Hariri an immediate issue concerned the criminal and civil rights of Mr. El Sayed, a military officer having been detained in custody for almost four years following the assassination but not charged with any offence. On receipt of the case from the Lebanese authorities, the Pre-Trial Judge of the STL released him from custody and also asserted authority to order disclosure of documents in the file relating to his detention. On appeal by the Prosecutor, contending that the Rules of the STL made no provision for such orders, the Appeals Chamber confirmed the decision of the Pre-Trial Judge, describing the inherent jurisdiction of the Tribunal.[12]    Its analysis could shed a conservative light, which this essay revisits, on limitations of the scope of potential proceedings against those party to the Russian invasion. The decision contrasted primary and inherent jurisdiction of international criminal tribunals:   45. …by ‘inherent jurisdiction’ we mean the power of a Chamber of the Tribunal to determine incidental legal issues which arise as a direct consequence of the procedures of which the Tribunal is seized by reason of the matter falling under its primary jurisdiction. This inherent jurisdiction arises as from the moment the matter over which the Tribunal has primary jurisdiction is brought before an organ of the Tribunal. It can, in particular, be exercised when no other court has the power to pronounce on the incidental legal issues, on account of legal impediments or practical obstacles.   The inherent jurisdiction is thus ancillary or incidental to the primary jurisdiction and is rendered necessary by the imperative need to ensure a good and fair administration of justice, including full respect for human rights, as applicable, of all those involved in the international proceedings over which the Tribunal has express jurisdiction.   46. International courts have exercised this inherent jurisdiction in many instances where their statutory provisions did not expressly or by necessary implication contemplate their power to pronounce on the matter…   48. The practice of international judicial bodies shows that the rule endowing international tribunals with inherent jurisdiction has the general goal of remedying possible gaps in the legal regulation of the proceedings. More specifically, it serves one or more of the following purposes: (i) to ensure the fair administration of justice; (ii) to control the process and the proper conduct of the proceedings; (iii) to safeguard and ensure the discharge by the court of its judicial functions (for instance, by dealing with contempt of the court). It follows that inherent jurisdiction can be exercised only to the extent that it renders possible the full exercise of the court’s primary jurisdiction  (as is the case with the compétence de la compétence), or of its authority over any issue that is incidental to its primary jurisdiction and the determination of which serves the interests of fair justice.   49. Inherent jurisdiction is, however, subject to limitations. It must be consonant with the principles of fair administration of justice and full respect for human rights and, in the field of judicial settlement of interstate disputes, with the consent or will of the states concerned.[13]   An underlying premise of our jurisdiction (underlined in paragraphs 45 and 48) was therefore the Security Council’s conferring a primary jurisdiction on the STL, which the Appeals Chamber held to be specifically authorised by the Charter. The present essay agrees that the STL was subject to such limit. But it does not accept that as a limitation of general application.   Locating or creating a suitable tribunal   Since neither the Security Council (because of Russian veto) nor the International Criminal Court (because it does not apply to aggression by Russia as non-member of the Rome Statute) has jurisdiction over states, is there simply an absence of any jurisdiction to claim authority over the Russian incursion into Ukraine?   Aside from salutary but improbable amendment of the Rome Statute, there follow three possible options.   (i) A Nuremberg-type tribunal?   A logical possibility is to create another Nuremberg-type tribunal of a group of states claiming authority to speak for the international community. It would be a considerable stretch for any such group without support by the General Assembly to claim possession of such ascendancy over Russia as to compare with that of the WWII victors after defeat of Germany and its allies.   141 of the UN’s 193 Member States supported Resolution ES-11/1 of 2 March 2022 supporting Ukraine’s protest at the armed invasion, while 5 opposed, 35 others abstained from voting, and 12 elected not to vote. But on a per capita basis the minority of states not supporting that Resolution represented more citizens than did the majority states.   While a substantial majority of states endorsed the Resolution, not only law but practical politics enter decision-making of this kind. The Charter does not confer authority on the General Assembly itself to create an international criminal tribunal. The authority of its Member States is another matter. Article 10 provides,   The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.[14]   Of particular relevance is that the Article 12 exclusion is confined to ‘While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter’.[15] By the Russian veto of Security Council consideration of the Ukraine hostilities, it has removed that exclusion.   While Article 10 permits the Assembly only to ‘discuss…and…make recommendations to the Members of the United Nations,[16] it may do so relating to ‘any questions or any matters within the scope of the present Charter’.[17] While the Council is prohibited by the Russian veto from exercising its Article 24 function of ‘primary responsibility for the maintenance of international peace and security…act[ing] on behalf of’ the Members of the United Nations,[18] it by no means follows that all UN responsibility for the maintenance of international peace and security evaporates.   On the contrary, ‘to maintain international peace and security’ are the opening words and the first purpose of Article 1, not merely of the Council, but of the United Nations. Certainly, Article 24 states that ‘In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security’.[19] That does not however give the Council exclusive responsibility for performing the Charter’s first purpose. Also, by Article 24(1), all Member States ‘agree that in carrying out its duties under this responsibility the Security Council acts on their  behalf’.[20] They must possess a residual responsibility for the maintenance of international peace and security, not least when a Permanent Member’s veto incapacitates the Council.   Ukraine, Russia, and the veto   Ukraine has the legal right to enforcement of the law (delivery rights) analogous to those of the Romans claiming ‘civis Romanus sum’, in its case as a founding Member of the United Nations ‘in accordance with our Charter’.[21] That is made specific by Article 2 of the Charter, protecting states in their international relations ‘from the threat or use of force against the territorial integrity or political independence of any state’ and by Article 1, which includes as its purposes ‘to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression’.[22]   Customary international law, underlying and given effect at Nuremberg, is similar. Delivery of such rights is primarily the responsibility of the Security Council conferred on it by all Member States of the United Nations. Article 24 of the Charter justifies reemphasis:   In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security,  and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf .[23]   But veto by Russia under Article 27 defies that responsibility. So, what is to be done?   While ‘primary responsibility for the maintenance of international peace and security’ is conferred on the Security Council, that responsibility is conferred on the Council by the Member States , and it acts on their behalf . Being conferrers to their delegate of the primary  responsibility, they must still retain power to exercise residual  responsibility for its performance. The importance of its exercise is seen in Articles 39-45 which, to achieve the Charter’s fundamental purpose of international peace and security, confer on the Council extensive powers including calling on Member States to provide armed force. The authors of the Charter were acutely aware that stern action may be required—if necessary, by military power as well as adjudication. The vital need for adjudication is emphasised by their text establishing the International Court of Justice.   Veto by a Permanent Member of performance by the Security Council of its ‘primary responsibility for the maintenance of international peace and security’ under Article 24 of the Charter for which it supposedly ‘acts on…behalf of [UN Member States]’ cannot be permitted to justify simple abdication of UN responsibility for all performance of its essential function.[24] This essay argues, rather, that if a Permanent Member causes the Council’s functions to be abdicated, the Members can and must exercise their inherent power under customary international law, employed in Nuremberg and updated in the light of the Charter, to use the vital activity of adjudication which, adopted by the Council, was employed in the STL case, and which Russia’s frustration of the Council has made essential to discharge of UN responsibilities in the Ukraine case.   President Yusuf of the ICJ has written:   Happily…there are some international lawyers that…recognize the ephemeral nature of legal rules. They recognize that the rules exist only because and for the benefit of the society that they serve. They recognize that rules evolve, grow and fall into desuetude because of the changing needs of society. Most importantly, they recognize that it is their job to identify, propose and effect these changes in practice. [25]   To give full and urgent effect to the rights to prevention and removal of threats to the peace, and suppression of acts of aggression, international law must improve its procedures. There could be no stronger case for Judge Yusuf’s approach.   So, if a Permanent Member of the Council vetoes its exercise of the responsibility delegated by the Member States, rather than accept a vacuum in relation to that fundamental responsibility, the Members must themselves be empowered, while respecting the Charter, to perform the exercise of authority under customary international law employed by the victors at Nuremberg to create a similar tribunal. The General Assembly now gives voice to states’ opinion.   It follows, in my view, that if a substantial majority of states supported an affirmative resolution of the General Assembly, a subsequent meeting of such states could lawfully and effectively justify creation of a new Nuremberg-type tribunal by a resolution in exercise of their own common right enlivened by the Council’s inability to do so.    It has been troubling to read of differences within the General Assembly in relation to Russia’s conduct. The horror, extent, and disastrous consequences of warfare make one reflect upon the nature and gravity of that conduct which has defied the Charter. It is to be emphasized that the invasion was not only a gross breach both of the Article 2 prohibition of aggression and of the customary international law propounded by the Nuremberg Tribunal, but it was also committed by the then chair of the Security Council of which its vital jurisdiction was frustrated by exercise of the Permanent Member veto, and then by disregard of the ICJ’s initial order—erroneous as it was. The rule of law demands enforcement of the Charter and international law against the conduct of Russia and those who commit infringement.   Could failures of UN Member States to support resistance to Russia’s disregard of the Charter perhaps evidence concerning differences—if not legal, perhaps human—rather than irrational enthusiasm for misconduct? In all human relations, mutual history—including presence or absence of mutual respect—can influence and determine decisions. Serious thought will no doubt have been given by UN Members to whether and how greater international camaraderie can be achieved despite diverse histories, experiences, and interests. But more is perhaps required, and urgently, not least by states which have given past offence to others, or which could lift their vision of how disadvantaged states might be assisted. The frightening statistics of global warming and forced emigration are particular aspects of the responsibility of those privileged with resources. An essay on the topic of the General Assembly vote in Le Monde’s text, with five maps, identified the votes of states in the General Assembly on 2 March 2023 touching on the climate crisis—vulnerability to and historical contribution to climate change; the COVID-19 pandemic, past and potential access to vaccines; trading relationships; and vulnerability to debt.[26]    The discussion reflected the subheading:   Refusal to sanction the Russian invasion or to give effect to the sanctions decreed against Moscow by the allies of Kiev, desire to keep one’s distance from the belligerents…[t]he Ukraine conflict has produced a geopolitical ‘continent’, the ‘global South’,[27]   a term which is itself profoundly contested, as no doubt is the heading, referring to ‘revenge’.   Debate as to the position of members of the ‘global South’ has continued. Perhaps, for any tribunal to be able to deal effectively with a nuclear power possessed of veto rights, what is required in addition to legal efforts is the reconciliation attempted by the STL’s Outreach Programme: to bring Members of the General Assembly together to discuss and resolve deep-seated differences, and to achieve for the nuclear age a tribunal that can replace the Athenians’ long accepted conclusion that the strong do what they can and the weak suffer what they must.   But is a new tribunal actually needed?   (ii) Reliance on the existing proceedings before the International Court of Justice   Two sets of proceedings before the ICJ have been mentioned. One has already been summarised and is now elaborated.   First, on 27 February 2022 Ukraine issued proceedings against Russia asserting breach of the Genocide Convention to which Ukraine and Russia are party. These did not allege genocide by Russia but contended that Russia had falsely claimed that acts of genocide had occurred in Ukraine, and then declared and implemented a ‘special military operation’ against Ukraine with the express purpose of preventing and punishing purported acts of genocide that have no basis in fact. Ukraine pleaded that, on the basis of such false allegation, Russia was now engaged in a military invasion of Ukraine involving grave and widespread violations of the human rights of the Ukrainian people. Ukraine denied that any such genocide had occurred and had brought its application to establish that Russia had no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide.   An ICJ order on 16 March 2022 for provisional measures against Russia, included that it ‘shall immediately suspend the military operations’.[28] Reasons to the contrary were given by Vice-President Gevorgian and Judge, later Vice-President, Xue. She—while fully endorsing the call that the military operations in Ukraine should immediately be brought to an end—shared and elaborated Vice-President Gevorgian’s opinion that the dispute that Ukraine wants the Court to decide upon relates to the use of force. However, as the Court has held in previous cases, the use of force is not governed by the Genocide Convention. Therefore, the Court lacks jurisdiction. That proved to be an aspect of the ultimate decision.   That the order for provisional measures, including an order that Russia suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine responding to alleged genocide by Ukraine, was not a final judgment; that although 32 states intervened with written and oral arguments supporting Ukraine following substantive hearing on fact and law the 24 February 2022 approach was reversed in the final judgment of 2 February 2024, resulted in defeat for Ukraine on that issue.   The second relevant proceedings concerned the UN Terrorist Funding Convention case brought by Ukraine against Russia in the ICJ on 16 January 2017, which alleged breaches of the Convention including its infringement by terrorism.[29] One argument on a preliminary point resulted in a decision rejecting the Russian contention that conduct by its forces falls outside that Convention.   Following exchange of written and oral submissions on 14 June 2023 the ICJ reserved its judgment, which was delivered on 31 January 2024. The crucial second argument, whether the Convention’s prohibition of providing ‘funds’ for terrorist purposes applied to weapons, was accepted by only three members of the Court. Ukraine succeeded only on a point so subordinate that the relief granted was limited to recording that success.   (iii) General Assembly recourse to ICJ based on Article 96 of the Charter   Article 96 of the Charter states that ‘the General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question’.[30] Russia subjected itself to such jurisdiction as member first of the League of Nations and then of the UN Charter that replaced it.   An ‘advisory opinion’ does not, like a criminal conviction, carry further formal consequences such as imposition of criminal sentence. The separate opinion for the liability judgment of the STL concluded that, to make a factual finding not open to a reasonable tribunal, constitutes error not only of fact but of law.[31]    It followed in that case that acquittals on the basis of factual findings not open to a reasonable tribunal could be and were errors of law over which alone the Appeals Chamber had jurisdiction. That is, in my view, the true basis on which the acquittals of Messrs Mehri and Oneissi should be set aside and replaced by convictions.   In practical terms, even if Russia had not vetoed the Security Council’s exercising jurisdiction in the Ukraine case, there may have been little prospect of the Council’s ordering unarmed force against Russia—a nuclear power—under Article 41 to arrest suspects in that state, let alone using armed force under Article 42 or indeed ultimate authority under Article 43 to call for armed intervention by other States.   Nevertheless, once a request to the ICJ for its opinion is accepted by the ICJ, under its ordinary practice the opinion of the ICJ whether breach of Articles 1 and 2 were proved would follow. It can be expected there would be meticulous due process, including full right of interested states to present evidence and submissions. The fact that the Rome Statute does not confer aggression jurisdiction on the International Criminal Court in relation to Russia and certain other states does not limit the jurisdiction of the ICJ under Article 96. And any judgment of the World Court enters the history books.   Despite the ICJ’s acceptance that it lacks jurisdiction in the Genocide case, recognising the provisions of the Charter as to breach of Articles 1 and 2 (and despite Russia’s ability to veto Council decisions), there is no legal reason why Russia should not be subject to any General Assembly recourse to Article 96 empowering request to the International Court of Justice for its legal opinion of Russia’s conduct. There could be no objection to the General Assembly now asserting such propositions for abuse of Articles 1 and 2.   Hence, on the basis of options (i) or (iii) there follows an affirmative answer to the next Proposal:   Proposal (4): find or create a remedy for fundamental breach of the Charter and of customary international law.   What of trial in absentia?   The common law does not permit trial in absentia , being unable to see how such a trial could be fair. That opinion underlies two recent judgments of the UK Supreme Court endorsing judgments of the European Court of Human Rights.[32] But its discussion does not extend to the authorisation for a court to operate a system permitting trial in absentia  where there is guarantee of retrial of the accused de novo following any such conviction. The legitimacy of such course was a major topic of discussion when the judges of the STL visited the President and other judges of the European Court of Human Rights to discuss such process, which that Court had permitted.   The topic is discussed in a Case-law Guide   funded by the European Union’s Justice Programme:   As transpires from the case-law of the ECtHR, proceedings conducted in absentia  are not in and of themselves incompatible with Article 6 of the Convention. However, a denial of justice nevertheless undoubtedly occurs when a person convicted in absentia is unable subsequently to obtain a retrial from a court which has heard him/her[33]   The essence is that the two stages— in absentia hearing and subsequent hearing in praesentia —together protect the rights of the accused.   The use by the STL of such trial in absentia was authorised by Article 22 of the STL Statute derived from the French/Lebanese domestic law. In Decision on Defence Appeals against the Trial Chamber’s Decision on Reconsideration of the Trial in Absentia Decision,  the Appeals Chamber   concluded that Article 22 of the Statute and Rule 106 of the Rules, interpreted in light of the international human rights standards, require that in absentia trials are possible only where i) reasonable efforts have been taken to notify the accused personally; ii) the evidence as to notification satisfies the Trial Chamber that the accused actually knew of the proceedings against them; and that iii) it does so with such degree of specificity that the accused’s absence means they must have elected not to attend the hearing and therefore have waived their right to be present.[34]   We held that these requirements had been met by the Prosecution.   Could the guarantee by Article 22 of retrial de novo   of a person convicted and later arrested justify use of trial in absentia against a state which committed aggression against another state in breach of Articles 1 and 2 of the Charter? Given the general refusal of the common law to permit trial in absentia at least unless the accused has been arrested and absconded, I have reflected on whether there are issues of principle about its acceptability against an accused who is not held in custody by the contemplated trial state or international tribunal. I conclude for four reasons the answer may properly be no.   First, having encountered at first instance and on appeal retrials ordered because of error or deficiency at a previous trial, and found that New Zealand jurors have proved themselves well able to heed judicial instruction to ignore the prior trial and verdict, retrial before a judge or judges alone should present no greater problem.   Second, the European Court of Human Rights as well as the Security Council in the Hariri  case has accepted the legality of trial in absentia provided there is the guarantee of retrial following any conviction in absentia.   Third, it is unacceptable under the rule of law for any power, nuclear or not, to be able to employ Thucydides’ argument that power brings immunity. Such argument might justify a sufficiently supported Resolution by the General Assembly to create a Nuremberg-type criminal tribunal and trial in absentia. It could in any event in my view be used together with Article 96 to demonstrate a due process after hearing all conceivably relevant evidence.   Fourth, I am advised that trial in absentia is recognised in Ukraine. Russia has elected to enter Ukraine in breach of Articles 1 and 2 of the Charter. Such conduct constitutes waiver of any rights to object to trial in absentia under Russian law and acceptance of subjection to the law of Ukraine.   While this option offers a forum accepted by Russia in both the League of Nations and the United Nations, it again in my view requires of General Assembly Members the reconciliation already discussed. Subject to that it is proposed:   Proposal (5): where prima facie evidence is established against a state, it is therefore appropriate to employ trial in absentia in respect of any state which declines to subject itself to trial in praesentia .   It follows that a combination of these arguments would at last allow international law to reject the debated attribution to Thucydides’ of the despairing record of Athens’ conclusion. As seen in Russian enthusiasm for and competence in music, the arts, intellectual achievement, and competition within the rules of the Olympic community, its citizens prize and desire to display accomplishment beyond brute force. That is exemplified by the Russian legal genius Fyodor Fyodorovich Martens, whose famous Clause has long been fundamental to the law of war: that ‘the inhabitants and the belligerents remain under the protection and the rule of law’ and ‘nations, as they result from the usages established among civilised peoples, from the laws of humanity and the dictates of public conscience’.   When these factors are coupled with the present arguments there is room for optimism as to a conclusion that—whatever their military or other physical power—since the Charter, no person or institution has been above the law, of which moral force is unchallengeable.   Gaza/Palestine, Israel, the Security Council, and the International Court of Justice   At the time of writing, following the total of over 46,000 deaths currently asserted on both sides of the border, and before the ICJ Order of 25 May 2024, Israel had signalled intention to perform a further major ground attack across the border into Gaza. It asserts entitlement and a need to do so both to release the hostages whose taking itself constitutes a war crime, and to rid itself from future attack by surviving members of Hamas. It sees deaths and injuries of innocent victims, and presumably of its own military, as an unavoidable consequence of necessary hostilities.   There are however four further and related considerations that have received insufficient attention. They are:   the limits of Article 51 now repeated; the role and function of the Security Council; the significance of Palestine’s status and the International Court of Justice; the future of Gaza, Palestine and their relations with Israel.   As to (1), Article 51 begins with a general and, by itself, broadly expressed clause: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations’.[35] But its effect is terminated when the next phrase is implemented: ‘until the Security Council has taken the measures necessary to maintain international peace and security’.[36]   I repeat the final sentence which emphasises both the authority  and responsibility of the Security Council:   Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take such action as it deems necessary in order to maintain or restore international peace and security.[37]   That sentence refers directly to Article 24:   In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.[38]   There is implicit reference also to the extensive provisions of Article 39 requiring the Council to ‘determine the existence of any  threat to the peace, breach of the peace, or act of aggression’ or decide ‘what measures shall be taken in accordance with Articles 41 or 42’ respectively, that is either without or with use of the armed force which by Article 43 all Members of the United Nations undertake to make available.[39]    And Article 40 empowers the Council to order provisional measures.   Properly read:   (i) the right of self-defence is a temporary one until the Security Council ‘has taken the measures necessary to maintain international peace and security’ in a manner that ‘ensure[s] prompt and effective action’;[40] (ii) it is among the duties of the Security Council to ensure prompt and effective action by the United Nations; (iii) that is because only when it does is an assailant stopped from exercise of proportionate self-defence.   As to (2), such responsibility and duty of the Security Council to ensure prompt and effective action by the United Nations is accentuated by the fact that the General Assembly has requested the advice of the International Court of Justice about ‘Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem’. Written statements filed by Israel and 54 other states were followed by a week of public hearing from 19 February 2024.   That Israel’s conduct in Palestine is considered by the states of the General Assembly, and also the ICJ with its discretion to reject such request, to be of such importance as to warrant such investigation was and is to be weighed against difficulty, complexity, importance, and prospect of casualties for both Gaza/Palestine and Israel if there is no ceasefire until objective assessment of the implications of further hostilities. Safeguarding the hostages is of the highest priority. So too is protecting innocent civilians. There has always been need for sensitive and judicious evaluation of how many further such deaths might to be risked by permitting further hostilities. That function is in my view, especially given the prospect and reality of the ICJ advisory opinion, the proper role of the broad-based Security Council, not effectively passed by it to Israel. Retrieving the hostages and imposing international peace and security would presumably include not only a carefully planned two state proposal fair to both Palestine and Israel, that might draw on advice from the ICJ now considering relevant issues; but conceivably the military intervention that Article 43 contemplates, with state assistance under UN command. The Council could evaluate the option of considering Israel’s local advantages as such participant, together with disadvantages.   The Council is well capable of assessing the need for arrest of those who have committed crimes. It can and in my view should endorse any justified decision of the International Criminal Court to apply resources against individuals for that purpose. And the ICJ is uniquely equipped to make the relevant judgments regarding (3), Palestine’s status that it is currently considering. Historical facts include the defeat of the Ottoman Empire in WWI and the San Remo Conference in April 1922 at which a mandate was granted to the United Kingdom giving effect to Article 22 of the League of Nations. Its policy was that ‘the well-being and development of such peoples form a sacred trust of civilization and that securities for the performance of this trust should be embodied in this Covenant’.[41]   It included recognition that:   Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized…until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory[42]   Under the United Nations Partition Plan for Palestine on 29 November 1947 there were created separate Jewish and Arab states. On the termination of the British mandate on 15 May 1948 the State of Israel was proclaimed and the 1948 Arab-Israeli War began. Discussion of issues as to the status of the Arab part of the former Palestine and its people, and responsibilities of an occupying state, is currently best left to the ICJ.   Finally, as to (4), after nearly six decades of anguish from unresolved disputes, the horrors of 7 October and since should now be subjected to the processes described by Helen Clark on 26 October in a notable radio address.[43] The Two State Solution, recognising the equal value of Israeli and Palestinian, living in neighbourly peace, requires the mature meeting of representatives of each that in the Alabama arbitration avoided war between the UK and the USA, that is accommodated by the Permanent Court of Arbitration on one side of the Peace Palace with the ICJ on the other. There are already too many deaths. Now is the time to put the past aside and focus on the future, by the Security Council seizing itself of the present and future of Israel and Palestine. What matters to decision-makers in both states is the future of their and their neighbours’ descendants. The classic statement ‘Blessed are the peacemakers, for they will be called the sons is God’, is said to derive from the Hebrew word shalom.   Proposal (6): Confirm by convention the overarching principle of reconciliation   Key takeaways (1) No state is immune from compliance with International Criminal Law. (2) Each Member state of the United Nation possesses the right of enforcement of (1). (3) It is the duty of the Security Council to: determine the existence of any threat to the peace, breach of the peace, or act of aggression; take prompt and effective action for the maintenance of international peace and security. (4) Despite veto of action by the Security Council the right in (2) is justiciable if recognised by the General Assembly and Member states. (5) The right of self-defence is interim, terminating when the Security Council has performed its duties under (3). (6) So long as it lasts, such a right must be exercised proportionately. (7) In terms of Proposal (2), there is need for education that maintenance of the rule of law requires imaginative, well-organised, well-linked and adequate international law, institutions and resourcing sufficient to overcome similar competing resistance from terrorists and other offenders. (8) In terms of Proposal (1): establish efficient expert systems for international cohesion to create and maintain preparedness for responses to threats to peace and security; give effect to: Proposals (2) (takeaway (7) above) as to education, (3) as to criminal liability of companies, (4) to find or create a remedy for fundamental breaches of the Charter and of customary international law, (5) trial in absentia for aggression as proposed above   in respect of a citizen of any State which declines to facilitate trial in praesentia . (6) confirmation by convention the overarching principle of reconciliation.   Overarching the Gaza issues is the forthcoming judgment of the ICJ. Perspective of the future of International Criminal Law   The example and advice of the Somali judge President Yusuf, that rules evolve, grow, and fall into desuetude because of the changing needs of society, and that it is the job of international lawyers to identify, propose and effect necessary changes in practice, was given in an address in honour of the Italian President of both Yugoslav and Lebanon tribunals, Antonio Cassese. During the pre-trial phase of the STL proceedings an order of President Cassese had referred to the promotion of reconciliation as part of the Tribunal’s purpose.[44] He in turn published the damning indictment by the French professor René-Jean Dupuy, saying ‘Today, progress in law lies in trying to respond to values. And the major value, in my opinion, is human rights, which have never been so talked about and yet ignored’.[45]   The celebrated Finnish jurist Martti Koskenniemi, having said that international law ‘has a wonderful political and intellectual potential’, added ‘but…has…become - malgr é soi— a small bureaucratic discipline at law schools’.[46]   These four masters of international law have performed their task of explaining to the rest of us the need for law to identify and confront breaches of international human rights. But in the cases of Ukraine and Gaza, that need requires not only intellect but the common sense which throughout history has defined actionable injustice.   The two cases each cry out for fundamental change in the way international criminal law is understood and performed.   Nuremberg’s classification of aggression as the supreme international crime is unchallengeable. It applies to both Russia’s invasion of Ukraine, and Hamas’s killing of the 1100 victims of 7 October. The abduction of the hostages is in flagrant breach of the Geneva Conventions of 12 August 1949 reproduced in Article 8(2)(a)(viii) of the Rome Statute, expressed in the list of war crimes simply as ‘Taking hostages’.   And as to Israel’s response to grievous injury, Edward Jenks’ student text A Short History of English Law , describing what he termed ‘the Early English period’, simply reported that,   indiscriminate vengeance is intolerable. The man who has been wounded by a chance arrow must not shoot at first sight the first man he happens to meet. He must make some attempt to identify the aggressor. If the wound proves fatal, the relatives of the slain may avenge the victim. But they, too, must not slay indiscriminately; they must restrict their vengeance to the murderer, and his kindred, who may be supposed to be sheltering him…[The victim of a wrong] may not make good his loss at the expense of his peaceful neighbour, who has done him no wrong.[47]    These principles—criminalising aggression, and requiring proportionate response to wrong, that does not injure the innocent—apply equally to all citizens of the globe. There is a greater need than vengeance—the reconciliation initiated by fair trial instead of mass executions that in my lifetime has seen the country of the Holocaust Nazis create the leading human rights institution bearing the same name as the court of trial—the Nuremberg Principles Academy. That option, ultimately required after every war in history, must be kept open in Ukraine, as it certainly does in Gaza where, at last, the two State solution may be returning to favour. But it must be accelerated and enhanced.   I attempted in a recent essay[48] to discern a ‘Perspective of the future of International Criminal Law’. It concluded that ‘to be fit for purpose, international criminal law must make full use of Reconciliation, respecting and promoting the equality and dignity of all people’. It does not decry legitimate need for self-defence but argues that the D-Day landings aimed at defeating Nazi Germany, with the effect of killing en route not only German military who resisted that purpose but innocent civilians as well, had as their overarching justification a reconciliation in terms of the restoration of peace in Europe. Now what is needed is restoration of peace on equal terms for the people of Ukraine as well as Russia, and for the people of both Israel and Palestine.   The International Court of Justice has earned global confidence. Its final judgments in both the Russia/Ukraine and Palestine/Israel cases are awaited. The exercise of power over another requires both lawful authority and proportionate assessment of the whole picture. It is to be hoped that the prospect of that court’s analyses of indisputable fact, and application of legal principle, may influence those responsible for exercise of such power. Sir David William Baragwanath David Baragwanath is a retired New Zealand judge. He was a member of the Appeals Chamber of the Special Tribunal for Lebanon at the Hague, serving for a term as President.  [1] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI article 51. [2] ibid article 24. [3] By the former all Member States of the United Nations are parties to the Statute of the ICJ. By the latter such Member States undertake to comply with the decision of the ICJ in any case to which it is a party. [4] See Meridian Global Funds Management Asia Limited v The Securities Commission [1995] UKPC 5, [1995] 2 AC 500 [ 10], in which Lord Hoffman said when referring to the statutory obligations of a company, ‘There is in fact no such thing as the company as such, no Ding an sich , only the applicable rules’. [5]  The Prosecutor v Mehri and Oneissi (appeal judgement) STL-11-01-2/AC (10 March 2022) [68]. [6]  Judgement of the Nuremberg International Military Tribunal [1946] part 421. [7] One accused’s second counsel was a distinguished English QC. [8] Eurojust, ‘History in the making—the International Centre for the Prosecution of the Crime of Aggression Against Ukraine starts operations at Eurojust’ ( European Union Agency for Criminal Justice Cooperation,  3 July 2023) < https://www.eurojust.europa.eu/news/history-making-international-centre-prosecution-crime-aggression-against-ukraine-starts-operations-at-eurojust > accessed 30 October 2023. [9] The Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers (Nuremberg Treaty) (8 August 1945). [10]  Judgement (n 6) part 421. [11]  Jesner v Arab Bank, PLC [2018] No. 16-499, 584 U.S. ___ (2018). [12]  Matter of El Sayed  (El Sayed Decision AC) STL-CH/AC/2011/01 (12 May 2011) [45-49]. [13] ibid, emphasis added. [14] United Nations Charter (n 1) article 10. [15] ibid article 12. [16] ibid article 10. [17] ibid. [18] ibid article 24. [19] ibid. [20] ibid, emphasis added. [21] ibid article 2. [22] ibid. [23] ibid. [24] ibid [25] Abdulqawi Ahmed Yusuf, ‘The Role of International Lawyers between Theory and Practice’ (2017) 15 Journal of International Criminal Justice 603, 612. [26] Philippe Ricard and Gilles Paris, ‘War in Ukraine: The revenge of the Global South’ ( Le Monde, 14 July 2023) < https://www.lemonde.fr/en/international/article/2023/07/14/war-in-ukraine-the-revenge-of-the-global-south_6053397_4.html > accessed 30 October 2023. [27] ibid. [28] Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide ( Ukraine v Russian Federation) (Provisional Measures) [2023] ICJ Rep 182 [5]. [29] Application of the International Convention for the Suppression of the Financing of terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination ( Ukraine v Russian Federation ) [2017] ICJ Rep 166. [30] United Nations Charter (n 1). [31]  The Prosecutor v Mehri and Oneissi  (n 5) [12-14]. [32]  Bertino v Public Proecutor’s Office Italy  [2024] UK SC 9 para 28 citing Lord Bingham’s endorsement of jurisprudence of the European Court of Human Rights and Mercatriu v Judecatoria Aead, Romania  [2024] UKSC 10 para 54 relying on a Grand Chamber of the European Court of Human Rights both delivered on 6 March 2024. [33] ‘Improving Mutual Recognition of European Arrest Warrants for the Purpose of Executing In Absentia Judgments: Case-law Guide’ (InAbsentiEAW, 2020) 32 < https://www.inabsentieaw.eu/wp-content/uploads/2020/02/InAbsentiEAW-Case-law-Guide.pdf > accessed 10 March 2024. [34]  The Prosecutor v Ayyash et al  (In Absentia Reconsideration AC) STL-11-01/PT/AC/AR123.1 (1 November 2012)   headnote. [35] United Nations Charter (n 1). [36] ibid. [37] ibid. [38] ibid. [39] ibid, emphases added. [40] ibid. [41] The Covenant of the League of Nations, Including Amendments in Force (1 February 1938) article 22. [42] ibid. [43] Radio New Zealand, ‘Punishment of Civilians in Gaza Amounts to “Clear violations of International Humanitarian Law”’—Helen Clark’ ( RNZ , 26 October 2023) < https://www.rnz.co.nz/news/world/501021/punishment-of-civilians-in-gaza-amounts-to-clear-violations-of-international-humanitarian -law-helen-clark > accessed 30 October 2023. [44]  The Prosecutor v Ayyash et al. (Order Pursuant to Rule 76) STL-11-01/PRES (18 August 2011) [15]. [45] Antonio Cassese, Five Masters of International Law  (1st edn, Hart Publishing 2011) 38. [46] Martti Koskenniemi, The Politics of International Law: A Critical Introduction (Hart Publishing 2011) 1.   [47] Edward Jenks, A Short History of English Law: From the Earliest Times to the End of the Year 1911 (Butterworth & Co 1912) 7. [48] In Morten Bergson, Emiliano J Buis, and SONG Tianyin (eds), Philosophical Foundations of International Criminal Law: Legally Protected Interests (TOEP 2022) 139.