Luis Moreno Ocampo is an Argentine Lawyer and prosecutor who played a critical role in the Trial of the Juntas during Argentina’s democratic transition and later went on to serve as the first prosecutor at the International Criminal Court from 2003-2012. He is now a senior fellow at the Carr Center for Human Rights Policy at Harvard University. CJLPA : Thank you for taking the time to interview with The Cambridge Journal of Law, Politics, and Art  to discuss your incredibly influential career as a prosecutor both in your native Argentina, and subsequently as the first Prosecutor of the International Criminal Court. In Argentina, during the democratic transition, you played an instrumental role in holding senior military commanders responsible for human rights violations. Then at the ICC, you opened investigations into numerous alleged international crimes and oversaw the first complete trial at the court. Since then, your continued work on the issues of international justice and accountability has been crucial as the field of international criminal law evolves to meet the challenges of our time.   I’d like to start by giving you the floor, as you indicated there’s something you’d like to turn our readers attention towards.   Luis Moreno Ocampo : I really appreciate this conversation, because I never studied international law or international relations at university. I learned by doing, by practice. But after I finished my ICC tenure, I was studying and teaching at Yale and Harvard, and I’m shocked because I received a legal mandate, but no academic discipline is covering it. People who are concerned about human rights believe that prohibitions stop crimes, but people who study international relations understand that law is utopia. It’s about power, the world is in anarchy, and you need an army to protect yourself. This is why I’m very glad that we’re having this conversation, because we are challenged in how to present what I’m saying in a way that your readers follow. Let me give you an example. This morning, I had a call from Armenia asking if I can produce a report for them on what happened today in Artsakh. Artsakh is an Armenian region inside of Azerbaijan. The only way to get food and medicine and oil is through a road that connects Armenia with Artsakh. There is an international treaty signed by Armenia, Azerbaijan, and Russia, saying that this corridor needs to be open. However, in June [2023], Azerbaijan closed the road, using different arguments. And now basically a genocide is happening today against Armenians. It’s not the Armenian genocide 100 years ago. It’s today. And because we are so segmented, and political interest is in Ukraine, and economic interest is on the side of Azerbaijan, nobody is even talking about it.   That’s the problem, when cases arrive to court it’s very clear and there is no power problem. The judge has the power. But before that, you need states to prevent conflict and crimes, and that is always complicated. And that was my experience. For me, being a prosecutor is like being a cook. You have to combine food to produce a good meal. And when I went to Harvard, I thought I would learn how to cook. But in Universities, they segment the story and there is no teaching of how to cook. It’s teaching about what the ingredients are. And when you are dealing with these conflicts, like in Armenia or Ukraine, they’re about crimes, law, facts, perpetrators, political interests, economic interests, the media. They’re about so many things that you have to combine. And that combination is not being taught. That’s the main idea in my book. My practice is not exactly international law, or international criminal law, or international relations.   CJLPA : I’m interested in this idea of segmentation, and I’m wondering how you feel we can begin to harmonize those different disciplinary perspectives. Are there institutional ways that we can go about incorporating all these things together?   LMO : My feeling is that we need to do case studies. Case studies allow you to combine what we call different academic fields. I don’t think we can do a theory on international court, but we can do a case study helping us to connect the problems, not to stare at them in isolation. That’s my suggestion. That’s why my book is about. It’s a case study about my practice connecting these different dimensions.   Stephen Krasner at Stanford, one of the biggest professors on this topic, is very smart and very candid. And we were friends because I was teaching there ten to 20 years ago. And he told me, ‘I don’t understand what you say, because law is not part of my discipline. We focus on power’. And I say, ‘Stephen, you’ve got a problem, because you are missing that law creates power’. When the state parties appointed me as a prosecutor, they gave me enormous power. I can indict head of states—imagine! And not because of me; the function of the prosecutor is nothing personal, it’s the law creating power. So, you have a problem. If you want to understand power in the 21st century, you have to understand law. And the professors are happy to keep the boundaries very strong. Another friend of mine was commissioned by Oxford University to write a book about the ICC. And we became friends because he interviewed me so many times. When he finished the book, he asked for my opinion. I said ‘look, I love your book because in chapter one and chapter two you describe very accurately the facts, describing how things were changing. But what’s shocking for me was that the conclusions are that nothing will change. So, what is the relationship between your conclusion and your book?’. And he said ‘Luis, please, I need tenure’. And the point here is that he understood that the members of the jury will evaluate his book according to their own thinking, and they’re all people who don’t like change. He got tenure.   What I found is that the academics, the scholars, talk between themselves trying to protect their boundaries without crossing the boundaries. And if you’re a young scholar, trying to make interdisciplinary analysis, you are dead and no one will promote you because the different disciplines will say ‘no, you’re not part of us’. To escape that, I think we need to do case studies to understand and learn. Because for me, we cannot say it’s just law, we cannot say it just power, we’ve got to understand the interaction between them. And so, the issue is not which will prevail, the issue is how to harmonize them. For me, that is what’s needed. And through case studies—and that’s what I tried to do with my book—we learn that in some cases there were efforts to harmonize things, and in some cases it was not possible. That is, for me, what we learn in case studies, trying to understand who the decision-makers are, how they interact, and how we can harmonize.   CJLPA :   Do you feel that practitioners of international criminal law and political leaders around the world understand this relationship between law, politics, and power? Or do you feel like the practitioners and the political actors are also not acknowledging these interconnections?   LMO : I feel I have a curse, because the only job that requires one to combine these different dimensions is the prosecutor. Because if you’re a judge, you need to discuss power. When you’re the judge, you have all the power to make decisions and the rules are clear. Of course, the problem is when you issue a warrant, then you expect the state to follow your instruction, and they don’t. As soon as the problem leaves the courtroom, the judges lose their control. So, for them, it’s difficult to track the political quality of people.   There are no global political leaders. American leaders will represent American voters, French leaders will represent French voters, and Russian leaders will represent Russian people, so none of them need to integrate information. They just follow their own national interests. As [Martti] Koskenniemi said very rightly, international law is whatever the state decides to define as international law, because each state is following its own prerogative. The ICC formed with the procedure of impartial actors, not following national agendas and forcing other countries to act. That is the beauty of this. But my frustration is that the ICC is like a first model, and we can keep evolving. We can even use the idea of the ICC in climate change. For me, the ICC—beyond the criminal component—is the new idea of combining national states with rules and one independent enforcement mechanism to implement the rules. That is the beauty of the design that could be applied to climate change, global pandemics, or international terrorism. But we are missing that part.   I love this conversation because your generation should be in charge, but they have to understand it’s not about insisting on international law, or just insisting on power. No. How do things combine? The example in the book is to imagine a traffic light with the red light and green light on at the same time. It’s not about understanding ‘red you stop’ and ‘green you go’, it’s ‘what do I do when I have both at the same time’? How to harmonize that? That for me is the challenge of your generation.   CJLPA :   Following up on finding harmony between international law and the power of individual states, how do you see the court progressing in the next generation and how do we continue to bolster international respect for its authority?   LMO :   Well, we need new ideas. In my time, I saw how a young group of people, Invisible Children, using what was a new technology in those days, YouTube, produced a documentary called Kony 2012. That became viral and in six days they reached 120 million viewers. And they combined this pressure from young people from all over the world with work with the US government, African Union, and Uganda and really ended the crimes committed by Joseph Kony in Rwanda and the Central African Republic. So that is a good example, and now we have even more [tools and technology].   In 2003, I was teaching at Harvard. I left Harvard to go to the ICC. In 2003, Zuckerberg left Harvard to create Facebook. After Facebook you have Instagram, you have TikTok, you have Twitter, you have many other applications. But the ICC remains the same. That for me is the problem. We don’t have thinkers evolving and moving beyond a nation-state understanding. We need nation-states, but we need something bigger for some problems—not all problems—and we’ll have to distinguish that. Massive rapes and killing of women is a global issue. Marrying four women in Muslim countries is not so global, it’s a national debate. So we’ve got to distinguish between problems which are national or local, and problems that are global. Genocide, crimes against humanity, and war crimes are clearly global problems. Climate change is a global problem, pandemics are global problems, so we have to think about those new problems in new ways, beyond nation-states.   CJLPA : During your time as the ICC prosecutor, you had to work with the Security Council, whether through referral of a situation by the Security Council to your office or when suspending an ICC investigation or prosecution. In light of the different political agendas and alliances of the Security Council’s members, especially considering the veto power of the P5, how does the ICC ensure that crimes pursuant to the Rome Statute are investigated when they need to be?   LMO : The ICC cannot do that, because the jurisdictional decisions are taken by states. That’s very important, to distinguish responsibilities. The state parties accepted this intervention, and then the prosecutor is responsible. But the non-state parties, including some of the biggest countries, don’t accept it. So, it’s their decision, or the Security Council’s decision. Ensuring justice is not a matter of judges, it’s a matter of politicians.   CJLPA :   Following from that, do you feel that there are any institutional or mechanistic changes that can be made to increase access to justice if we are at the mercy of politicians?   LMO : We need new tools, because the nation state system is based on representative democracy. People vote on representatives, and they make decisions. But, if you are in Artsakh, and you’re a victim of the current genocide, you are not represented in Azerbaijan, or in Israel, or the US. So basically, these people have no representation. Therefore, maybe we should invent some artificial intelligence connecting the victims of Artsakh with American people, British people, people in different countries and they can influence their own representatives, transforming what was a nation issue into a global international issue.   That’s what happened with Kony 2012. The were able to transform a remote conflict in Uganda into an issue that the US was involved in. So that type of connection, helping young people to do that and to help victims who are underrepresented to be represented in different forums. That could be one solution. In my experience I saw all the possibilities. France, for instance, managed to get a UN Security Council referral in a time where that was impossible. How France forced the US to accept that referral is fascinating, because that shows the possibilities.[1]    CJLPA : Considering different avenues of accountability, what is your opinion on the use of Universal Jurisdiction by national authorities? We have seen recent use of this tool in Germany, convicting a Syrian intelligence officer of crimes against humanity. Do you think using universal jurisdiction may be more of an appropriate and realistic legal avenue to establishing accountability and serving justice for the victims?   LMO :   In the case you mention, the person indicted was in Germany, and that provided Germany with jurisdiction. I have nothing against that, but that changes nothing in Syria. Because the role of criminal investigation when you are dealing with organized crimes or mass crimes is to disrupt the organization committing the crime. That’s why, for me, we should focus on those most responsible. If you indict Assad, that’s different than if you indict a former member of Assad’s intelligence who is living in Germany. It’s fine, but it’s no change for the real situation. And that’s typical of lawyers. We care about the number of criminal cases. No: a criminal case is an instrument to prevent crimes. We should not believe it’s enough. I have nothing against it, but that’s my main answer.   In addition, national judges are not equipped to investigate crimes outside [their jurisdiction], and it’s complicated for them to do it. And it could carry political bias because, for example, France could indict a member of the Rwandan government as a retaliation for some tension France has with Rwanda today, so it could be another political tool. I think it’s important to remain impartial. So I believe Universal Jurisdiction is okay, but could not replace a real justice system focusing on the leaders, because basically these crimes are committed by organizations following their leader’s instructions. So if you’d like to stop the crime, you should really focus on the leaders.   CJLPA : Related to this topic, the ICC has issued an arrest warrant for Vladimir Putin relating to the invasion of Ukraine. There are conversations about creating a special tribunal to try Russia on the charge of aggression. What are your feelings on this?   LMO : The aggression in Ukraine is affecting two dimensions. One, it’s affecting Ukraine’s territorial integrity, but it’s also affecting how the global order works. On territorial integrity, it’s clear it should be rejected and Ukraine’s territory should be respected. The second topic is very important. Will law and order be based on power or based on law? The Ukraine intervention exposes that the ICC’s jurisdiction on aggression was flawed. The states impose an extra prerequisite. Normally the jurisdiction of the court requires that a crime was committed in the territory of a state party, or that the state party is actually a victim. In the crime of aggression, they added five words, saying that in addition, the aggressor must be a state party. That is establishing impunity by design. Because of course, the biggest countries—US, Russia, China—will never be party to the ICC and therefore they can invade any country in the world and nothing will happen to them. And that should be fixed. The Ukrainian conflict is an opportunity to fix that.   The easy fix is to delete the five words. However, that the US is pushing and the European Union voted for the idea that we have to create a special tribunal against Russia, not against the US, not against the UK, is consecrating impunity. That, for me, is going back in time. Because the biggest debate at the Rome Conference in 1998 was, will justice be independent for everyone, or will justice be in the hands of the Security Council members. And this proposal of the UN Special Tribunal is going back to selective justice in the hands of the Security Council. If the Ukrainian conflict consecrates this idea, it will be a drastic step back.   In the meantime, what is fascinating for me, is that the ICC issued a warrant already underway on war crimes in Ukraine. It’s not about crimes of aggression, but it’s a war crime. And it’s a very beautiful case because it’s small, clear, Putin was involved personally, and you have footage to show the crime. So I think the prosecutor is almost ready to go to court. Beautiful. And that’s enough, because it’s an indictment. You know who Al Capone was. He was involved in the Chicago Massacre, people killed. The prosecutor never found evidence to prosecute Al Capone for that, but he got prosecuted for tax evasion and went to jail. So, it’s lovely having a case exposing all the criminality, but when you’re a prosecutor, you’re limited. You have the evidence and the jurisdiction, and that’s it. For me, this indictment shows something that Robert Jackson, the chief US prosecutor at the Nuremberg trials said, that between frustration and war the only option is individual responsibility.   CJLPA : Given what you’ve just mentioned, why do you think there is such an international focus on the crime of aggression when, as you’ve said, there is an existing indictment for war crimes?   LMO : For American lawyers, the ICC will never be part of the US agenda, so the only pragmatic solution is to go to a special tribunal. And I’m sorry, but European leaders are soft and not taking their own position. Basically, this is consecrating selective justice. At Nuremberg, we had no option, we had to engage in victor justice. And now we cannot adopt a normal system of selective justice, where we say ‘if Putin invades a country, we have a special tribunal for Putin, but if we invade Kosovo, or Iraq, or whatever, that’s fine’. No: we need similar rules. The US needs clear rules as well. I don’t know why, but all my American friends are going for this special tribunal and say, ‘it’s the only thing we can do’. They believe they’re being pragmatic, but no, they are giving up. It’s a classic diversion, because in fact, there would be no political support to adopt this tribunal. And it would cost hundreds of millions and take years to implement. That’s the problem: the legal community is debating issues disconnected from what the people need.   CJLPA : Thank you so much. We really appreciate your time and perspective. 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. [1] In the case of the 2005 Security Council Referral which opened proceedings in the situation in Darfur, Sudan.

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.

If you tolerate this, your children will be next! Manic Street Preachers, 1998   Introduction   The issue of immigration and human rights law, or more precisely, the human rights of people on the move, has become one of the most urgent challenges for many Western societies. Syrian refugees walking across Europe in 2015 almost faded away in the collective memory. They were replaced by the images of people clinging on the planes leaving Kabul, a mass exodus from Ukraine, people desperately trying to escape Sudan, and now the catastrophe in Gaza. In 2023, the UN Refugee Agency ( UNHCR) estimated 110 million forcibly displaced people worldwide. Many of them, like 750,000 Rohingyas[1] or 120,000 ethnic Armenians expelled from Nagorno-Karabakh in October 2023,[2] have not been properly registered on the Western news cycle.   Wherever, however, and whenever they arrive, people seeking protection or migrating are often perceived as a threat despite being vulnerable, insignificant in numbers, or needed for the local economy (only 3.6% of the world’s people lived outside their country of birth in 2020).[3]   The UNHCR has warned that the UK immigration legislation passed in 2023 is ‘inconsistent with the country’s obligation under the international human rights and refugee law’.[4]   This is, albeit limited, an attempt to chart some of the trajectories and connections of how hostile environment immigration policy, enforcement, and populist approach to immigration, undermine fundamental human rights and bring into question UK compliance with and membership of international human rights treaties and bodies and the rule of law.   It is also a reflection on the impact on people’s lives from the perspective of a frontline campaigner for migrant and refugee rights and a survivor of the siege of Sarajevo and the UK asylum system.[5]   Despite the alarming state of affairs and the horrifying extent to which governments are willing to sink in their implementation of the hostile environment immigration policy, this is a story of hope—how people build resilience, resist hostility and human rights violations, imagine better future, organise in solidarity, and speak out for dignity and justice for all.   Context   There is widespread populist belief, deeply rooted in the right-wing, nationalistic, and scarcity narrative, that rights cannot be shared or afforded to everyone. To take this logic further, as inalienable as human rights might be, there aren’t enough rights for everyone. Therefore, to paraphrase Hannah Arendt, ‘the right to have rights’ is reserved only for citizens.[6] The not-so-subtle proposition that non-citizens, immigrants, refugees, or foreigners—currently the chief category of the ‘other’, are not to be afforded the same human rights as citizens is nothing new or surprising. At the risk of sounding cynical, it is all too often that we see citizens’ human rights violated, especially if rights are in the way of power interests, political or commercial or both.   And yet, at a snail's pace, some progress is being made.   Our contemporary legal framework defining and safeguarding human rights is historically inextricably linked to the failure to provide protection in the run-up and during WW2. Indeed, the refugee protection defined by the 1951 Refugee Convention was adopted to ensure that human rights and life are protected beyond the borders of the nation-state. The language of the definition of the refugee reflected the time in which the world was coming to terms with the Holocaust.   It was deemed at the time, in the early 50s, that people should have a right to seek protection and that it should be enough for those fleeing to have a ‘well-founded fear of persecution’ instead of waiting to experience it. It was recognised that people fleeing persecution may not be able to obtain travel documents or visas and should not be penalised for the mode of their entry and that no one should be returned to a place where they may not be safe and could face torture.   The nation-states did not take long to find excuses to restrict and limit access to protection and find reasons to exclude and refuse protection. The freedom of movement was introduced as a ‘right’ and a ‘privilege’ for those who belong to the ‘club’ of nations.   I remember a woman facing deportation to a country that just a few days later became a member of the European Union. After a lengthy legal struggle and detention, she was forced on the aeroplane while experiencing physical and emotional distress, screaming, and taking her clothes off. The enforcement staff, the cabin crew, and all the passengers who watched it knew that three days later, she would be allowed to fly back to live and work in the UK without any restrictions. So, what was the point of this deportation? As it often happens, there is no point other than scoring some imaginary political point of being tough on immigration. Once the hostile systems are in motion, there is no turning back.   Immigration is often talked about in numbers and not people. The number of people arriving is the most frequently invoked argument for states to justify their failure or refusal to offer protection. However, the number of people that would be acceptable for states to protect has never been established. Like everything to do with power and politics, some refugees are more acceptable than others. The disparity in numbers and treatment of different groups of refugees and unapologetically racist policy at work is only shocking if you have not paid any attention to what has been happening in the past 400 years.[7]   I. A Hostile and Racist System by Design   Since the inception of human rights jurisprudence in the 20th century, there have always been forces at play in Western societies that pushed for the restrictions and exclusion of the ‘other’. In such ideological framing, fundamental human rights—which should form the core principles of democratic societies—have been commodified and used to feed dangerous, racist, and divisive rhetoric, behaviour, policies, systems, and structures.   In the UK, immigration—or the rights of immigrants, including subjects of the realm—has only ever been framed through structurally and systemically racist narratives and policies. Since the ‘rivers of blood’ Enoch Powell days and the Primary Purpose Rule,[8] the Windrush Scandal, and the Rwanda Plan, successive governments’ zeal to scapegoat immigrants and use the issue to obscure many other political failures has taken the 2023 administration into the breach of the European Convention on Human Rights, with serious implications for everyone living in the UK and all other signatories.[9]   Even before 2012, the British government limited immigrants’ rights and access to essential services. But in 2012, the ‘hostile environment policy’ became an official mainstream political project. The name came from Theresa May, the then Home Secretary, stating that her aim ‘was to create here in Britain a really hostile environment for illegal migration’.[10]   Six Home Secretaries later, the mother of all parliaments, without much fuss or questioning, agreed to debate and vote for the so-called Illegal Immigration Act, which, by the admission of the then Home Secretary, Suella Braverman, barrister and a former Attorney General no less, may not comply with the European Convention on Human Rights.[11]   Such was the zeal to win the votes in the next general election (due in 2024) that nothing was significant enough to stand in the way of it. Not the rights of immigrants and other vulnerable groups. Not the UK’s reputation in the world. Not the relationships with other countries in the region. Not the facts or reality. The dehumanisation of people in need of protection was completed; they became boats that needed to be stopped, detained on barges, and rendered to Rwanda. And, of course, there is a ‘magic money tree’ to spend billions on for-profit enforcement companies that mistreat and exploit the people in their care to extract profit.[12]   The speed, intensity, implications, and impact of policy on immigration and asylum in the past few years is unprecedented, making it hard to keep up.[13] In just six months of the second half of 2023, the Illegal Migration Bill became an Act, the Government lost the Rwanda case in the Supreme Court, and Suella Braverman lost her job as the Home Secretary. Prime Minister Rishi Sunak, just hours after losing the Rwanda case in the Supreme Court, floated the idea of ‘disapplying’ the Human Rights Act and sent his new Home Secretary, James Cleverly, to Rwanda to come back with a treaty (as opposed to the memorandum of understanding).[14] In the meantime, the government announced that it would legislate reality and bring in the law that Rwanda is a safe country, regardless of the facts or reality. Another government minister resigned, adding to the political power-struggle drama driving this policy freefall.[15]   This article will not age well, as by the time of publication, there may be another piece of legislation on immigration to demolish further any rights left for people in need.   The Rwanda deal and immigration enforcement are taking place at the same time as the catastrophe in Gaza is unfolding daily;[16] food poverty is at an all-time high in the UK,[17] and raw sewage is dumped into 90% of freshwater habitats, and most people worry about paying their bills and mortgages.[18] Many of the deeply disturbing totalitarian policies have already been passed and enacted, such as one about the deprivation of citizenship without notice or appeal rights, even when a person becomes stateless as a result.[19]    The extent to which the current UK administration is willing to derogate and completely breach its existing obligations under the European Convention on Human Rights and the 1951 Geneva Convention sets a dangerous precedent. In her statement in the House of Commons on 7 March 2023, the then Home Secretary, Suella Braverman, said: But I must say this, the Rule 39 process that enabled the Strasbourg court to block at the last minute, flights to Rwanda, after our courts had refused injunctions, was deeply flawed. Our ability to control our borders cannot be held back by an opaque process, conducted late at night, with no chance to make our case or even appeal decisions. That’s why we’ve initiated discussions in Strasbourg, to ensure their blocking orders meet a basic natural justice standard—one that prevents abuse of Rule 39s to thwart removal. And it’s why the bill will set out the conditions for the UK’s future compliance for such orders. Other countries share our dilemma and will understand the justice of our position. Our approach is robust and novel, which is why we can’t make a definitive statement of compatibility under section 19(1)(a) of the Human Rights Act. Of course the UK will always seek to uphold international law and I am confident that this bill is compatible with international law.[20] The speed of the process has obstructed meaningful scrutiny of the Bill by the Parliament. As a report on the bill’s constitutional implications noted:   The Government expedited second reading in the House of Commons, chose to hold committee stage on the floor of the House, and at late notice published more than one hundred amendments at Report Stage.[21]   The Home Secretary has made statements that the Lords must not frustrate ‘the will of the British people’ and referred to the Bill as a ‘manifesto commitment in 2019’, implicitly invoking the Salisbury Convention. However, the 2019 Conservative manifesto commitment was only to ‘continue to grant asylum and support to refugees fleeing persecution, with the ultimate aim of helping them to return home if it is safe to do so’ thus making this appeal to Lords by the then Home Secretary misleading.[22]   This was a significant shift in rhetoric and signalled open disregard for domestic and international human rights laws and conventions. Up until this moment, the official narrative, including that of the hostile environment immigration policy, was always about respect and compliance with international human rights law, even when discourse and practice were violating fundamental human rights of people excluded from healthcare or subjected to arbitrary, indefinite detention based on their immigration status. Indeed, as Home Secretary, Sajid Javid tried to rebrand ‘hostile’ into ‘compliant’ environment policy.   It did not work because appearing ‘hostile’ on immigration is seen as one of the key electoral issues. But what are the legal, moral, and humane limits of this ‘control’ and its impact on very vulnerable people and society?   One of the most significant challenges in discussing the ‘hostile environment’ immigration policy with people who are not deeply immersed in it is complete disbelief on the part of the audience. The catalogue of violations of fundamental human rights and dignity is so long and egregious that it becomes unbearable and paralysing for many people when they first hear about it.   I frequently hear a very confused—'why?’ Why would the government do that? Why would victims of domestic violence be reported to immigration enforcement when running away from their abusive partners? Why would children like baby Omisha be charged £76,000 for cancer treatment by the NHS?[23] Why would Windrush generation citizens be denied NHS treatment and told to self-deport, having arrived in the country decades ago with their parents, then British subjects? Why would 200 vulnerable people be forced into one bedroom, with one bathroom, in military barracks at the height of the COVID-19 pandemic?[24] Why would people be dispersed into destitution around the country and handed over to for-profit companies, which extracted more than £113 million in profit while mistreating people in their care?[25] Why are migrant domestic workers’ visas tied to their abusive employers while everyone is talking about modern slavery?[26] Why are citizenship fees so extortionate that families cannot afford them? Why is the Home Secretary allowed to strip any potential dual citizen of their British citizenship with no notice, explanation, or right of appeal? Why do British citizens need to earn far above the living wage to be able to marry their partners from somewhere else?[27] Why are people who have no other way of seeking protection but to cross over on the boat detained and threatened with removal to Rwanda?   These are just some examples of the hostile environment immigration policy in practice. There is also arbitrary detention,[28] which means the majority of people seeking protection are effectively on bail, have to report regularly, may be forced to wear a GPS tag, and can be detained at any time with no notice or explanation.[29]  Many people, banned from working and studying or accessing welfare support, are stuck in this limbo for years if not decades.[30] With almost no access to legal advice and representation, no voice or platform to affect the change.   How did we get here? And what does it mean for human rights, liberty, and democracy for all of us?   II. Go Home or Face Arrest—The Hostile Environment Immigration Policy   Within just a decade, the hostile environment policy penetrated all institutions and dismantled the decades of slow and limited progress in equality and human rights. Theresa May’s policies in 2012 built on the decades of rhetoric of ‘illegal’ immigrants, connecting migrants with the perception of criminality in public imagination. Using the tested myths of foreign invaders who take advantage of the precious welfare state without making a contribution, she cleared the path for the hostilities to come, creeping up on centrists one illiberal move at the time.   Theresa May’s first move as a Home Secretary was to send to north London a so-called ‘Go Home Van’, a truck with a massive advert telling people to go back home if in the UK ‘illegally’ or face arrest. Even though ‘go home’ is a recognised form of hate speech against immigrants and people of colour, there was very little that could be done to hold anyone accountable. Campaigners and migrant rights groups’ only option was to go to the Advertising Standards Agency (ASA) as the only avenue to challenge the offensive campaign. Ironically, the ASA ruling declared the Go Home campaign misleading on a technicality of a number of arrests advertised on the van and did not find the language to be offensive.[31] Just a year earlier, in 2012, with hardly any publicity, Operation Nexus had been launched in London—a joint operation between London’s Metropolitan Police Service and the UK Borders Agency.[32] The aim was to identify and remove the so-called ‘high-harm’ foreign national offenders. It involved the systematic checking of foreign nationals’ immigration status and police questioning without any of the usual procedures the police are required to follow. Nearly 3,000 people were removed between 2012 and 2015 through this extension of police powers. It has increased racial profiling in policing, targeting those who appear ‘foreign’ and increasing already highly controversial ‘stop and search’ policing powers.[33] Operation Nexus embedded immigration officers in the police stations, and questions about immigration status became part of the process of arrest or questioning. Ten years on, this practice still goes on, and does the resistance to it. In December 2023, The Advice on Individual Rights in Europe Centre (The AIRE Centre) was granted permission to appeal against the High Court decision that Operation Nexus is lawful with regard to EU citizens.[34] Once immigration controls became part of policing, and police and immigration enforcement officers sat in the same office, it did not take long to start checking the immigration status of victims of crime. In 2018,  in the wake of the Windrush Scandal following a super-complaint by Liberty and Southall Black Sisters, the new policy, entitled ‘information exchange regarding victims of crime with no leave to remain’,  was announced by the police to end the practice of reporting victims of crime to immigration enforcement. [35] Devon and Cornwall’s chief constable, Shaun Sawyer, the National Police Chiefs Council on modern slavery and organised immigration crime lead in 2018, said in the Guardian : There were some who perceived we were becoming part of that hostile environment. It was imperative that we were clear with our staff that the role of the police and immigration enforcement are different. We had an inappropriate relationship with immigration enforcement whereby, by proxy, we were helping to kick people out of the country. There were a handful of cases that showed the relationship was too close and could not be tolerated. We are not a branch of immigration enforcement; we deal with crime and vulnerability.[36] The findings of the super-complaint published in 2020 showed the failure of these police protocols, and unsurprisingly, significant harm was experienced by the victims of crime and the public as crimes are not reported.[37]  Step Up Migrant Women (SUMW) campaign by a coalition of 50 migrant and women’s rights organisations conducted research showing that the fear of immigration enforcement prevents migrant women with insecure status from reporting crimes, including domestic abuse and modern slavery. In many cases, the perpetrators use the threat of immigration enforcement to continue abuse and domestic violence. Despite the commitments and policies, the new Freedom of Information (FOI) request by the Joint Council for Welfare of Immigrants in 2022 showed that in two years of the pandemic and lockdown, between 2020 and 2022, 2,656 victims of crime who found the courage to seek help from the police were in turn reported by the police to the Home Office as immigration offenders.[38] They include 419 domestic abuse survivors and 68 victims of child sexual abuse. This hostile environment co-working practice soon found its way into the NHS and social care. Hospitals now have rather opaque ‘compliance’ departments checking patients’ immigration status, and numerous local authorities spend money on immigration officers ‘embedded’ in their social care and children’s services to ensure that destitute people with children do not get help if their immigration status is precarious.[39] And yes, racial profiling is at play here, too. Local authorities have a duty to protect children in need, including children of people who are unable to work or access mainstream benefits because of the hostile environment immigration policy. These families are labelled as having No Recourse to Public Funds (NRPF). The embedded immigration officers in local authorities, like those in police stations targeting victims and witnesses of crime, are looking at the applications for this last-resort support by people trying to feed their children to detain and deport them instead. In the NHS, this practice was introduced on the back of the so-called ‘health tourism’—an imaginary problem, the solution to which is to turn the NHS into a border enforcement agency that possibly costs more to administer—but still, it resonates well with right-wing press. In 2018, Albert Thompson, a pseudonym used by Sylvester Marshall,  who had lived and worked in the UK for 44 years, was told he must pay £54,000 for cancer treatment because he could not prove his immigration status.[40] At the time, Sylvester was also homeless, having been evicted from his council flat for the same reason. Albert’s story was one of many told by the Guardian ’s Amelia Gentleman,[41] exposing the most egregious violations of human rights in what is now known as The Windrush Scandal.[42] As a part of the hostile environment policy, the UK government passed the Immigration Acts in 2014 and 2016, requiring local authorities, landlords, employers, banks, and the NHS to carry out ID checks and to refuse services to those unable to prove legal residence in the UK. As the UK does not have an ID card system, the only way to prove one is a citizen is to have a passport. Many people who arrived in the UK from the Caribbean, while it was still part of the British Empire, did not have adequate paperwork to show that they were citizens and were treated as ‘illegal’ immigrants—stripped of their jobs, homes, and access to healthcare and deported. The Windrush was the name of one of the first ships that brought people from the Caribbean to the UK after WW2 to rebuild the country and the whole generation became known as the Windrush Generation. The Windrush Scandal is still not over.[43] Despite the media coverage, official apologies, and many reports, many victims are still waiting for proper compensation, exposing the structural hostility of the Home Office, condemned even by the defanged Equality and Human Rights Commission.[44] In May 2022, the Home Office commissioned a report, ‘The Historical Roots of the Windrush Scandal’, which was leaked to the Guardian .[45] The unknown historian wrote a 52-page report which concluded that the ‘ origins of the “deep-rooted racism of the Windrush scandal” lie in the fact that “during the period 1950-1981, every single piece of immigration or citizenship legislation was designed at least in part to reduce the number of people with black or brown skin who were permitted to live and work in the UK”’.[46] ‘As a result, the experiences of Britain’s black communities of the Home Office, of the law, and of life in the UK have been fundamentally different from those of white communities’, the report states. ‘Major immigration legislation in 1962, 1968 and 1971 was designed to reduce the proportion of people living in the United Kingdom who did not have white skin’.[47] The report was never published, and the Freedom of Information Requests were refused on the grounds that the Home Office’s response to the Windrush scandal included ‘sensitive issues involving the development of policies’. Publication of the document could supposedly ‘inhibit discussions and the ability of ministers to take free and frank advice’.[48] Another important footnote in the Windrush Scandal, and the hostile environment policy in general, is the introduction of the ID requirement for some people, namely immigrants, to ‘prove’ their legitimacy. The debate about IDs in the UK comes and goes, and demands for IDs are usually not taken very seriously. However, as with the completely non-existent ‘problem’ of ‘health tourism’ in the NHS, the ID system was introduced recently in the form of a Voter ID requirement for the non-existent problem of electoral voting fraud. Interestingly, an old-age bus pass is considered to be a valid Voter ID, while a student ID card is not. The list of suppressions, discrimination, and outright denials of fundamental human rights for migrants and refugees goes on. The examples above illustrate the insidious, historical, and structurally racist systems interacting over a long period of time. Nothing is too insignificant for the hostile system. These examples also illustrate the failure of democratic oversight and accountability. All systems of checks and balances that should have been there, including the Human Rights Act, have failed the most vulnerable and marginalised people in society. One last resort, when everything else has been exhausted and failed, used to be to seek representation and support, from the local Member of Parliament. Their duty and the promise of democracy, rights, and freedoms they are claiming to uphold is to represent all their constituents and to help them get some resolution or at least a response from institutions that they are struggling with. Many MPs deal with large volumes of immigration casework, as this is one of the most dysfunctional, ‘not fit for purpose’ government departments,[49] keeping hundreds of thousands of lives in limbo with their ‘culture of disbelief’ as Lord Ramsbotham, the late Chief Inspector of Prisons, called it in 2009.[50] In 2017, a Freedom of Information (FOI) request submitted by Politics.co.uk revealed that Members of Parliament frequently reported their own constituents who had come to them for help to the immigration enforcement line.[51] The FOI showed that between 2014 and 2016, 482 tip-offs were made by MPs. In 2018, the MPs Not Border Guards campaign by Migrants Organise[52] and Global Justice Now[53] revealed that only 103 MPs agreed to sign a public pledge not to report their constituents to the immigration enforcement hotline. By 2019, an increase of 91% in MPs’ immigration enforcement tip-offs was recorded.[54] In an Orwellian Stasi-like scenario, everyone has become an immigration police.[55]  When I inquired why they would not sign the pledge, one of the progressive MPs told me how they had safeguarding concerns. I probed deeper as I did not understand why that would be a reason to report someone to the border enforcement. The MP explained how they discussed with their constituency casework team a possible scenario of a person coming for advice and representation who turns out to be a perpetrator of domestic violence or child abuse. They thought that based on their judgement, acting as judge and jury, they could report this person to immigration enforcement if they had immigration issues so that they might be removed. How the MP’s staff are qualified to make this judgement is unclear. So, I asked, what would you do if you suspected someone who was not an immigrant of being a safeguarding risk in this way? They said, with a completely straight face and unphased by it all, that they would call the police. These are just some examples of the slippery slope of diminishing the protection of basic legal and human rights for some humans, especially those declared ‘illegal’ by the state. After a decade of racist and hostile measures which undermined the rule of law in the UK, there was nowhere else to go but to Rwanda and the ECHR exit.[56]  III. Dignity, Justice, Freedom: ‘It Always Seems Impossible Until it is Done’ (Mandela).   In the UK, the implementation of Brexit and the rise of right-wing populism have normalised the hostility towards immigrants. The situation is so unhinged that our government, after losing the legal case in the UK Supreme Court, is now trying to pass a law according to which Rwanda is safe, so we can give them hundreds of millions to take 200 people who came to claim asylum in the way that is lawful internationally. We will, it seems, abandon those laws too, just because there are some right-wing votes needed for the upcoming election.   The state of the debate on immigration is so partisan, manipulative, and fragmented that it obscures deep structural analysis of the root cause of the issue. Most of us working in the field of human rights and justice are firefighting here and now and no longer have the capacity to tell our stories, understand, or even remember how we ended up here.   Without our stories—present and past—we lack the generative power to imagine and design meaningful policies and solutions away from hostility. Instead, we are reduced to responding to a manipulative algorithm of gaslighting and power struggle in the Westminster bubble. But remembering, memorialising, and comparing is tricky, as Gary Lineker discovered after that  tweet.   In the speech that Masha Gessen gave in December 2023, at the ceremony accepting the Hannah Arendt Prize, she said:   The Western world and Germany in particular have invested a lot of time, effort, money, creative and political energy in imagining the Holocaust. We have language, images, statistics that are readily available for imagining the Holocaust. We have made it easy for one another to conjure up common images and even memories of the Holocaust. And yet there is a rule - and it is certainly not unique to Germany—that you don’t compare things to the Holocaust. There is a paradox: we imagine the Holocaust in great detail, but we conceive of it as fundamentally unimaginable. It is the kind of evil that we cannot comprehend. But anything that happens in the present is, by definition, imaginable. We can see it. Even small children separated from their parents at the US border and placed in detention are imaginable once we see pictures of them on our screens and hear their voices in audio recordings. So, when Representative Alexandria Ocasio Cortez in 2019 used the words ‘concentration camps’ to describe migrant detention facilities, this comparison drew fire, among other reasons, because it placed the imaginable—a regular practice of the US government—next to the unimaginable. Anything that is imaginable by the very fact of being seen, heard, witnessed, strikes us as being incomparable to the Holocaust.[57]   The ‘never again’ was a promise at the heart of the post-WW2 reckoning with the Holocaust. It was a promise born out of desperation of having to face the ‘unimaginable’. It was a way of saying sorry, and we should have known better, and we will do better.   There are many ‘never again’ failures, but as Masha Gessen continues in her speech, there is something positive.   One of the structures that we have invented, acting politically, to prevent a repetition of the Holocaust is international humanitarian law, particularly the laws for the protection of civilians. It is also the framework of international jurisprudence, such as the International Criminal Court, war-crimes tribunals, and universal-jurisdiction trials.[58]   International humanitarian jurisprudence saved my life as I sought protection from the war, and the International War Crimes Tribunal for the Former Yugoslavia provided some justice; 92 war criminals were convicted and sentenced to prison. Establishing facts and providing spaces for victims to become witnesses is an important step for many survivors to face the future.   As a promise, ‘never again’ was doomed to fail, and history is full of such examples of ‘never again’ failing—again and again. My ‘never again’ moment of failure was in 1992 when, as a granddaughter of the survivor of the Nazi concentration camp, I ended up living through and surviving the brutal war in Bosnia and Herzegovina.   The genocide and war, although part of my family’s history, were unimaginable until they happened to me. It would not be difficult for me to be cynical about the world; indeed, I often am. That is why I make a conscious effort to have hope. Not hope like some positive feeling of the happiness cult variety, but hope as a practice of resistance, something we do as a community to resist hate, hostility, injustice, and racism in solidarity with each other.   Resistance to the egregious hostile environment immigration policy in the UK is growing, and it is becoming better organised. The organised action of activists, lawyers, and grassroots community organisations stopped the first flight to Rwanda in June 2022.[59] Advocacy groups doggedly pursue accountability through strategic litigation, inquiries, commissions, and reports. Many investigative journalists will still ask the right questions and tell the hidden stories.[60] In my own work at Migrants Organise over the last two decades, I have witnessed the gradual shift away from the top-down charity model of dealing with the symptoms of injustice towards self-organising and demands for justice rooted in the history of our communities.[61]   What gives me hope are these self-organised communities of resilience that emerged in solidarity and resistance to hostility. Solidarity Knows No Borders is a movement still in the making, and it is not just about the protection of the rights and dignity of migrants and refugees; it is about the protection of all our freedoms and fundamental rights. There are no small victories in this struggle. The attempt to chart the issue we are grappling with may seem overwhelming, but the resistance to it is inspiring. I urge you to read the stories of people like Simba Mujakachi, who woke up from the coma, having suffered a stroke at the age of 30, and was asked to pay £93,000 because he was a refused asylum seeker. Simba and his supporters organised the Justice4Simba Campaign, and won.[62] Simba got legal advice, won his status, and his debt was dropped. He can now focus on his recovery and is still inspiring new Patients Not Passports campaigns emerging around the country to support the right to healthcare for all refugees and migrants.   I also urge you to learn more about a group of residents who are organising Haringey Welcome after they learned that their local council was paying for immigration enforcement in their services for destitute residents. Their Welcome Pledge, now adopted by the Haringey Council, direct support for people in need, and persistent demands for accountability are the most inspiring examples of local organising that is safeguarding all our rights.[63]   The struggle for universal human rights may appear to be too legalistic and distant, but it is happening all around us all the time. The Hastings Refugee Buddy Project, Migrants In Culture, Polish Migrants Organise for Change, Coventry Asylum and Refugee Action Group, and Women Asylum Seekers Together are just a few grassroots organisations that you should know about, be inspired by, and organise in solidarity with.[64] They are the people who make the environment really, really welcoming, and more importantly, they are safeguarding the human rights of all of us.   If you have come here to help me, you are wasting your time, but if you have come because your liberation is bound up with mine, then let us work together’ Lilla Watson Zrinka Bralo Zrinka Bralo is CEO of Migrants Organise, an advice and campaigning organising platform for migrant justice. She is originally from Sarajevo, where she was a journalist and worked with international war correspondents during the 90s siege. She came to the UK in 1993 and, as a refugee, has been organising for migrants and refugee justice ever since. [1] Al Jazeera, ‘“Many more could die”: Urgent plea for Rohingya refugees trapped at sea’ ( Al Jazeera , 24 December 2023) < https://www.aljazeera.com/news/2023/12/24/many-more-could-die-urgent-plea-for-rohingya-refugees-trapped-at-sea > accessed 4 January 2024. [2] Ruslan Javadov, ‘As an Azerbaijani, I have to speak out about my country’s ethnic cleansing of Armenians’ Guardian (London, 9 October 2023) < https://www.theguardian.com/commentisfree/2023/oct/09/azerbaijani-ethnic-cleansing-armenians-nagorno-karabakh-children > accessed 4 January 2024. [3] Anusha Natarajan, Mohamad Moslimani, and Mark Hugo Lopez, ‘Key facts about recent trends in global migration’ ( Pew Research Center,  16 December 2022) < https://www.pewresearch.org/short-reads/2022/12/16/key-facts-about-recent-trends-in-global-migration/ > accessed 5 January 2024. [4] United Nations, UK Bill ‘significantly erodes’ human rights and refugee protections, UN agencies warn ( UN News , 18 July 2024) < https://news.un.org/en/story/2023/07/1138812#:~:text=The%20United%20Kingdom%20parliament%20has,refugee%20agency%20UNHCR%20on%20Tuesday > accessed 4 January 2024. [5] Migrants Organise, ‘Zrinka Bralo, Migrants Organise CEO Receives Honorary Doctorate From University Of Exeter’ ( Migrants Organise , 1 July 2022) < https://www.migrantsorganise.org/zrinka-bralo-migrants-organise-ceo/ > accessed 2 January 2024; Zrinka Bralo, ‘The case has closed on Ratko Mladić. Now we must honour those who survived him’ Guardian (London, 9 June 2021) < https://www.theguardian.com/commentisfree/2021/jun/09/case-close-ratko-mladi-war-criminal-genocide-prijedor > accessed 2 January 2024. [6] Hannah Arendt,  The Origins of Totalitarianism  (World Publishing Company 1962). [7] Georgina Sturge, ‘Asylum statistics’ ( House of Commons Library , 12 September 2023) < https://researchbriefings.files.parliament.uk/documents/SN01403/SN01403.pdf > accessed 4 January 2023. [8] See report by Young Justice, ‘The primary purpose rule: a rule with no purpose’ ( JUSTICE , 1993) < https://files.justice.org.uk/wp-content/uploads/2015/01/06171917/PrimaryPurposeRuleRuleWithNoPurpose.pdf > accessed 4 January 2024. [9] Alan Travis, ‘Virginity tests for immigrants “reflected dark age prejudices” of 1970s Britain’ Guardian ( London , 8 May 2011) < https://www.theguardian.com/uk/2011/may/08/virginity-tests-immigrants-prejudices-britain > accessed 4 January 2024. [10] Maymuna Osman,   ‘A Decade Of The Hostile Environment: Watch Kamila Shamsie’s Powerful Lecture’ ( Migrants Organise , 22 June 2022) < https://www.migrantsorganise.org/from-go-home-vans-to-rwanda-asylum-deal-a-decade-of-the-hostile-environment-a-lecture-by-author-kamila-shamsie/ > accessed 5 February 2024. [11] British Red Cross, ’How the Illegal Migration Act affects vulnerable communities’, ( British Red Cross , 11 August 2023) < https://www.redcross.org.uk/stories/migration-and-displacement/refugees-and-asylum-seekers/what-is-the-illegal-migration-bill > accessed 5 January 2023. [12] Corporate Watch, ‘The Cost Of Misery: Rising Millions In The Bibby Stockholm Fiasco’ ( Corporate Watch , 11 October 2023) < https://corporatewatch.org/the-cost-of-misery-rising-millions-in-the-bibby-stockholm-fiasco/ > accessed 4 January 2023. [13] Martin Kettle, ‘Yes, the Tories’ migration bill is bad – but the lack of Commons scrutiny is more disturbing still’ Guardian  (London, 13 July 2023) < https://www.theguardian.com/commentisfree/2023/jul/13/tories-migration-bill-parliament-rebel-mps-debate > accessed 5 January 2024. [14]  Rajeev Syal, ‘Sunak could block Human Rights Act to force through Rwanda asylum plan’ Guardian (London, 19 November 2023) < https://www.theguardian.com/uk-news/2023/nov/19/rishi-sunak-could-block-key-human-rights-law-force-through-rwanda-asylum-plan > accessed 5 January 2024. [15] Pippa Crerar, Ben Quinn, and Peter Walker, ‘Relief for Rishi Sunak as Rwanda bill passes first vote in Commons’ Guardian  (London, 12 December 2023) < https://www.theguardian.com/uk-news/2023/dec/12/rishi-sunak-survives-rwanda-bill-commons-vote > accessed 5 January 2023. [16] Al Jazeera, ‘UN: Gaza ‘catastrophe’ threatens to raise record global displacement’ ( Al Jazeera , 13 December 2023) < https://www.aljazeera.com/news/2023/12/13/un-refugee-chief-says-gaza-war-leading-to-catastrophic-displacement > accessed 5 January 2023. [17] Brigid Francis-Devine, Shadi Danechi, Xameerah Malik ‘Food poverty: Households, food banks and free school meals’ ( UK Parliament , 24 August 2023) < https://commonslibrary.parliament.uk/research-briefings/cbp-9209/#:~:text=In%202021%2F22%2C%202.1%20million,three%2Dday%20emergency%20food%20parcels . > accessed 4 January 2023. [18] Jon Ungoed-Thomas and Maximilian Jenz, ’An utter disgrace’: 90% of England’s most precious river habitats blighted by raw sewage and farming pollution’ G uardian  (London, 12 August, 2023) < https://www.theguardian.com/environment/2023/aug/12/an-utter-disgrace-90-of-englands-most-precious-river-habitats-blighted-by-raw-sewage-and-farming-pollution > accessed 4 January 2024. [19] Diane Taylor, ‘Hundreds stripped of British citizenship in last 15 years, study finds’ Guardian (London, 21 January 2022) < https://www.theguardian.com/uk-news/2022/jan/21/hundreds-stripped-british-citizenship-last-15-years-study-finds > accessed 4 January 2023. [20] See Home Secretary statement on the Illegal Immigration Bill delivered on 7 March 2023 < https://www.gov.uk/government/speeches/home-secretary-statement-on-the-illegal-immigration-bill > accessed 5 January 2024. [21] Public Law Project, Bonavero Institute of Human Rights, Amnesty International, Liberty, Immigration Law Practitioners’ Association (ILPA), ‘The Illegal Migration Bill: Constitutional Implications’ (22 May 2023) < https://www.libertyhumanrights.org.uk/wp-content/uploads/2023/03/The-Illegal-Migration-Bill-Constitutional-Implications.pdf > accessed 4 January 2024. [22] ibid. [23] Aliya Yule, ‘The Justice For Omisha Campaign–Get Involved!’ ( Migrants Organise , 25 October 2023) < https://www.migrantsorganise.org/the-justice-for-omisha-campaign-get-involved/ > accessed 4 January 2024. [24] Rob Davies, Jamie Grierson, Ben Stockton, Chantal Da Silva, ‘Home Office housed asylum seekers in barracks “despite knowing Covid risk”’ Guardian  (London, 4 March 2021) < https://www.theguardian.com/politics/2021/mar/04/home-office-housed-asylum-seekers-in-barracks-despite-knowing-covid-risk > accessed 5 January 2024. [25] Diane Taylor, ‘Companies providing housing for UK asylum seekers make £113m profit’ Guardian (London, 24 October 2023) < https://www.theguardian.com/uk-news/2023/oct/24/housing-uk-asylum-seekers-companies-profit > accessed 5 January 2024. [26] Simon Israel, ‘The domestic slaves rescued from London’s richest streets’ ( Channel 4 News , 25 August 2023) <   https://www.channel4.com/news/the-domestic-slaves-rescued-from-londons-richest-streets > accessed 5 January 2024. [27] Katharine Charsley and Helena Wray, ‘“Just the rich can do it”: our research shows how immigration income requirements devastate families’ ( The Conversation , 5 December 2023) < https://theconversation.com/just-the-rich-can-do-it-our-research-shows-how-immigration-income-requirements-devastate-families-219246 > accessed 5 January 2024. [28]  Avid, ‘What is immigration detention?’ ( Avid ) < https://aviddetention.org.uk/immigration-detention/what-immigration-detention > accessed 5 January 2024. [29]  ‘Charities protest Capita AGM over controversial government GPS tracking contract’ ( PI , 11 May 2023)    < https://privacyinternational.org/press-release/5065/charities-protest-capita-agm-over-controversial-government-gps-tracking-contract > accessed 5 January 2024. [30] Refugee Action, ‘Lift the Ban: People seeking asylum are being frozen out of work’ ( Refugee Action) < https://www.refugee-action.org.uk/lift-the-ban/ > accessed 5 January 2024. [31] Alan Travis, ‘Home Office “go home” vans banned over misleading figures’ Guardian , (London, 9 October 2013)  < https://www.theguardian.com/media/2013/oct/09/home-office-go-home-vans-banned > accessed 5 January 2024. [32] Melanie Griffiths and Candice Morgan, ‘Deporting High Harm foreign criminals: Operation Nexus’ ( University of Bristol , October 2017) < https://www.bristol.ac.uk/media-library/sites/policybristol/briefings-and-reports-pdfs/2017-briefings--reports-pdfs/PolicyBristol_Briefing_October_2017_operation_nexus_web.pdf >; Liberty, ‘Operation Nexus Is Dangerous And Discriminatory. It Needs To Go’ ( Liberty , 1 June 2018) < https://www.libertyhumanrights.org.uk/issue/operation-nexus-is-dangerous-and-discriminatory-it-needs-to-go/ >; Alpa Parmar, ‘Arresting (non)Citizenship: the policing migration nexus of nationality, race and criminalization’ ( Faculty of Law Blogs: University of Oxford , 31 March 2020) < https://blogs.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/03/arresting > all accessed 5 January 2024. [33] Liberty, ‘Stop and Search’ ( Liberty ) < https://www.libertyhumanrights.org.uk/advice_information/stop-and-search/ > accessed 5 January 2024. [34] Deighton Pierce Glynn, ‘Aire Centre Appeals Operation Nexus Judgment’ ( DPG , 29 September 2017) < https://dpglaw.co.uk/aire-centre-appeals-operation-nexus/ > accessed 5 January 2024. [35] See ‘Super-complaint prepared by Liberty and Southall Black Sisters and Chief Constables’ < https://assets.publishing.service.gov.uk/media/5c1bc478ed915d730c0312fd/Super-complaint_181218.pdf > accessed 5 January 2024. [36] Vikram Dodd, ‘Police to stop passing on immigration status of crime victims’ Guardian  (London, 7 December 2018) < https://www.theguardian.com/uk-news/2018/dec/07/police-to-stop-passing-on-immigration-status-of-victims > accessed 5 January 2024. [37] See ‘Safe to share? Report on Liberty and Southall Black Sisters’ super-complaint’ ( Gov.uk , 17 December 2020) < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/945314/safe-to-share-liberty-southall-black-sisters-super-complaint-policing-immigration-status.pdf > accessed 5 January 2024. [38] Sebastian Shehadi, ‘Police report hundreds of crime victims a month to immigration service’ The New Statesman (London, 27 June 2022) < https://www.newstatesman.com/politics/society/2022/06/police-refer-crime-victims-deportation-home-office > accessed 5 January 2024. [39] Hackney Citizen, ‘Council’s use of embedded Home Office staff criticised as part of “hostile environment”’ Hackney Citizen  (London, 16 November 2018) < https://www.hackneycitizen.co.uk/2018/11/16/councils-use-embedded-home-office-staff-criticised-part-hostile-environment/ > accessed 5 January 2024. [40] Amelia Gentleman, ‘Windrush scandal: Albert Thompson still in dark about cancer treatment despite May’s promise’ Guardian  (London, 19 April 2018) < https://www.theguardian.com/uk-news/2018/apr/19/windrush-albert-thompson-cancer-treatment-theresa-may > accessed 5 January 2024. [41] Reni Eddo-Lodge, ‘The Windrush Betrayal by Amelia Gentleman and Homecoming by Colin Grant—review’ Guardian (London, 23 November 2019) < https://www.theguardian.com/books/2019/nov/23/windrush-betrayal-amelia-gentleman-homecoming-colin-grant-review > accessed 5 January 2024. [42] Kevin Rawlinson , Nadeem Badshah, and Matthew Weaver, ‘Windrush scandal: timeline of key events’ Guardian (London, 31 March 2022) < https://www.theguardian.com/uk-news/2018/apr/16/windrush-era-citizens-row-timeline-of-key-events > accessed 5 January 2024. [43] Almaz Teffera, ‘The Windrush Scandal 5 Years On—What Needs to Change?’ ( Human Rights Watch , 23 June 2023) < https://www.hrw.org/news/2023/06/23/windrush-scandal-5-years-what-needs-change > accessed 5 January 2024. [44] Equality and Human Rights Commission, ’Public Sector Equality Duty assessment of hostile environment policies’ (November 2020) < https://www.equalityhumanrights.com/sites/default/files/public-sector-equality-duty-assessment-of-hostile-environment-policies.pdf > accessed 5 January 2024. [45] Amelia Gentleman, ‘Windrush scandal caused by “30 years of racist immigration laws”—report’ Guardian (London, 29 May 2022) < https://www.theguardian.com/uk-news/2022/may/29/windrush-scandal-caused-by-30-years-of-racist-immigration-laws-report > accessed 5 January 2024. [46] ibid. [47] ibid. [48] ibid. [49] Hélène Mulholland and Matthew Tempest. ‘System “not fit for purpose”, says Reid’ Guardian (London, 23 May 2006) < https://www.theguardian.com/politics/2006/may/23/immigrationpolicy.immigration1 > accessed 5 January 2024. [50] David Ramsbotham, ‘UK Border Agency shames our nation’ Guardian  (London, 19 August 2009) < https://www.theguardian.com/commentisfree/libertycentral/2009/aug/18/uk-border-agency > accessed 5 January 2024. [51] Natalie Bloomer and Samir Jera, ‘Revealed: MPs using immigration enforcement hotline to report people to the Home Office’ ( politics.co.uk , 1 September 2017) < https://www.politics.co.uk/news/2017/09/01/revealed-mps-using-immigration-enforcement-hotline-to-report-people-to-the-home-office/ > accessed 5 January 2024. [52] Eleanor Weber-Ballard, ‘MPs Must Stop Informing On Constituents For Immigration Enforcement! Join Our #Mpsnotborderguards Campaign’ ( Migrants Organise , 12 October 2018) < https://www.migrantsorganise.org/mps-must-stop-informing-on-constituents-for-immigration-enforcement-join-our-mpsnotborderguards-campaign/ > accessed 5 January 2024. [53] Ed Lewis, ‘Why we’re asking MPs not to act as border guards’ ( Global Justice , 19 June 2018) < https://www.globaljustice.org.uk/blog/2018/06/why-were-asking-mps-not-act-border-guards/ > accessed 5 January 2024. [54] Aaron Walawalkar, ‘Revealed: 91% Increase In MP Tip-Offs To Immigration Enforcement In Two Years’ ( EachOther , 28 November 2019) < https://eachother.org.uk/revealed-mps-immigration-enforcement/ > accessed 5 January 2024. [55] Jessica Elgot, ‘MPs criticised for calling immigration hotline 68 times in year’ Guardian (London, 12 October 2018) < https://www.theguardian.com/uk-news/2018/oct/12/mps-criticised-for-calling-immigration-hotline-68-times-in-year > accessed 5 January 2024. [56] Bonavero Institute of Human Rights, PLP, Amnesty International, Liberty, ILPA, ‘5 ways the Illegal Migration Bill threatens our constitution’ ( Public Law Project , 23 May 2023) < https://publiclawproject.org.uk/resources/5-ways-the-illegal-migration-bill-threatens-our-constitution/ > accessed 5 January 2024. [57] Masha Gessen, ‘Comparison is the way we know the world’ ( Zeit Online , 18 December 2023) < https://www.zeit.de/kultur/2023-12/masha-gessen-rede-hannah-arendt-preis-english > accessed 5 January 2024. [58] ibid. [59] Diane Taylor, Rajeev Syal, and Emine Sinmaz, ‘Rwanda asylum flight cancelled after 11th-hour ECHR intervention’ Guardian  (London, 15 June 2022) < https://www.theguardian.com/uk-news/2022/jun/14/european-court-humam-right-makes-11th-hour-intervention-in-rwanda-asylum-seeker-plan > accessed 5 January 2024. [60] Emiliano Mellino and Matthew Chapman, ‘“All that is missing is a whip”: Home Office ignored migrant worker abuses on farms’ ( Bureau of Investigative Journalism , 22 October 2023) < https://www.thebureauinvestigates.com/stories/2023-10-22/all-that-is-missing-is-a-whip-home-office-ignored-migrant-worker-abuses-on-farms > accessed 5 January 2024. [61] Migrants Organise, ‘Stopping is not an option’ ( Migrants Organise , 20 December 2023) < https://www.migrantsorganise.org/wewontstop/ > accessed 5 January 2024. [62] Migrants Organise ‘Justice for Simba—We Won! Read Simba’s Letter’ ( Migrants Organise , 8 August 2022) < https://www.migrantsorganise.org/justice-for-simba-we-won-read-simbas-letter/ > accessed 5 January 2024. [63] See Haringey Welcome’s Pledge < https://haringeywelcome.org/pledge/ > accessed 6 January 2024. [64] See < https://haringeywelcome.org/ >; < https://www.migrantsinculture.com/ >; < https://www.pomoc.org.uk/ >; < https://www.carag.co.uk/ >; < https://www.wastmanchester.com/ > all accessed 6 January 2024.

Peter Krausz was born in Romania in 1946. He studied mural painting from 1964 to 1969 at the Bucharest Institute of Fine Arts. Since 1970, he has made Montreal his home. His diverse artistic production includes painting, drawing, installation, and photography. From 1980 to 1990, he was the curator of the Saidye Bronfman Centre Art Gallery and a teacher at Concordia University. In 1991, he joined the faculty at the University of Montreal where he is now a tenured Professor of Fine Art in the Art History and Cinema Studies Department. Since 1970, Peter Krausz has participated in numerous solo and group exhibitions in Montreal and across Quebec, Canada, and the United States, as well as in Europe. His works can be found in private and prominent public collections such as The Montreal Museum of Fine Arts, The National Museum of Fine Arts in Quebec, The Montreal Contemporary Art Museum, The Jewish Museum in New York, and many others. He is a member of the Royal Canadian Academy. Gabriella Kardos: You grew up in an artistic household in Romania, your father a renowned painter and professor, your mother an art historian, curator at the National Gallery of Art. You must have been exposed to discussions about art and art history from an early age. How did that shape your desire/choice of becoming an artist?   Peter Krausz : It was not much of a choice. Like Obélix in Goscinny and Uderzo’s Astérix le Gaulois  [ Asterix the Gaul ], one could say that I fell into the pot from an early age. I listened and later participated in the weekly discussions between painters, sculptors, art historians, and so on in our very open house and started drawing and copying Velázquez paintings from my father’s art books when I was 5 years old. As a teenager, I often accompanied my dad to the month-long summer camps for art students in different areas in Romania, where I was painting and drawing the countryside. So, it was more of a natural development, leading towards the entry exam to the Art Institute in Bucharest. GK: The theme of borders features strongly in your work. How did it evolve? I imagine your escape from the communist regime of Romania must have played a part in this. Can you recount the experience of crossing the border from the Eastern bloc to the West? What was the political context and what made you decide to leave your native land, risking your ability to ever return, or even imprisonment?   PK : We felt that we were living in a cage—even if towards the middle of the sixties the communist regime was more relaxed, we were not allowed to travel except in other communist countries. And by the end of the decade, we had the feeling that things will only get worse after the invasion of Czechoslovakia by the Warsaw Pact. More nationalism and antisemitism and a feeling that the regime is hardening its authoritarian position. This proved to be true after we left and after Ceausescu’s return from China and his developing cult of personality. The risk I took doesn’t compare to the risk that my parents took, leaving behind their jobs, friends, and family, trying to provide a better future for their son.   As for how it happened—we asked for passports to be able to travel to Czechoslovakia. We had to ask separately, at different times, because normally a member of the family was supposed to stay behind. We tried a few times to cross the border from Hungary and then Czechoslovakia to Austria under the pretext that we wanted to visit the museums in Vienna. My father wanted to turn back home but we decided to try for the last time at a small border crossing. The frontier guards took our passport and we waited for a terrifying 10 minutes until the officer handed back our documents and let us through. I drove our East German-built three-cylinder Wartburg car nonstop to Vienna and slept on benches in a park.   The concept of borders, frontiers that are often imposed arbitrarily and many times brutally on nature, landscapes, and humans, constitutes a long-standing preoccupation as well as a visual source. After the ‘Berlin Series’ inspired by documents I found in 1987 at Checkpoint Charlie in Berlin, I returned to this subject in 2007. (No) Man’s Land refers to the ‘Nekri Zoni’, the ‘Dead Zone’ that runs across the landscape from one end of the island of Cyprus to the other, dividing the Greek and Turkish Cypriot communities. I worked on this project for over 3 years. GK: What prospects did you have as an artist in Romania if you remained there? Would you have had to conform to political dogma? PK : If I stayed in Romania and respected the dogma, I probably would have become a member of the Artists’ Union and had a cozy, set life or I would have tried again to escape and maybe ended up in jail.   GK: How did the ‘free world’ receive you? How did you manage once you crossed the border and how did you end up in Canada? Why did you choose Montreal? PK : In Vienna we had help from JIAS (an organization helping Jewish refugees). After two weeks, we were sent by train with many, mostly Polish, Jewish ‘escapees’ to Rome to wait for our visas for Canada. There were not that many countries that received political refugees, the US was not a choice for me because of the war in Vietnam. My father wanted to get out of Europe, fearing a Soviet invasion, and they had friends in Montreal. We were speaking French and we had English language lessons in Rome thanks to JIAS. The 8 months in Rome were incredibly important for my artistic development. I was working at all kinds of jobs during the day (delivery, demolition work, fake ‘antique’ furniture, or chauffeuring for a crazy lady) but also drawing, photographing, and even filming with my Russian-built Super 8 film camera. I also got to travel to Assisi and Florence to look at the frescoes and paintings I had studied at the Art Institute back home. I even hitchhiked to Paris and back.   GK: How easy was it to penetrate the Canadian art world? How did you make a living before you started to teach and sell your work?   PK : I worked again at all kinds of jobs to make a living—window display for the Reitman’s stores, wrapping musical instruments in the shipping department at Peat’s Musical Supplies, cutting rubber stamps for London Stamp and Stencil, and so on. But I was painting, drawing, photographing, and even had solo shows, and I was participating in group exhibitions. I was obviously an outsider, but this changed when I started working for Mira Godard, the owner of Mira Godard Gallery who soon became Marlborough Godard Gallery in Montreal and Toronto. The Gallery represented some of the most important artists from Montreal and Canada: Jean McEwen, Charles Gagnon, John Fox, and others, but especially Yves Gaucher, who became my friends. I was very lucky to have the gallery, the collectors, the artists, open the door to the artistic milieu of Montreal in such a short time and at the highest level. I quit the gallery in 1976 when I received my first Canada Council grant that enabled me to have a year of uninterrupted work and started showing my work in more important galleries.   In 1980 and for the next very busy and exciting 10 years I was teaching drawing at Concordia University while at the same time being a curator and director of the Saidye Bronfman Centre and participating in important group and solo shows.   GK: You mentioned in a documentary that you became aware of your Jewish background for the first time once you were called a ‘dirty Jew’ and that from that moment on you ‘became a Jew’, that otherwise your life did not distinguish itself from anyone else’s. How old were you at the time and how were you affected by this newly found identity? Was antisemitism another reason for fleeing Romania and what effect has it had in shaping some of your later art projects? PK : I was maybe nine or ten years old when other kids called me that, and I remember how shocked I was, not hurt but shocked. It was the first time I came face to face with the realization that I was outside the ‘normal’ group. My parents were Jewish but not at all religious. It was not an overt antisemitism I came across in Romania and later it was more the history of the Jews and the cyclical aspect of this history: pogroms, autos-da-fé, expulsions, renewals, destruction, and rebuilding. Incredible achievements and Holocaust. Antisemitism was going on for thousands of years and it is flourishing again.   GK: In your 1992 series Traces-Mémoire, two hundred and fifty lead plates carry the simple but poignant inscription of a place and date recalling historical events of the persecution of the Jews in France, the juxtaposition of dates chillingly exposing the cyclical aspect of these atrocities. Can you talk about this project, what led you to it, how did you develop it, your ideas and choice of materials? PK : In the early 1990s I did a few works related to history, Jewish history in particular. Night Train , composed of 14 oils on oxidized copper panels, now in the collection of the Jewish Museum in New York, was inspired by Claude Lanzmann’s 9-hour documentary Shoa . A bas relief mural for the Jewish General Hospital was about Jewish doctors and the history of their peregrinations from place to place. In 1991, I had a solo show in Paris and then I was invited to show in Montpellier at the Galerie d’art contemporain. I was impressed by the early and continuous presence of the Jewish communities in the South of France, particularly of the Jewish doctors at the Montpellier University. And on the negative side, the vandalism and desecration in 1990 of the Jewish cemetery in Carpentras. I decided to work on the 2000 years history of Jews in France. The main corpus of the Traces-Mémoire installation was composed of 250 lead plates divided in 5 rectangles, each with the engraved places and dates where rather nasty things happened, ending in 1990 with Carpentras. In the middle of the space, I’ve placed 125 tongues of animals made in ceramic covered by an iron oxide patina. In my research (published for the show), I found that the Jewish elders in Avignon had to bring to the municipality the tongues of every animal that was slaughtered during the week or month! As for the materials: I love working with lead! And its many aspects: malleable and soft like skin but with a strong presence and heaviness, the grey colour and opacity and the fact that it was used for coffins. And how about trying to transform lead into gold?!   GK: The border between the seen and the unseen, or what lies beneath the surface, seems to be a major preoccupation in your work. Thus, in your paintings of buried heads or bodies of the 1980s, the heads have their eyes open, as if they are not dead, but only sleeping, which brings somehow an element of hope. I also see here the border between your deliberate exploration of history and your unconscious, your personal history. Would you agree? PK : For me there is always a visual ambiguity between sleeping bodies and dead ones. And a hope subsists in a reverse situation—maybe they are not dead. Unfortunately, this was not the case with the Katyn Forest Massacres where more than four thousand Polish officers were killed in 1940 by the NKVD, or the Babyn Yar massacres of thousands of Jews by the German Army. In both cases the bodies were buried and rediscovered much later. These terrible events were not part of my history, but I was trying to come to grips visually with this idea of thousands of bodies disappearing in the earth, in a forest or in a ravine. Or on an island ( L’Ile devant Chinon , 1986) where Jewish inhabitants from Chinon were taken and burned alive in the 14th century. Or at sea ( Même vaisseau, même ouragan, même abîme , 1982-1986), inspired by a Greek epitaph translated by Marguerite Yourcenar. As Jorge Luis Borges said, ‘the task of art is to transform what is continuously happening to us, to transform all these things into symbols, into colours, forms or sounds…’ GK: Your subject matter revolves around the traditional genres of portraiture and landscape, but you transform them into a highly personal form of expression. You push the boundaries of these genres but never stray away from them into complete abstraction. How important is it for you to maintain this link to the human space? PK : There are many links between abstract or figurative paintings, one deals with the same elements: composition, colours, size, brush strokes, and so on. If you zoom into a Velázquez, Gauguin, or Manet painting you will find all the abstract elements. I appreciate abstract artists like Rothko or Sean Scully, but I am not able to start a painting ex nihilo . It is just not my cup of tea—it is not enough for me. GK: In your latest work, the landscape has taken over the portrait. This transition is gradual and can be seen in your earlier work, where heads and bodies are tilted and eventually recline to become in themselves landscapes of emotion. One such example is Miserere , a large drawing of a reclining figure stretching over 18 metres of wall space in your 1987 Archipelago  installation. A tragic sense of loss and human suffering permeates this work. Does the horizontal aspect attempt to bring the viewer into the realm of the subconscious? And is this a lead into your future landscapes? PK : The large drawing was part of an installation at the ‘Stations’ international exhibition in 1987. Artists were asked to interpret the idea of ‘Stations’ their own way. Francesco Clemente for example showed his ‘Fourteen Stations’ paintings. My installation was inspired by Varlam Shalamov’s book about his 14 years spent in detention in the Gulag. He describes the different ‘Stations’, from cutting wood in the Taiga to ending up in the gold mines, from where not many inmates returned. The drawing of the horizontal body was done in iron oxide pigment on a wet clay surface I applied to the wall. I was inspired by Shalamov’s story of inmates who died in the winter and could not be buried because of the cold and were just thrown in the snow. In the spring, the frozen bodies started rolling down the mountain side. I did the sketch after one of the plaster casts in Pompeii. Landscapes or cityscapes were always part of my interests but mostly as a background to the story ( Berlin Series , 1988, or Champs, paysage paisible , 1986, for example) The real focus on the landscape came after the fall of the Berlin Wall in 1989 and the Revolutions in the former communist countries. I hoped, very foolishly in retrospect, that we are at the start of a new, more peaceful, and civilised era. The relation between Humans and Nature became more and more a preoccupation for me. I started working on series of paintings like De Natura (Humana) , Landscape and Memory  (the title of the very influential book by Simon Schama), and so on. GK: Your father has been an important subject in your work, especially in his old age. Your depictions of him lovingly depict a world of feelings, but go beyond the personal, becoming landscapes of the heart. On his face we see the ravages of time. And there is also an ambiguity there between where the portrait of him ends and a possible representation of you begins. Were you aware of this aspect at the time, did you become aware of it later? PK : In 2006, I was invited to do a lithograph for a fundraising. I printed a portrait of my father and titled it Portrait de l’artiste à 87 ans . It was the age of my dad at that time, but it was interpreted as a self-portrait! I was a model for him very early on, posing for one of his huge social realist paintings and he painted an excellent portrait of me when we were in Rome in 1969. Beginning in the 80s, I started drawing and then painting him more and more often, sometimes integrated in the landscape. Maybe a premonition of his passing? I don’t know.   GK: Your work carries a deliberate ambiguity even when it references historical events. In the same way that your father’s face may seem like yours projected in time, your landscapes allude to many possible locations. How are they constructed? Do they combine elements of the real and the imaginary? PK : I didn’t want to pinpoint a specific location when I started concentrating my attention on the landscape. The paintings did not include skies, horizon lines, buildings, or people, only traces of their work in the fields. Eliminating all of that made the paintings atemporal, more universal. Even if the paintings were based on my love and research of the Mediterranean landscape, where the dialogue between people and nature started with the advent of agriculture 10,000 years ago. This nature, even if beautiful, caries the traces of history, it is not a virgin landscape. I believed, as did Caspar David Friedrich, that the landscape could channel powerful feelings and convey to the viewer an experience of awe widely referred to as ‘the sublime’. As for the way the landscapes were constructed: the paintings were based on sketches and photos done mostly in Sicily and Spain but also in Turkey, Cyprus, or Romania. These sketch books and photographs were then sources for inspiration in the studio in Montreal where I worked in series of paintings trying to arrive, in a finished work at the same emotion I’ve felt in front of a particular landscape. The paintings are based in reality, but this emotion is based on memory and imagination. GK: On the easel in your studio, I saw a painting of a large fire dominating the sky above a narrow black and white skyline of your native town Brasov, which I came to understand is a reconstructed memory from the story that there was a great fire on the mountain the day you were born. I also see many other fires in your latest paintings, and they are dramatic, powerful, and visually seductive. What is the driving force behind them? PK : As you mention, fires are visually seductive, as are volcanoes, there is that element of the ‘sublime’ combining beauty and danger. But one must be careful not to be ‘engulfed’ in the seduction! I only did one other painting last year that was directly inspired by the terrible fires we had in Canada and then I remembered the story of the fire that started the day I was born on the mountain surrounding Brasov. The black and white image of the city was based on documents I’ve found, and I wanted to keep the monochrome as a faded memory. I remembered also that Brasov was renamed in 1950 ‘Orasul Stalin’ ‘Stalin’s city’ in honour of the great dictator, and a huge STALIN was written on the mountainside. But this is another story!   GK: Skill is something you possess and continually develop. While strongly embedded in tradition you like to experiment, testing the boundaries between materials and genres. You have been working with egg tempera in your landscapes for over fifteen years. Can you describe the process, and did you learn it during your academic training in Romania? What are the distinguishing qualities of egg tempera? In an earlier interview you stated that the ‘secco’ method enables you to position yourself in time, to sense its passage. Can you elaborate? Do you ever use oil paint as well in the same painting? PK : The Bucharest Art Institute was a very good school where one learned and practiced many different painting techniques and materials for six years. Depending on the subject matter that inspires me, I may choose to use one of these, or to combine them. My exhibition at the Gallery of the Universitè de Montréal had the title ‘Eklektikos’, referring to this eclectic use of materials and subject matter that inspired me for over 50 years.   I am using oil paint on canvas for my recent ‘Armenian ‘series, oil paint on found book covers framed in lead for the ‘Interior/Exterior’ series, conté sticks on Mylar and charcoal and pastel on paper for my drawings and egg tempera for the landscape series. Plus photography, etchings, woodcuts and so on. I prefer the term ‘Secco’, referring to Mural Painting, because I am painting as one would paint a Fresco, rather freely, instead of cross hatching and small brush strokes normally used in egg tempera. Nevertheless, painting in egg tempera is a longer process, involving layers and layers of paint. If I compare the time it takes working with egg tempera to the one working with oils, I can say that one is a marathon and the other a 100-meter sprint! But there are advantages also: the luminosity and the richness of the colours given by the white background and the pure pigments. GK: Your work is highly researched. You visit places of personal interest to you, take photographs, do preparatory sketches, plan, decide on materials, etc. To what extent do you also improvise? Do you ride with the wave of intuition while working in the studio? How important is the element of chance in your creative process? PK : There is definitely an element of intuition when you start using all the materials you bring from your trip and research. How else would you decide things like the size of your canvas or the materials that you would use? One needs a lot of practice and then you can use your intuition to make decisions! There is also the element of chance—things, accidents, happening by chance in a painting that your intuition will push you to use and transform. Without intuition and chance, one would only be doing illustrations! 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. Kardos taught 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 etching.

This time, it feels like it is finally happening—until Abu Salah comes home with the dreaded news: ‘Wait another two days until the strong winds die down ’. Roliana cannot understand. ‘Daddy, why don’t we just take the airplane?’ she asks. [1]     I. Introduction   Seeking safety and entry into the territory of a state to initiate an asylum procedure, is often a life-risking and traumatising endeavour. Yet, thus far, the state parties to the 1951 Convention Relating to the Status of Refugees (1951 Geneva Convention) including all member states of the European Union (EU) refuse to offer accessible safe passage.[2] The lack of sufficient humanitarian visas exacerbates the situation and forces refugees on perilous journeys across deserts, the sea, and violent borders.[3] Five-year old Roliana and her family fled from Aleppo, in 2012.[4] Part of the city was captured by rebels; regime forces subsequently dropped barrel bombs on densely populated urban areas.[5] Due to the escalating conflict, the family moved up north, towards Afrin, but the war caused water and electricity shortages, dysfunctional schools, and a lack of work.[6] The family decided to cross into Turkey, and eventually to Greece.   This is not a single story, the Syrian conflict has displaced over 12 million.[7] While the forced movement of refugees is one aspect of war and conflict, no conflict is waged without grave breaches of the laws of war, without violence against civilians. The barrel bomb attack on Aleppo by the Syrian regime as well as the indiscriminate shelling by Opposition groups as a response most likely constitute war crimes.[8] Those fleeing conflict zones and wars such as in Syria, like the family of Roliana, but also in Afghanistan, Eritrea, Ukraine, or Sudan, have often experienced these unimaginable crimes. They may have been victims and/or witnesses of war crimes, crimes against humanity or even genocide.   However, instead of issuing visas and thereby opening a safe route by air, the EU imposes sanctions on carriers such as airlines which forces people on dangerous journeys.[9] At Europe’s land borders, the search for a safe haven is answered with entry prevention measures and violence, a systematic practice depriving refugees of their right to seek asylum and freedom from harm that may itself amount to crimes against humanity.[10] Having fled the crimes in their home countries, asylum-seekers are likely to become victims of international crimes in transit again.   Disconnected Realities And yet, even upon arrival in states that provide access to regular asylum procedures, this essential part of a refugee’s experience—the manifest violations of human rights relevant under international criminal law (ICL) before and during the flight—remains outside the scope of the asylum process. The asylum procedure only aims to determine if the applicants meet the legal criteria according to the 1951 Geneva Convention. If so, beneficiaries of international protection are granted a respective residence permit as well as the 1951 Convention travel document .[11] The individual interest of many refugees to seek truth and justice for the harm suffered remains unaddressed in the asylum context.[12] It is only recognised in international treaties dealing with severe harm[13] and under the rules of international criminal law, above all, the Rome Statute of the International Criminal Court (ICC).[14]   According to the ICL framework, victims and witnesses—and the international community—have the legitimate interest to seek justice for the egregious crimes which caused the flight or were committed during passage.[15] Although asylum authorities are the first contact point dealing with causes of flight and the experiences en route , this important aspect is not automatically addressed on the national level. Thus far, refugees do not receive the necessary support to address this unanswered part of their suffering after their arrival.   Removing the Barriers While it is recognised that not all refugees have the desire to pursue any additional step in the criminal law realm, for those who do, the access to such justice mechanisms may be particularly difficult. Refugees who have an interest and are potential witnesses or participating victims in (international) criminal investigations also have a right to effectively access justice mechanisms.[16] How can they be accessed? Who can assist in this difficult process? From where can information be obtained? With few inspiring exceptions, most non-governmental organisations (NGOs) and institutions that support refugees on the national level do not deal with international criminal law issues.[17] Vice versa, most international criminal law NGOs do not deal with refugee law topics.[18]    We hold the opinion that it is necessary to develop a holistic approach and integrate both perspectives: the search for security and safety by applying for refugee status and the seeking for justice regarding international crimes they may have become victims of. We believe that the work with and for refugees in the host states is the most pertinent starting point to pursue this goal. Both aspects could be addressed simultaneously from the outset. We therefore propose that through highly qualified refugee consultancy in the host states, borders between international criminal law and refugee law can be disentangled in practice and barriers to accessing these mechanisms removed. We first demonstrate how the two perspectives are intertwined and yet treated separately before suggesting taking a holistic approach to law and the experiences of human beings.   II. Victims and Witnesses of Crimes under International Law as Refugees   Wars and conflicts around the world have forcibly displaced millions. While the vast majority of those displaced resettle internally or in neighbouring countries, by 2023, the EU has become host to over 7.5 million refugees.[19] According to the refugee definition in Article 1A of the 1951 Geneva Convention, a person must have ‘a well-founded fear of being persecuted’.[20] The persecution must be based on one of the five listed grounds. The list includes political, religious, and national grounds. While the category of ‘a particular social group’[21] can be regarded as an avenue for the progressive interpretation of the law, the list is exhaustive and thereby limits its application significantly. Eligibility for refugee protection is determined against the individual circumstances and a future-oriented risk upon return ( ex nunc  assessment).[22] The asylum application thus addresses the critical question of whether the individual makes a substantiated claim facing a real risk or harm upon return. Using the example of the EU, we want to shed light on how this future-oriented protection is ensured and where the legal frameworks address past-related burdens of war, thus demonstrating how the intersection of the two legal fields is manifested in their provisions. The Current Legal Framework in the EU The right to asylum is a fundamental right.[23] It guarantees that anyone fleeing persecution or serious harm in his or her country of origin has the right to apply for international protection. The parties to the 1951 Geneva Convention, hence also all EU member states, are obliged  to guarantee this right to persons who meet the criteria set out in the Convention.[24] On the EU level, the right to asylum is enshrined in Article 18 of the Charter of Fundamental Rights of the European Union and refers to the 1951 Geneva Convention.[25] Thereby, the EU has integrated the conditions for granting international protection into its regional legislation. Yet, the EU developed the substantive and procedural law further in order to ensure the highest standards and close protection gaps. Mindful of the aforementioned limitation of the refugee definition in Article 1A of the 1951 Geneva Convention, the EU has adopted several additional instruments and expanded the scope of protection.[26]    Qualification for Protection: Individual Harm and Indiscriminate Violence The member states of the EU have adopted the so-called Common European Asylum System (CEAS) which anchors refugee protection, subsidiary protection as well as temporary protection.[27] The Qualification Directive (QD) can be considered the centrepiece of EU asylum law.[28] It provides the legal basis for international protection statuses. It defines who is recognised as a refugee or beneficiary of subsidiary protection and grants a set of rights for beneficiaries (residence permits, travel documents, access to employment and education, social and health benefits).[29] According to Art 10 QD, a refugee is a person who faces persecution on one of five listed grounds which are defined in the directive and mirror the exhaustive list of the 1951 Geneva Convention.[30] Art 9 QD indicates that the violation must reach a certain severity.[31] Refugee protection is designed to cover human rights violations that are sufficiently serious and target the individual.[32] To overcome the limitations of the refugee definition, the concept of subsidiary protection (Art 15 QD) addresses this protection gap. It focuses on two broad notions. First, individual harm that is considered to be as serious as the harm covered by Art 10 QD, yet none of the grounds apply. The death penalty and torture are two examples.[33] Secondly, harm that arises from a certain context and may be collectively experienced. While this depicts an abstract risk, subsidiary protection recognises that in the context of ‘indiscriminate violence’[34] it is sufficiently probable that the individual may face serious harm upon return. The context of a war and international crimes committed therein thus warrant international protection.[35] The provisions and the spirit underlying the current rules for qualification in EU refugee and asylum law thus reflect the war-related burdens. Effectively Exercising Fundamental Rights? Asylum procedures must not be fully harmonised across the Union, yet minimum standards must be provided in all member states.[36] The procedural aspects are designed to ensure access to and effective exercise of the fundamental right to international protection. The CEAS consists of several legal acts that cover all aspects of the asylum procedure. The instruments include the so-called Dublin Regulation.[37] One of the most controversial instruments applicable in the EU, it determines which member state is responsible for the asylum procedure of an applicant. It is widely considered as unfairly overburdening the member states that have external EU borders and regularly become the state of first entry—establishing responsibility according to the Dublin regulation.[38] The Asylum Procedures Directive, setting common standards for fair and efficient asylum procedures, further constitutes an essential part of the EU asylum system.[39] Without ensuring that the necessary infrastructure is provided, and the asylum procedure can be accessed, a fundamental right is void of meaning. Not only the access to but also the conditions during the asylum procedure must abide by a set of common minimum standards. The Reception Conditions Directive (RCD) establishes such standards for living conditions ensuring applicants have access to shelter, food, employment, and health care.[40] The RCD postulates that asylum-seekers must be treated appropriately, particularly those who are considered the most vulnerable such as women, children, and persons with disabilities.[41] As mentioned in the introductory paragraph, there are reasons for concern that asylum-seekers are not cared for humanely. Quite the opposite, the treatment may not only violate the EU asylum legislation, it may also be relevant as crimes under international law. Moreover, according to the RCD, special attention should be paid to victims of torture since they are also considered vulnerable persons.[42] Torture is not only internationally considered prohibited ( ius cogens ),[43] it is also a crime commonly committed in the face of war and conflict. (Systematic) torture is a crime against humanity according to Article 7 (1)(f) ICC Statute and a war crime according to Article 8 (2)(a)(ii) ICC Statute.[44] Recognising the vulnerabilities that result from conflict-related crimes indicates the awareness underlying the EU asylum system. Above all, it reflects its historical roots of international protection in the aftermath of World War II.[45] Yet, also in its contemporary form, the EU asylum system should be equipped to build the bridge between the reality of a victim of a severe crime suffered in the past and that of a person seeking protection from severe harm in the future—both substantively and procedurally. Acknowledging the Crimes in the Context of Asylum Given this high standard of protection[46] which reflects the crimes commonly committed in the context of war, it is regrettable that the national asylum authorities responsible for conducting interviews with asylum-seekers do not address the criminal dimension. During the interview, the protection claim should be explored comprehensively.[47] Yet, asylum officers are neither trained nor instructed to proactively inform refugees about existing avenues to legal proceedings in the ambit of criminal law. Refugees therefore lack information about the rights and opportunities to engage in such processes as witnesses and/or victims. The crimes often remain unaddressed. By ignoring these experiences, the system fails to assist refugees who could not only contribute to the successful realisation of criminal investigations but also receive support in the search for answers related to the crimes they may have become victims of. Despite the reflection of previously suffered crimes in several EU provisions, the Union's asylum system remains ‘blind’ in practice.   Exceptional cooperation could be observed in Germany and Sweden and highlights the potential of a close relationship.[48] In Germany, in the years 2015/2016, the German Federal Office for Migration and Refugees explicitly and proactively asked Syrian asylum-seekers whether they had been victims and/or eyewitnesses of serious crimes before fleeing.[49] Although this practice was abandoned by the German authorities in the following years, the simple incorporation of a “yes” or “no” question served as an indicator and could be shared with the German war crimes unit for further investigation.[50] Although the asylum officers are generally obliged to share information about general leads, perpetrators, and victims/witnesses of crimes with a specialised unit which cooperated with the federal police,[51] this data is not obtained proactively but rather by chance. While no statistic on the success rate of investigations based on information acquired by explicit questioning is publicly available, the increase in prosecutions suggests that asylum-seekers were able to contribute to the advancement of criminal prosecutions against Syrian suspects.[52] Several Syrian asylum-seekers later appeared as witnesses and as victims who actively participated in the proceedings that were heard before German criminal courts.[53] While caution is warranted when documents such as the interview transcript from the asylum procedure are used in the realm of criminal law,[54] the example illustrates that the collaboration between asylum authorities and crime investigators is a fruitful approach. Since it does not come without risks,[55] both authorities must provide the highest standards of care. Officers must be mindful of re-traumatisation and repeated questioning should be avoided.[56] The example of Germany demonstrates that asylum authorities are in a position to attain valuable documents and statements obtainable in the context of the asylum procedure that could be used as evidence against war crimes defendants not only from Syria, but also from other states at conflict. Asylum for ICC Witnesses in the Netherlands? Another compelling example illustrating the lack of a meaningfully developed relationship between international criminal law and international refugee law can be observed in the Netherlands. Since the Netherlands is the host state of the ICC, conflicts between the Dutch government and the ICC over jurisdictional questions arose.[57] The ICC premises are considered an extra-territorial UN site, the court does not have its own territory.[58] One particularly striking example from May 2011 concerned suspects and witnesses who testified before the ICC. They had filed asylum applications in the Netherlands based on the claim that in light of their testimonies, they now had a fear of persecution if they were returned to their home country.[59] The central question of these legal proceedings was the responsibility of the Netherlands for the examination of the protection claim and, in particular, whether the Netherlands had to comply with the principle of non-refoulement .[60] It prohibits the return or expulsion of a person to a place where he or she may face torture, inhuman or degrading treatment.[61] It indicates that this fundamental right under international refugee law was not adequately considered for ICC witnesses/victims and suspects.[62] This legal dispute exemplifies the complex relationship between the Netherlands and the ICC as well as the relationship between refugee law and international criminal law issues. The case concerned several witnesses from the Democratic Republic of Congo (DRC) who were transferred to The Hague to testify in the trial against Lubanga et al.  before the ICC Trial Chamber.[63] While present in the Netherlands, these witnesses applied for asylum with the Dutch authorities. A case like this was not accounted for in the Rome Statute of the ICC nor any other regulation between the ICC and the Netherlands as its host state.[64] On December 28, 2011, the District Court of Amsterdam ruled that Dutch asylum law, based on the Immigration Act 2000, applied to three witnesses from the DRC who were called to testify before the ICC.[65] The Dutch government had previously argued that these witnesses were under the sole jurisdiction of the ICC because, after all, the ICC had brought them into the country. The Amsterdam court ruled that neither Dutch law nor the specific regulations of the ICC contained any provisions that would declare the Dutch Immigration Act inapplicable and that therefore the Netherlands had jurisdiction over the asylum procedure and final decision.[66] Despite press coverage and NGO engagement shedding light on this dispute and the uncertainties for the witnesses and the case, they were eventually returned to the DRC.[67] The argument more generally shows that ICC negotiators and ICL law makers did not take the potential refugee law implications of witnesses/victims as well as those acquitted appropriately into account when the court was created. Neither did the national governments, above all, the Netherlands foresee such situations and adequately implement solutions into their domestic laws or the agreement with the ICC.[68] In parallel, this example serves well to demonstrate how closely both areas of law interact and how they affect refugees and witnesses/victims. The example further highlights that the act of testifying, i.e. serving as a witness, may render a person eligible for international protection.[69] It is thus necessary to view both areas of law in the specific context.   III. Refugees as Victims and Witnesses of Crimes under International Law   Recalling the lack of awareness of the criminal law perspective by national asylum authorities and the demonstrated missing link between the ICC, its host state, and the responsibility for the protection of its witnesses and victims, the existing borders between asylum law and international criminal law become all the more visible. Concurrently, it requires a change in perspective from the focus on questions of international protection and the obstacles faced in the procedure towards the crimes that have possibly caused the flight and rendered a person a refugee.   Past Ill-Treatment as an Indicator of Crimes Under International Law Given the fact that crimes under international law were or are being committed in inter alia  Syria, Afghanistan or Ukraine, there is a high likelihood that refugees fleeing these countries of origin have become victims and/or witnesses of the most serious crimes. In addition to the example of Aleppo, in Syria, the civilian population has been targeted in a political campaign by the Syrian regime which, according to several rulings by domestic courts, amount to crimes against humanity.[70] ISIS/Deash has further waged a rampant religious campaign against civilians amounting to war crimes and the crime of genocide against members of the Yazidi community in Northern Iraq.[71] War crimes in Afghanistan have been under investigation by the Office of the Prosecutor (OTP) since 2006.[72] Since the takeover of power by the Taliban in August 2021, evidence suggests that the crime of gender persecution as a crime against humanity is being committed against women and girls.[73] The blatant invasion into the territory of Ukraine, the evidence available from Bucha, and the forcible transfer of Ukrainian children to Russia shockingly provide a record of the crime of aggression and the unlawful deportation and transfer of population as war crimes.[74]   Asylum-seekers from these and other states at conflict who file an asylum application must provide information on the circumstances of their departure and credibly explain that they face a well-founded fear of persecution or indiscriminate violence upon return.[75] The European Court of Human Rights (ECtHR) clarified that the asylum-seeker and the immigration authority share the burden of proof in ascertaining these facts.[76] It is noteworthy that the EU Qualification Directive contains an important facilitation mechanism in Art 4 (4): the credible submission of past ill-treatment is a ‘serious indication’[77] of such fear resulting in the shift of the burden of proof to the government.[78] The suffered harm may not only indicate a well-founded fear relevant to the asylum procedure, it may also indicate that the asylum-seeker was the victim of a serious crime. Hence, it could be considered an important linkage between asylum and international crimes once again. Asylum-seekers who substantiated their asylum claim of past ill-treatment may have likely suffered unimaginable harm that could be relevant under international criminal law. Refugees without the claim of past ill-treatment may concurrently be witnesses of such crimes. The wider implications of such asylum provisions in the context of international humanitarian law have received some attention in scholarly work,[79] yet very little consideration is given in practice. The theoretical engagement is thus useful tool to advance the integration of both perspectives.   EU Border Violence as Crimes Under International Law As mentioned in the introduction, the plight of refugees does not end with their flight from the persecutory state. The lack of humanitarian channels that would protect the human dignity of refugees and migrants,[80] forces them to take perilous journeys, risking their lives yet again. What has long been called a failure to manage migration,[81] has likely evolved in the deliberate and systematic violation of fundamental rights with the aim of deterring migrants and defending borders.[82] In recent years, several scholars and NGOs have put forward strong evidence that the EU migration-related policies amount to crimes against humanity and several so-called Article 15 communications to the OTP urging the ICC Prosecutor to initiate investigations into these allegations were submitted.[83] After having faced violence and war in their home countries, migrants are at a very high risk of being subjected to arbitrary imprisonment, enforced disappearance, beatings, push-backs, and other forms of inhumane and degrading treatment as the reports and communications powerfully demonstrate—yet without consequences for the alleged perpetrators thus far.[84] In this time of transit, one may ask whether victims and witnesses of egregious crimes have yet become ‘refugees’,[85] regaining dignity and rights which were so fundamentally violated that flight was the only meaningful choice. Or if this continuum of violence traps their very existence in the mode of rightlessness as many authors have argued.[86] The current asylum system in, but not limited to, the EU prevents refugees from exercising their rights and entering a safe environment afar from the traumatic experiences. It further hinders their right to seek and access justice mechanisms for the suffering endured.   The Right to Seek Justice and Avenues to Accountability The words of ‘truth and justice’ have been echoed repeatedly.[87] While they are abstract concepts, the right of access to justice is considered a fundamental right and an essential component of the rule of law. Without the accessibility of justice mechanisms, human rights remain illusionary.[88] While international and regional legal frameworks provide the individual with such rights, the de facto accessibility is often impeded—particularly for migrants who are outside the jurisdiction of their home state.[89] The question of individuals standing before international courts and institutions is a controversial issue in international law.[90] Communications to the UN Human Rights Committee (HRC) and regional complaint mechanisms are available,[91] but access to justice for crimes committed by the perpetrators in their home state or in transit remains rare—or non-existent. While the ICC is the predominant institution, established with the single objective to prosecute the most serious crimes, the example of Syria demonstrates that the court is not a panacea. Syria is not a state party to the ICC Statute, nor could jurisdiction otherwise be established.[92] It thus remains inaccessible for victims of the crimes committed in the territory of Syria. Hence for victims of severe crimes suffered in Syria, the domestic sphere is the only available avenue to accountability.   Based on the principle of universal jurisdiction which postulates that the most serious crimes may be prosecuted anywhere,[93] the recent rise in domestic criminal prosecutions is a fertile avenue to remedy for victims and witnesses. This ‘domestic turn’ has led to a set of invaluable improvements for witnesses and victims of international crimes.[94] Given the fact that initiating a criminal prosecution is a state affair, victims of crimes were regularly part of the proceedings as mere witnesses. More recently, thanks to a shift towards a more victim-centred approach, several states started admitting victims to join the proceedings as plaintiffs through domestic legislation.[95] In this role, additional rights and direct participation in the trial are granted.[96] Apart from the right to question the defendant or to receive psycho-social support, reparations through an accessory civil action for recovery are increasingly recognised.[97] This development reflects the individual’s interest in the punishment of the perpetrator. While the active participation may constitute individual redress for the injured party, it can also represent a symbolic value for an entire community.[98] To create an equilibrium between the state’s interest and private retribution, only grave violations of life, liberty and physical integrity are admitted for such actions.[99] Crimes against international law inherently correspond to such violations.[100]   Several cases in EU member states addressed the crimes committed in Syria, by state officials and ISIS affiliates, but also in Iraq against the Yazidi community.[101] There is no or very limited record for crimes committed in Ukraine, Afghanistan,[102] Myanmar and other states, but the completed or ongoing cases give valuable insight and may assist in identifying best (or worst) practices. In several Syria and ISIS-related domestic prosecutions, victims joined the proceedings and actively participated in the trials as private parties.[103] What is compelling is that most of the victims and witnesses are present in the territory of the prosecuting state or reside in another EU member state.[104] The majority of the victims and witnesses came as refugees who were willing and courageous to testify about the traumatic events which have caused their uprooting. As demonstrated above, the events have most likely been subject to the asylum procedure in which the claim of a well-founded fear was substantiated but is too often not fully explored or considered from an international criminal law perspective.[105] The past ill-treatment that indicates the real risk may now be evidence against an individual charged with crimes under international law. For the person testifying, it may very well be the exact same traumatic experience.   IV. Connecting the Disconnected—A Proposal   The scope of the applicable frameworks informs in which capacity a person may be addressed. In a simplified way, from the perspective of international criminal law, human beings are legally categorised as defendants, witnesses, and victims. Vise versa from a refugee law perspective, human beings are considered to be asylum-seekers, refugees, or beneficiaries of international protection. It suggests not only the capacity of the person but also, which part of a story is being told and eventually deemed relevant. The aforementioned deliberations invite us to distance ourselves from the narrow perspective that the legal fields innately dictate and widen the view towards a more holistic approach to law but also to the life realities of human beings.   Linguistically, the term holistic refers to the whole (Greek: holos ) and describes the interconnection of parts of something which can only be explained by reference to the whole.[106] Rarely does a phenomenon merely exist in a one-dimensional or linear manner. Yet concurrently, some phenomena are overly complex and cannot be addressed in their totality without compromising depth. Conflict and violence as well as migration are such phenomena. We nevertheless argue that migration in particular could deeply benefit from a holistic approach. Not only phenomenologically speaking but by considering a human being as a whole. A holistic approach could bridge the gap between artificially created categories and intimately connect life experiences and realities. A holistic approach to law is further warranted. Vincent Chetail has convincingly argued for an integrated approach of refugee law to human rights law.[107] He wrote that ‘the unity and diversity of international law is binding as a whole and its overall design makes sense only when its rules are understood and applied in their totality’.[108] War and conflict are the most fertile ground for crimes under international law and the main drivers of forced migration. Responses to them also make sense only when those who suffer most from their consequences are understood and cared for in their totality.   The Willingness to Thinking Beyond Categories How could an effective application of this approach be implemented in practice? We suggest that the field of refugee consultancy is the most promising starting point to address this change.[109] Refugee consultants provide free legal aid to asylum-seekers. Highly trained in asylum and refugee law, consultants create a trustful environment based on confidentiality and independence.[110] Through this direct access to professional assistance, refugees experience unconditional acceptance and support in their host state. In this setting, refugees may be able to provide a record of both—the crimes they suffered or witnessed and the reasons underlying their claim for international protection. As shown above, they may often be identical.   The implementation would certainly require resources and training for consultants in both fields of law. And yet, the major obstacle to a successful integration of a holistic approach to law and the life realities of refugees appears to be the current and manifest thinking in categories. Inspired by proposals in the realm of gender and anti-discrimination, a similar ‘post-categorical thinking’[111] that acknowledges the social process could enhance a shift to holistically address victims and witnesses as refugees and refugees as victims and witnesses. We therefore advocate for a willingness and openness to think beyond categories and thereby eliminate artificially created boundaries. Jens Dieckmann and Teresa Quadt Jens Dieckmann is a German lawyer. He is founding and Senior Partner of Becher & Dieckmann in Bonn (Germany) as well as Associate Member of Chamber 9BR International (London, UK). He has led international teams of lawyers at various international criminal tribunals. In addition, he has practiced as counsel on a wide range of national and international cases in International Human Rights Law as well as Asylum and Immigration Law. He was further appointed to the Expert Commission on Asylum by the Federal Board of Amnesty International, Germany. Since 2011, he has been Common Legal Representative, Associate Counsel, for Victims in the ICC Banda Case. Teresa Quadt is a PhD student in international law at the University of Malta researching crimes against humanity in the context of migratory flows. She holds a law degree from the University of Augsburg, Germany and a MA in EU Studies and Human Rights from the Universidad Católica San Antonio de Murcia, Spain. Since 2020, she is a member of the working group on international criminal law and since 2022, an appointed member of the Expert Commission on Asylum at Amnesty International, Germany. She also works as a consultant for the Syria Justice and Accountability Centre on universal jurisdiction cases. [1]  Pieter Stockmans, ‘Diary of a Syrian refugee family trying to reach Greece’  ( Al-Jazeera , 14 February 2016) < https://www.aljazeera.com/amp/features/2016/2/14/diary-of-a-syrian-refugee-family-trying-to-reach-greece > accessed 4 November 2023. [2]  Cathryn Costello, ‘It need not be like this’ (2016) 51  For ce d Migration Review 12, 13. [3]  Margarite H Zoeteweij-Turhan and Andrea Romano, ‘“ X and X v Belgium”: the need for EU legislation on humanitarian visa’  (2017)  sui-generis 69; Katia Bianchini, ‘Humanitarian Admission to Italy through Humanitarian Visas and Corridors ’ in Marie-Claire Foblets and Luc Leboeuf (eds), Humanitarian Admission to Europe  (Nomos 2020) 157, 188. [4]  Stockmans (n 1). [5]  OHCHR, ‘The use of barrel bombs and indiscriminate bombardment in Syria: the need to strengthen compliance with international humanitarian law’. Statement by Paulo Sérgio Pinheiro, Chair of the Independent International Commission of Inquiry on the Syrian Arab Republic Permanent Mission of Austria and Article 36 (Geneva, 12 March 2015) 2. [6]  Stockmans (n 1). [7]  UNHCR, ‘Syria Situation’ (2023) < https://reporting.unhcr.org/operational/situations/syria-situation > accessed 3 November 2023. [8]  OHCHR (n 5) 4; Syria Justice and Accountability Centre (SJAC), ‘Armed Opposition’s Indiscriminate Attacks in Aleppo’ (30 April 2014) < https://syriaaccountability.org/armed-oppositions-indiscriminate-attacks-in-aleppo/ > accessed 3 November 2023. [9]  Cathryn Costello and Michelle Foster, ‘(Some) refugees welcome: When is differentiating between refugees unlawful discrimination?’ (2022) 22(3)  International Journal of Discrimination and the Law 244, 265. [10]  See below at (n 83 ) for the work of scholars, lawyers, and activists  who engage with the question of crimes against migrants by EU states as crimes against humanity. [11]  Convention relating to the Status of Refugees 1951 [hereafter the 1951 Geneva Convention] Article 28 (1) . [12]  It is acknowledged that many refugees do not have the desire to initiate proceedings or participate in truth-finding endeavours because they want to leave the experiences behind. The wish to find closure by not engaging with any of the suggested mechanisms, must be respected. For those who do wish to engage in criminal prosecutions, this essay suggests a way forward. [13]  Among others, Convention against Torture and other Cruel, Inhuman or Degrading Treatment  (CAT) 1987  Article 13 ; International Covenant on Civil and Political Rights (ICCPR) 1976 Article 2 (3) . [14]  Rome Statute of the International Criminal Court 2002 [hereafter the ICC Statute or the Rome Statute]; Convention on the Prevention and Punishment of Genocide 19 51  [hereafter the Genocide Convention]; International Convention on the Suppression and Punishment of the Crime of Apartheid 197 6 [hereafter the Apartheid Convention]. [15]  Preamble of the Rome Statute; Rome Statute  Article 15 (3);  Article 43 (1)(c) and (2)(c); Article 54 (1)(b) [16]  ICC, ‘Promoting Access to Justice’ < https://www.icc-cpi.int/get-involved/access-to-justice > accessed 5 November 2023. [17]  For instance, Amnesty International and Human Right Watch deal with both fields of law, yet mostly separately. [18]  Two prominent NGOs predominantly working in the field of ICL that are also supporting refugee and immigration-related issues are the Syria Justice and Accountability Centre and the European Center for Constitutional and Human Rights (ECCHR). Noteworthy is also the work of Forensic Architecture, a digital forensics and investigations research group focusing on ICL issues but also border violence and search and rescue issues, see Forensic Oceanography < https://forensic-architecture.org/category/forensic-oceanography > accessed 4 November 2023. [19]  Eirik Christopherse, ‘A few countries take responsibility for most of the world’s refugees’, Norwegian Refugee Council [hereafter NRC] (first published in November 2020, updated on 20 June 2023)   < https://www.nrc.no/shorthand/fr/a-few-countries-take-responsibility-for-most-of-the-worlds-refugees/index.html > accessed 3 November 2023. [20]   Convention relating to the Status of Refugees 1951 Article 1A . [21]   i bid. [22]   S.H.H. v. The United Kingdom   [2013] ECtHR no. 60367/10 [72]. [23]  Recognised in the non-binding Universal Declaration of Human Rights  1948 Article 14. [24]  European Parliament, ‘Guaranteeing the right to asylum’ < https://www.europarl.europa.eu/about-parliament/en/democracy-and-human-rights/fundamental-rights-in-the-eu/guaranteeing-the-right-to-asylum > accessed November 2023. [25]  Charter of Fundamental Rights of the European Union 2009 Article 18 . [26]  James C Hathaway, ‘The Architecture of the UN Refugee Convention and Protocol’ in Cathryn Costello , Michelle Foster, and Jane McAdam (eds), The Oxford Handbook of International Refugee Law  (OUP 2021) 173. [27]  Civil Liberties, Justice and Home Affairs (LIBE), ‘The Implementation of the Common European Asylum System: Study’, Directorate General for Internal Policies Policy Department C: Citizens’ Rights and Constitutional Affairs (May 2016). [28]   i bid 11; Qualification Directive 2011/95/EU. [29]   QD Articles 24-30. [30]   QD Article 10 (1)(a)-(e) . [31]   QD Article 9 (1)(a) ‘sufficiently serious by its nature or repetition’ . [32]   QD Article 9 (1)(b). [33]   QD Article 15 (a) and (b). [34]   QD Article 15 (c). [35]  For the discussion whether the violence must qualify as violations of International Humanitarian Law (IHL), see Reuven Ziegler, ‘International Humanitarian Law and Refugee Protection’ in  Costello, Foster, and McAdam (eds) (n 26) 277. [36]  LIBE (n 27) 11. [37]  Regulation (EU) No 604/2013 of the European Parliament and of the Council 2013 Doc No 32013R0604 [hereafter Dublin Regulation]. [38]  Dublin Regulation Article 3 (2) . [39]  Directive 2013/32/EU of the European Parliament and of the Council 2013 Doc No 32013L0032 [hereafter the Asylum Procedures Directive (APD)]. [40]  Directive 2013/33/EU of the European Parliament and of the Council 2013 Doc No 32013L0033 [hereafter the Reception Conditions Directive (RCD)]. [41]   RCD Article 21. [42]   i bid. [43]  Freedom from torture is an absolute right which is non-derogable: U nited Nations , ‘UN experts call for States to uphold absolute prohibition of torture in armed conflict’, Statement (26 June 2023) < https://www.ohchr.org/en/statements/2023/06/un-experts-call-states-uphold-absolute-prohibition-torture-armed-conflict > accessed 6 November 2023. [44]   Rome Statute Article 7 (1)(f); Article 8 (2)(a)(ii). [45]  History of EU asylum. [46]  In practice, this standard is not only not complied with, a reform of the current CEAS is  underway which undermines the legal standards and obligations, see for a joint statement by the ECRE members: ECRE, ‘Joint Statement: NGOs call on Member States and European Parliament: Go no Lower: Reject the Use of Legal Loopholes in EU Asylum Law Reforms’ ( ECRE , 14 July 2023)   < https://ecre.org/joint-statement-ngos-call-on-member-states-and-european-parliament-go-no-lower-reject-the-use-of-legal-loopholes-in-eu-asylum-law-reforms/ > accessed 4 November 2023. [47]   M. M. v. Minister for Justice, Equality and Law Reform and Others  [2012] CJEU Case C-277/11 [78]. [48] Human Rights Watch ‘“These Are the Crimes We Are Fleeing”: Justice for Syria in Swedish and German Courts’ ( Human Rights Watch , October 2017) 28-31  < https://www.hrw.org/sites/default/files/report_pdf/ijsyria1017_web.pdf > accessed 4 November 2023. [49]  Benjamin Duerr, ‘International crimes: Spotlight on Germany’s war crimes unit’( JusticeInfo , 10 January 2019) < https://www.justiceinfo.net/en/39936-international-crimes-spotlight-on-germany-s-war-crimes-unit.html > accessed 5 November 2023. [50]   i bid. According to this source, 1,500 leads were forwarded by immigration authorities in 2015 related to crimes committed in Syria. [51]  H uman Rights Watch (n 48) 30-31. [52]   i bid, 32ff; Trial International, ‘Make way for Justice #4: Momentum towards accountability’, Universal Jurisdiction Annual Review (March 2018 ) < https://trialinternational.org/wp-content/uploads/2018/03/UJAR-Make-way-for-Justice-2018.pdf > accessed 3 November 2023. [53]  H uman Rights Watch , ‘Q&A: First Cracks to Impunity in Syria Iraq: Refugee Crisis and Universal Jurisdiction Cases in Europe’ ( Human Rights Watch , 20 October 2016)  < https://www.hrw.org/news/2016/10/20/qa-first-cracks-impunity-syria-iraq > accessed 6 November 2023 [54]  S yria Justice and Accountability Center , ‘Refugees as Witnesses in Germany’ ( S yria Justice and Accountability Centre , 10 May 2023) < https://syriaaccountability.org/refugees-as-witnesses-in-germany/ > accessed 5 November 2023. [55]  Anna Biselli and Lea Beckmann, ‘Invading Refugees’ Phones: Digital Forms of Migration Control’ Gesellschaft für Freiheitsrechte (GFF) Study (2020) 43 . [56]  Alexandra L Kather and Johanna Groß, ‘Truly Historic: The World's First Conviction for Genocide against the Yazidi’ ( Völkerrechtsblog , 17 December 2021)  < https://voelkerrechtsblog.org/truly-historic/ > accessed 5 November 2023. [57]  Cinar  et al, ‘Implementation of the Rome Statute in the Netherlands’ (2007) 3 < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=996521 > accessed 15 December 2023. [58]  ICC, Headquarters Agreement between the International Criminal Court and the Host State 2008 Articles 6-9. [59] Wieteke Theeuwen, ‘Asylum Proceedings in the Ngudjolo Case: What Happened in the Dutch Courts?’ ( International Justice Monitor , 13 March 2015) < https://www.ijmonitor.org/2015/03/asylum-proceedings-in-the-ngudjolo-case-what-happened-in-the-dutch-courts/ > accessed 4 November 2023; Rosella Pulvirenti, ‘Undesirable and unreturnable individuals: Rethinking the International Criminal Court’s human rights obligations towards detained witnesses’ (2022) 35(2) Leiden Journal of International Law 433. [60]   i bid, 433, arguing that the ICC is also bound by the principle. [61]  1951 Geneva Convention Article 33 ; CAT Article 3 ; European Convention on Human Rights (ECHR) 1953 Article 3 . [62]  Headquarters Agreement (n 58) only considers visa-related issues and the lifting of immigration restrictions for the entry, see Articles 26 (1)(f); 27 (1)(e); 38 and 39. [63]  Amnesty International, ‘Netherlands: Do not return ICC witnesses at risk of death penalty, ill-treatment and unfair trials to the Democratic Republic of the Congo’, Public Statement Index: EUR 35/001/2014 (30 June 2014)  < https://www.amnesty.org/ar/wp-content/uploads/2023/06/eur350012014en.pdf > accessed 3 November 2023 [64]  See above (n 62). [65]  Böhler Advocaten, ‘ICC-witnesses can seek asylum in the Netherland’, Press Release (28 December 2011) < https://www.prakkendoliveira.nl/images/nieuws/2011/111228_-_press_release_icc_asylum_eng.pdf > accessed 4 November 2023. [66]   i bid. [67]  Amnesty International (n 63); Reuters,  ‘Dutch court rules on witnesses, complicating war crimes cases’ ( Reuters , 26 September 2012) < https://www.reuters.com/article/uk-congo-warcrimes-witness/dutch-court-rules-on-witnesses-complicating-war-crimes-cases-idUKBRE88P19O20120926/ > accessed 4 November 2023 ; Jennifer Easterday, ‘Witnesses Returned to DRC’, ( International Justice Monitor , 11 July 2014) < https://www.ijmonitor.org/2014/07/witnesses-returned-to-drc/ > accessed 4 November 2023. [68]  Similar issues arose or may arise at other international tribunals, see Pulvirenti (n 59) 435. [69]  Böhler Advocaten (n 65) 1. [70]  Among others: Anwar R. [2012]  Higher Regional Court Koblenz; Eyad A.   [2022] Higher Regional Court Koblenz; see also the Reports of the International, Impartial and Independent Mechanism (IIIM) mandated to investigate the most serious crimes in committed I Syria, Reports to the United Nations General Assembly < https://iiim.un.org/documents/reports-to-general-assembly/ > accessed 3 November 2023. [71]   Taha Al-J.  [2021] Higher Regional Court Frankfurt am Main. [72]  ICC, ‘Situation in the Islamic Republic of Afghanistan’, Investigation ICC-02/17 < https://www.icc-cpi.int/afghanistan > accessed 3 November 2023. [73]   Rome Statute Article 7 (1)(h) ; Amnesty International and ICJ, ‘Afghanistan: The Taliban’s War on Women: The crime against humanity of gender persecution in Afghanistan’, Research Index Number: ASA 11/6789/2023 ( Amnesty International , 25 May 2023) < https://www.amnesty.org/en/documents/asa11/6789/2023/en/ > accessed 3 November 2023. [74]  OHCHR, ‘UN report details summary executions of civilians by Russian troops in northern Ukraine’ ( OHCHR , 7 December 2022)   < https://www.ohchr.org/en/press-releases/2022/12/un-report-details-summary-executions-civilians-russian-troops-northern > a ccessed 5 November 2023; Eurojust, ‘International Centre for the Prosecution of the Crime of Aggression against Ukraine’ ( Eurojust , 2 August 2023) < https://www.eurojust.europa.eu/publication/icpa-explainer > accessed 5 November 2023 ; ICC, ‘Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova’ ( International Criminal Court , 17 March 2023)   < https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and > all accessed November 2023. [75]  The context of war is usually determined by country-of-origin information, a person fleeing war does not have to credibly substantiate the claim of war. Also, Ukrainian nationals were not part of ordinary asylum procedures, but received temporary protection in a sui generis  procedure, see Council Directive 2001/55/EC of 20 July 2001, Doc 32001L0055 [hereafter TPD]. [76]   JK and Others v. Sweden [2016] ECtHR (GC) no 59166/12  [ 96]. [77]  Qualification Directive 2011/95/EU Article 4 (4) [78]   JK and Others v. Sweden  (n 76) [ 102]. [79]  Ziegler (n 35); David Cantor and Jean-François Durieux (eds), Refuge from Inhumanity? War Refugees and International Humanitarian Law , vol 2  (Brill Nijhoff 2014). [80]  Laura Zanfrini, ‘Europe and the Refugee Crisis: A Challenge to Our Civilization’ ( United Nations: Academic Impact , 19 September 2023 ) < https://www.un.org/en/academic-impact/europe-and-refugee-crisis-challenge-our-civilization > accessed 3 November 2023. [81]  Jean-Yves Carlier, François Crépeau, and Anna Purkey, ‘From the 2015 European “Migration Crisis” to the 2018 Global Compact for Migration: A Political Transition Short on Legal Standards’ (2020) 16(1) McGill International Journal of Sustainable Development Law & Policy 37, 41; Eugenio Cusumano  and Marianne Riddervold, ‘Failing through: European migration governance across the central Mediterranean’  (2023) 49(12) Journal of Ethnic and Migration Studies 3024 , 3025. [82]  Thomas Gammeltoft-Hansen and Nikolas F Tan, ‘The End of the Deterrence Paradigm? Future Directions for Global Refugee Policy’  (2017) 5(1) Journal on Migration and Human Security  28, 43; Jonathan Kent, Kelsey P Norman, and Katherine H Tennis , ‘Changing Motivations or Capabilities? Migration Deterrence in the Global Context’, (2020) 22(4) International Studies Review 853 , 854. [83]  Among others: Ioannis Kalpouzos, ‘International Criminal Law and the Violence against Migrants’  (2020) 21(3) German Law Journal 571 ; Ioannis Kalpouzos , Itamar Mann, ‘Banal Crimes Against Humanity: The Detention of Asylum Seekers in Greece’  (2015)  16(1) Melbourne J. Int'l L.; Itamar Mann, ‘Border Violence as Crime’ (2021) 42 U. Pa. J. Int’l L. 675; Valentina Azarova, Amanda Danson Brown , and Itamar Mann, ‘The Enforced Disappearance of Migrants’(2022) 40 Boston University International Law Journal 133; Stine von Förster, Verbrechen gegen die Menschlichkeit durch Migrationskontrolle?  (Hamburg University Press 2019); Syria Justice and Accountability Center, ‘The Situation in Greece: Systematic human rights abuses against refugees on Greek territory and at reception and identification centres on the Aegean islands’, Communication to the Office of the Prosecutor of the International Criminal Court: Under Article 15 of the Rome Statute (2021); Omer Shatz and Juan Branco, ‘EU Migration Policies in the Central Mediterranean and Libya (2014-2019)’, Communication to the Office of the Prosecutor of the International Criminal Court: Under Article 15 of the Rome Statute (2019). [84]  As of November 2023, no investigation into the allegations raised by the scholars and NGOs has been initiated by the OTP except for the situation in Libya, yet with a lack of considering EU agents, see ICC, ‘Situation in Libya’, Investigation ICC-01/11 < https://www.icc-cpi.int/situations/libya > accessed 6 November 2023. [85]  Note: Refugee status is declaratory, not statutory, which means that a person is legally considered a refugee as soon as she or he fulfils the convention criteria, see: James C.Hathaway , ‘The Michigan Guidelines on Refugee Freedom of Movement’ (2017)  University of Michigan: Eighth Colloquium on Challenges in International Refugee Law General Principles No 1. [86]  Ayten Gundogdu, Rightlessness in an Age of Rights  (OUP 2014); Itamar Mann, ‘Maritime Legal Black Holes: Migration and Rightlessness in International Law’ (2018) 29(2) European Journal of International Law 347; Nikolas F Tan , Thomas Gammeltoft-Hansen, ‘A Topographical Approach to Accountability for Human Rights Violations in Migration Control ’ (2020) 21 German Law Journal 335, 340. [87]  For instance in the mandate of the UN Special Rapporteur on the promotion of truth, justice and reparation < https://www.ohchr.org/en/special-procedures/sr-truth-justice-reparation-and-non-recurrence/about-mandate > accessed 4 November 2023. [88]   Prince Hans-Adam II of Liechtenstein v. Germany   [2011] ECtHR (GC) no. 42527/98 [45]; Scordino v. Italy  (No.1) [2006] ECtHR (GC) no. 3681/97 [192]. [89]  IOM, ‘Migrants’ Access to Justice: International Standards And How The Global Compact For Safe, Orderly And Regular Migration Helps Paving The Way’ (23 March 2023) 2-3   < https://www.iom.int/sites/g/files/tmzbdl486/files/documents/access-to-justice-and-the-gcm-eng-final-march-2022.pdf > accessed 6 November 2023. [90]  Vera Shikhelman, ‘Access to Justice in The United Nations Human Rights Committee’  (2018) 39(3) Michigan Journal of International Law 453, 458; see also the full volume: Francesco Francioni (ed), Access to Justice as a Human Right  (OUP 2007). [91]  For instance, the ECtHR and the European Commission, the Inter-American Court and Commission of Human Right, and the African Court and Commission on Human and Peoples’ Rights, see Shikhelman (n 90) 462. [92]  Beth Van Schaack, ‘Domestic Courts Step Up: Justice for Syria One Case at a Time’ ( Just Security , 25 March 2019) < https://www.justsecurity.org/63289/domestic-courts-step-up-justice-for-syria-one-case-at-a-time/ > accessed 7 November 2023. [93]   i bid .   [94]  See for instance the Reform of the Code of Crimes Against International Law (CCAIL) is underway in Germany: Stefan Talmon, ‘Federal Minister of Justice Announces Major Changes to German Criminal Law and Procedure With Regard to Crimes Against International Law’ ( GPIL , 28 February 2023) < https://gpil.jura.uni-bonn.de/2023/02/federal-minister-of-justice-announces-major-changes-to-german-criminal-law-and-procedure-with-regard-to-crimes-against-international-law/ > accessed 6 November 2023. [95]  European E-Justice, ‘Victims’ rights—by country’ ( European E-Justice , last update 8 October 2020) < https://e-justice.europa.eu/171/EN/victims__rights__by_country > accessed 7 November 2023. [96]   i bid. [97]  Christian Marxen, ‘Unpacking the International Law on Reparation for Victims of Armed Conflict’ (2018) 78 ZaöRV 529 (directed at the perpetrator, not the state) describing the recent trend at 534. [98]  Kather and Groß (n 56). [99]  Françoise Tulkens, ‘The Paradoxical Relationship between Criminal Law and Human Rights’, (2011) 9(3) Journal of International Criminal Justice 595. [100]  Although on the legislative level, there are shortcomings in recognising this connection, see the Reform of the German CCAIL the possibility to join the proceedings for some crimes: Talmon (n 94). [101]  See for a comprehensive study of Syria and ISIS related crimes, SJAC, ‘Universal Jurisdiction Under Scrutiny – A Quantitative Analysis of 250+ Syrian Cases’ (April 2023) < https://syriaaccountability.org/content/files/2023/06/UJ-Report-EN.pdf > accessed 5 November 2023. [102]  One important judgment  concerned the exclusion of functional immunity of a former Afghan lieutenant, German Federal Court of Justice (BGH) [2021] 3 StR 564/19. See for an analysis and its implications, Aziz Epik, ‘Functional Immunity for Crimes under International Law before Foreign Domestic Courts: An Unequivocal Message from the German Federal Court of Justice’ (2021) 19(5)   Journal of International Criminal Justice 1263. [103]  See for the assistance of plaintiffs by NGOs in strategic litigation cases: Brianne McGonigle Leyh, ‘Using Strategic Litigation and Universal Jurisdiction to Advance Accountability for Serious International Crimes’ (2022) 16(3) International Journal of Transitional Justice 363. [104]  SJAC (n 54). [105]   i bid. [106]  Cambridge Dictionary: holistic < https://dictionary.cambridge.org/dictionary/english/holistic > The term was originally used in the medical realm. See also Oxford Reference: Overview: holistic < https://www.oxfordreference.com/display/10.1093/oi/authority.20111105101601434 > both accessed 6 November 2023. [107]  Vincent Chtail, ‘Moving towards an Integrated Approach of Refugee Law and Human Rights Law’, in Cathryn Costello, Michelle Foster, Jane McAdam (eds) , The Oxford Handbook of International Refugee Law  (n 26). [108]   i bid 210. [109]  The Nuremberg Academy addressed this relationship in the context of social work and provided invaluable guidelines which could be developed further: International Nuremberg Principles Academy, ‘Geflüchtete als potenzielle Zeuginnen und Zeugen von Völkerrechtsverbrechen: Leitlinie für die Soziale Arbeit und Betreuung in Deutschland’ (November 2019) < https://www.nurembergacademy.org/fileadmin/media/pdf/projects/Leitlinien_fuer_die_Soziale_Arbeit_und_Betreuung_in_Deutschland__Gefluechtete_als_potenzielle_Zeuginnen_und_Zeugen_von_Voelkerrechtsverbrechen-2019.pdf > accessed 7 November 2023. [110]  Amnesty International, ‘Consulting Service’ ( Amnesty International , 3 December 2018)   < https://amnesty-wuerzburg-asyl.de/beratungsangebot-english/ > ;  Hungarian Helsinki Committee, ‘guide on how to establish a refugee law clinic: updated edition’ (2019) 8 < https://www.onlinelibrary.iihl.org/wp-content/uploads/2021/04/2019-UNHCR-HHC-Guide-on-how-to-establish-a-refugee-law-clinic.pdf > all accessed 7 November 2023. [111]  For instance, Susanne Baer, ‘Chancen und Risiken Positiver Maßnahmen: Grundprobleme des Antidiskriminierungsrechts’, Heinrich Böll Stiftung (2010) 33 < https://www.boell.de/sites/default/files/Endf_Positive_Massnahmen.pdf > ; For a critique of going beyond categories in anti-discrimination law and instead applying and intersectional approach, see Cengiz Barskanmaz, ‘Framing Race and Law in Europe’ ( Völkerrechtsblog , 26 February 2018) < https://voelkerrechtsblog.org/de/framing-race-and-law-in-europe/ > all accessed November 2023.

‘Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph’. Haile Selassie, United Nations General Assembly, 4 October 1963.[1] Introduction The continuing suffering of the Sudanese people illustrates the futility of international policy-making in the absence of the political will necessary to enforce treaties. As worthy as conventions on human rights and genocide prevention are, without a robust enforcement architecture, the world’s dictators and war lords will continue to persecute and eliminate minority groups with impunity. In Sudan, the blame does not rest on the international community or the legacy of colonialism alone. Faced with human rights abuses, the African Union prioritises state sovereignty and leaders’ immunity from prosecution, and the Islamic world shows little concern for the systematic elimination of Muslims in Darfur. In addition, Khartoum skilfully manipulates American security concerns post-9/11, rendering humanitarian initiatives toothless. This article will draw on personal experience: interviewing survivors in Darfur in 2004, and founding Waging Peace, a charity supporting thousands of Sudanese refugees in the UK. The Islamist mission On 30 June 1989, the National Islamic Front (NIF) led by Field Marshall Omar Bashir overthrew the democratically elected government of Ja’afar Nimeiri, establishing the world’s second Islamist republic (after Iran). At the previous year’s election, the NIF polled less than 10%. Yet, Sudan specialist Gill Lusk says, the NIF secured power because its members had spent years rising through the ranks of Khartoum’s institutions, guided by their ideological leader, Hasan Turabi. ‘El Turabi and his colleagues had read their Lenin’, says Lusk. ‘The infiltration was patient and systematic and it included uncountable sleepers who revealed their beliefs after the 1989 coup’.[2] Lusk believes Bashir’s ‘detested regime’ stayed in power for 30 years thanks to a vast security system engineered to protect the regime and implement policy; a quarrelsome and inefficient opposition; and a divided international community. ‘A hand-stitched suit, a smile and a Western PhD go a long way with people who think Islamist fundamentalists dress only like the Taliban and shun “modernity”’.[3] Turabi’s mission was to Islamise and Arabise the ethnically and religiously diverse southern part of Sudan in particular and Africa in general.[4] Islamism is an extreme form of politicised Islam, the ideological source of Islamic terrorism, a belief that Islam is at war with the West and with insufficiently pious Muslims. According to Turkish academic Ihsan Yilmaz, ‘There are no grey areas, no multiplicity of legitimate viewpoints, no dialogue and no compromise’.[5] Maajid Nawaz, formerly a member of Hizb-ut-Tahrir, describes Islamism as ‘a modern ideology masquerading as an ancient religion’.[6] Despite Turabi’s pronouncements, Bashir assured US envoy Herman Cohen his regime ‘did not intend to force any Sudanese to accept Islam against their will’, and would restore democracy. Even as Bashir unleashed a campaign of ethnic elimination in southern Sudan that would kill two million Black Africans and non-Muslims, Cohen pursued ‘constructive engagement’ to ‘maintain a useful dialogue’.[7] In power, the NIF soon provided what US Ambassador Barbara Bodine called a ‘Holiday Inn’ for terrorists, giving refuge to Palestinian Abu Nidal, Islamic Jihad, the Revolutionary Guards from Iran, and Carlos the Jackal.[8] Shortly after the USA imposed sanctions after branding Sudan a state sponsor of terrorism, Khartoum was implicated in the 1998 bombing of US embassies in Tanzania and Nairobi.[9] In 1999, the US State Department described Sudan as a central hub for terrorist groups.[10] Its financial links with Iran were well documented, as was its role in Iran’s arms smuggling activity.[11] However, diplomatic channels remained open because Washington was under pressure from American Christian activists to resolve the long-running war between Khartoum and the non-Muslim, non-Arab ethnic groups in the southern third of Sudan. Exhaustive diplomatic efforts by the US, UK, and Norway eventually culminated in the 2005 Comprehensive Peace Agreement which delivered a referendum asking southern Sudanese if they wanted to secede, the subsequent creation of South Sudan, and a flawed election in what remained of Sudan in 2010. However, the failure to grasp Bashir’s exclusionary mission set the tone until he was overthrown, and it still clouds Western policy-making. Diplomats also ignored the regional marginalisation and corruption of Khartoum’s kleptocratic elite. Conflict erupted in Darfur in early 2003, but a year later, United Nations Security Council Resolution 1547 merely called upon the parties ‘to use their influence to bring an immediate halt to the fighting in the Darfur region’, ignoring the fact that most of the ‘fighting’ was a one-sided attack on civilians by the Janjaweed and the Sudanese Armed Forces.[12] By July 2004, the UN asked the regime to disarm the Janjaweed, while possessing ample evidence it was funding and arming the militias killing its non-Arab citizens.[13] A pattern familiar from the Holocaust, Rwanda, Bosnia, Myanmar, and Xinjiang emerged: diplomats minimised the scale of the slaughter, suggested the tiny rebel groups were as guilty as the Sudanese security services, blamed ‘ancient ethnic hatreds’, and responded as if Darfur were a humanitarian disaster rather than a political problem requiring a political solution. Ignored were the public declarations of racial hatred, such as Musa Hilal, an advisor to the Sudanese Minister for Internal Affairs and a Janjaweed leader, telling his militias to ‘change the demography of Darfur and empty it of African tribes’.[14] While diplomats were negotiating the Comprehensive Peace Agreement, climate change in Darfur was driving the mainly Arab herders to claim the farmland of Black Africans. Rather than provide education and infrastructure in a region the size of France with only six miles of paved roads, Khartoum armed the Arabs. According to one Darfuri survivor, ‘I grew up with the Janjaweed. It is not the Arabs, it is the Sudanese government that makes the problem. We were friends before’.[15] After decades of marginalisation, Darfuri paramilitary groups attacked El Fasher air base on 25 April 2003. Khartoum responded with overwhelming force. In August 2004, the UN’s special rapporteur, Asma Jahangir, found the government of Sudan was ‘responsible for extrajudicial and summary executions of large numbers of people’.[16] This was confirmed by the Office of the High Commissioner for Human Rights report which described actions which may constitute war crimes and crimes against humanity.[17]In 2005, the UN heard evidence from an independent expert who reported that ‘government forces and Janjaweed had waged a systematic campaign against the unarmed civilian population in Darfur which belonged to the same tribal group as the rebels’. [18] Human Rights Watch found ‘irrefutable evidence of a Sudan government policy of systematic support for, coordination of, and impunity from prosecution granted to the “Janjaweed militias,” a policy that continues to this day’. Adjacent Arab villages are untouched after attacks on Black African ones.[19] The UN never lacked information about the slaughter in Darfur. There were 14 separate reports from UN-appointed experts at the height of the killing between 2003 and 2006. At the same time, there were five Security Council resolutions. Missing was the political will to enforce those resolutions, or mechanisms to deliver on threats to countries in breach of their obligations in international humanitarian law. The UN Security Council Resolution 1564’s commission of inquiry did not find sufficient intention to commit genocide, but recommended referral to the ICC, as did Resolution 1593 in March 2005.[20][21] When Juan Mendez, Special Advisor on the Prevention of Genocide, highlighted the situation in Darfur, his report was blocked by China, Russia and the USA.[22] Many further reports, all openly critical of the Sudan government, resulted in appeals to Khartoum for better behaviour. As Khartoum broke its promises, the Security Council appointed a sanctions committee in March 2005. It reported a year later, confidentially naming 22 Sudanese who were impeding the non-existent peace process. It took 13 months for the Security Council to publish the names of four sanctioned individuals, half of whom were from the tiny rebel groups, which hardly reflected the proportionate responsibility for death and destruction caused by the regime’s systematic aerial bombing.[23] Security Council Resolution 1556 imposed an arms embargo on the Janjaweed militia and the rebels, requesting that Khartoum disarm the Janjaweed within 30 days or face sanctions.[24] Yet, when a leaked report found Khartoum was shipping heavy weaponry into Darfur in planes disguised in UN livery, as well as bombing Black African villages, the UN apologised to Khartoum.[25] Waging Peace, the charity I founded, collected 500 drawings by Darfuri children in refugee camps in neighbouring Chad. They depict the victims with black skin, whereas the Arabs attacking them have red skin.[26] This contradicts Khartoum’s assurances to Western critics that there is no racial element to the Darfur conflict. Perversely, the Sudanese leadership’s sense of racial superiority is built on a lie: there have been centuries of intermarriage. Survivors in Darfur told Amnesty that local Arab women cheered as militiamen raped Black African women, singing, ‘the power of al-Bashir belongs to the Arabs and we kill you until the end, you Blacks, we have killed your God…You are gorillas’.[27] In 2004, in a camp outside El Geneina in West Darfur, a local woman told me the soldiers assaulting her said ‘he would dilute my inferior blood. He branded me with a hot iron to show I was a slave. He said black people were created by God for his people to use as slaves’.[28] However, President Bashir asserted that ‘it is not in the Sudanese culture or people of Darfur to rape. It doesn’t exist. We don’t have it’.[29] I have interviewed dozens of women in Bosnia and Rwanda who described the same hate speech used by their rapists. Eventually, the Security Council sent a hybrid African Union-UN peacekeeping force (UNAMID) to Darfur. However, UNAMID was hamstrung by inadequate resources, the absence of a Chapter VII Status of Forces agreement, and fear of upsetting Sudan’s elite. UNAMID soldiers told me they never had the backing of the UN bureaucrats in New York if they challenged the regime. They were perennially short on fuel and food, and Khartoum impeded access, as they did with aid groups.[30] I was told by a UN official that ‘New York needed Khartoum’s permission to keep several UN projects running undisturbed in Sudan’.[31] The majority of the killing in Darfur occurred in 2003-05, although estimates of casualties varied due to the difficulty of calculating the number of dead during a conflict in which access to a vast area was almost impossible.[32] Whatever UNAMID’s weaknesses, the moment it withdrew in June 2021, the situation deteriorated dramatically. Between January and June 2022, there was a fresh wave of displacement, adding 470,000 new Internally Displaced People (IDPs) to a total of three million (out of a Darfur population of nine million).[33] Public dissatisfaction with Bashir’s corrupt rule, which had accumulated foreign debt of $77 billion, culminated in the overthrow of the regime in 2019.[34] During the revolution, Sudan’s security services, split between the Sudanese Armed Forces (SAF) and the Rapid Support Forces (RSF, the rebranded Janjaweed) massacred an estimated 120 civilian protesters in Khartoum.[35] When Bashir quit, the SAF and RSF agreed to share power with civilians in the transition administration of prime minister Abdalla Hamdok. However, in October 2021, they staged a counter-coup, installing SAF leader General Burhan in power. The transitional government’s attempts to hold members of the Bashir regime accountable for corruption and human rights abuses ended when investigators were jailed.[36] Bashir-era officials were released from prison, and thousands of Islamists joined the SAF’s ranks. Any rights women had begun to enjoy were eroded and churches were confiscated or attacked.[37] The coup leaders faced no diplomatic repercussions, being treated as the international community’s partners in the search for peace in the new Sudan. The local resistance committees and professional associations who spearheaded the ouster of Bashir were sidelined, and the men with guns drew the obvious conclusions. The RSF refused to merge with the SAF, as promised, and fighting began on 15 April 2023. It has been characterised on both sides by disregard for the thousands of civilian casualties and the suffering of millions of citizens. Both sides have targeted medics and hospitals, infrastructure, and civilian neighbourhoods with impunity. The police and security services have been absent.[38] Once the last expatriates were evacuated, international media attention vanished. Following 15 April, local RSF/Janjaweed and its proxies resumed where they left off when UNAMID arrived, ordering a full mobilisation in Darfur. Dozens of diaspora members told Waging Peace that civil leaders were being targeted, boys over the age of ten were being killed, girls between 12-17 were being raped, and bodies were used as speed bumps. Food sources were destroyed, as were pharmacies and clinics. There was no power, water, or communications. Yet, French soldiers were present 28 kilometres away, across the border in Chad.[39] The ‘wrong kind of Muslim’ It was more than regrettable for Darfur that Khartoum’s campaign of annihilation coincided with the American-led invasion of Iraq. The allies’ decision to stand back as Baghdad was looted and abuses at Abu Ghraib and in routine encounters with Iraqi civilians were cited by the Sudanese regime and its defenders as proof of the West’s anti-Muslim and anti-Arab prejudices. In 2004, an Arab League Commission of Inquiry into Darfur condemned attacks on civilians as ‘massive violations of human rights’. However, the statement was quickly removed from the League’s website.[40] Since then, members of the Arab League counsel patience, rally around Khartoum, or remain silent. In 2007, the UN Human Rights Council documented how Sudanese government forces and their proxy Janjaweed militia had committed murder, mass rape, and kidnap in Darfur. Khartoum lobbied the UN and the Organisation of the Islamic Conference to dismiss the report because the evidence was collected from the testimony of survivors in camps in Chad since Khartoum had denied access to Sudan. The UN allowed the report to be buried.[41] Commentators blamed ‘solidarity’ and fear of giving credence to Zionists much as some Western academics refrained from criticising Khartoum for fear of appearing anti-Muslim or anti-Arab.[42] According to Sudanese democracy activist Magdy el-Baghdadi, ‘Darfuris are simply the wrong kind of Muslims because they are black and African’.[43] For some, it seemed as though Darfur was a public relations disaster for the Arab and Muslim world, rather than an atrocity. Egyptian academic Gehad Auda contends, ‘Arabs always condemn Israel because it rejects UN resolutions and its army collaborates with settlers who want to take lands from their lawful owners. Yet that is exactly what is going on in Sudan right now’.[44] Turkish leader Recep Tayyip Erdogan supported fellow Islamist Bashir saying, ‘It’s not possible for a Muslim to commit genocide’.[45] However, Black African intellectuals challenge the widely held notion that because of Arab exceptionalism, racism does not exist in Arab society. Toyin Falola notes ‘the language of denial and obfuscation that has become the defining feature of Arab responses to charges of racism against blacks’. Arab claims that they are always victims ‘fails to explain why Arab media regularly refer to President Barack Obama as “N*****r Obama.” Osama bin Laden admitted, “When an Arab looks at a black African, what he sees is a slave”’.[46] Gerard Prunier argues that Egyptian snobbery contributes to Khartoum’s repeated attempts to annihilate Sudan’s non-Arab ethnic groups. ‘In the Sudan they are “Arabs”, but in the Arab world they are seen as mongrels who hardly deserve that name. They desperately strive for recognition of the “Arab” status by other Arabs, who tend to look down on them—even using the dreaded name of abd (slave) that they use for those more black than they are’.[47] Egyptian writer Mona Eltahawy comments, ‘we are racist people in Egypt and we are in deep denial about it…the suffering of Darfur goes ignored because the victims are black and because those who are creating the misery in Darfur are not Americans or Israelis and we only pay attention when America and Israel behave badly’.[48] The African Union (AU) Working in 14 African countries, I have encountered only contempt for the AU, with AU summits becoming animated solely when discussing immunity for African leaders. Nevertheless, the Global North ritualistically seeks ‘African solutions to African problems’ in Sudan. The mediation of former South African president Thabo Mbeki was not fruitful. Mbeki prioritised quiet diplomacy and African solidarity, and Sudanese diaspora interviewed by Waging Peace believed he was biased in favour of Bashir’s regime. The fact that Khartoum awarded him with one of its highest honours as the violence continued in Darfur confirmed them in this view.[49] Veteran BBC reporter Martin Plaut points out that the AU’s constitution was ‘specifically written to allow it to step in where its widely discredited predecessor—the Organisation of African Unity—had failed to act…the African Union can directly intervene in a member state in grave circumstances, namely war crimes, genocide and crimes against humanity’. Yet, Plaut found no evidence the AU was doing anything or saying anything about anything.[50] UN Impotence ‘Dans ces pays-la, un genocide, c’est pas trop important’. (‘In such countries [Rwanda], genocide is not too important’.) French President Francois Mitterrand[51] The UN’s 1948 Genocide Convention provides the means ‘to prevent and to punish’ genocide. Yet, it is the only major human rights treaty without a corresponding committee to oversee its implementation. The Convention defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such: Killing members of the group; Causing serious bodily or mental harm; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births; Forcibly transferring children to another group. The problem is the lack of will to invoke the Convention, and endless debates about the meaning of ‘specific intent’, ‘genocide’, ‘crimes against humanity’, and ‘war crimes’, made worse by pedantic academics more concerned with precise terminology than stopping mass murder.[52] It is conventional wisdom to ascribe the UN’s failure to enforce the Genocide Convention to the veto power of Russia and China on the Security Council. However, the problem goes much deeper, and would not necessarily be solved by expanding the Security Council to include nations whose leaders are reluctant to shine a spotlight on the misdeeds of others, fearing that the spotlight might one day focus on them. When the UN adopted the Responsibility to Protect (R2P) doctrine in 2005, it claimed to have learned from the slaughter in Rwanda and Bosnia.[53] It is worth revisiting those events briefly because of the echoes in Sudan. Linda Melvern has documented in detail how the UN Secretariat was warned repeatedly by rights groups, missions of inquiry, and the peacekeeping United Nations Assistance Mission for Rwanda (UNAMIR) commander, Romeo Dallaire, that violence was imminent in Rwanda. In the name of maintaining impartiality, Under-Secretary for Peacekeeping Operations, Kofi Annan, refused to let Dallaire raid Hutu arms caches or pressure the Rwandan government. The Secretariat knew about events unfolding from April onwards but failed to inform the UN Security Council. Melvern exhaustively lists the ways in which the UK and France worked to prevent Rwanda being discussed.[54] Later, Dallaire reflected that 5,500 UN soldiers could have prevented the slaughter, just by their presence.[55] In Sarajevo, the UN force prevented Bosnians crossing the airport runway to safety, confiscated evidence of war crimes from journalists, denied the siege of Sarajevo was happening, and watched as the Serbs set up torture camps.[56] As in Darfur and Rwanda, maintaining UN projects and impartiality were more important than preventing carnage, even though the projects would have been unnecessary if the Serbs had been stopped. As in Darfur, UN military commanders on the ground did not risk making decisions. By ratifying R2P, heads of government affirmed their responsibility to protect their own populations from genocide, war crimes, ethnic cleansing, and crimes against humanity, and accepted a collective responsibility to encourage and help each other uphold the commitment. They also declared their preparedness to take timely and decisive action, in accordance with the United Nations Charter, and in cooperation with relevant regional organizations, when national authorities manifestly fail to protect their populations. Yet, as UN officials celebrated R2P, it did not occur to them to apply it to the ongoing atrocities in Darfur. According to Gregory Stanton, ‘diplomats always want a peace process, misunderstanding that genocide is not conflict. It is one-sided mass murder’. The UN is paralysed by the unwillingness of countries to have their own behaviour scrutinised, he says.[57] In September 2004, US Secretary of State Colin Powell invoked the Genocide Convention. ‘Sudan is a contracting party to the Genocide Convention, and is obliged under the Convention to prevent and to punish acts of genocide’, Powell told the Senate Foreign Relations Committee: The evidence leads…the United States to the conclusion that genocide has occurred and may still be occurring in Darfur. We believe the evidence corroborates the specific intent of the perpetrators to destroy a group ‘in whole or in part’— the words of the convention. This intent may be inferred from their deliberate conduct. We believe other elements of the convention have been met as well.[58] However, Powell implied it was up to the African Union to act. Certainly, it should not have been America’s responsibility alone to police a nation six thousand miles away with whom it had no historic ties. Powell may have believed the AU would act, after so much ‘African solutions to African problems’ rhetoric. But action did not follow his unprecedented declaration. American carrots and sticks At the heart of Washington’s relationship with Khartoum is the War on Terror. A German paper alleged that Sudan was one of 66 nations used to house terror suspects, a charge denied by Bashir.[59] As the slaughter continued in Darfur, America was building its largest embassy in Africa in Khartoum to house the biggest CIA listening post outside the US, reflecting the CIA’s ‘cosy relationship with the Sudanese intelligence services’.[60] According to the State Department, commenting while Khartoum bombed the Black African population of Blue Nile and South Kordofan states, ‘Sudan has provided concrete cooperation against international terrorism’, since the September 11, 2001, terrorist strikes on New York and Washington.[61] Khartoum had detained Al-Qaeda suspects for interrogation by US agents and had turned over evidence to the US authorities.[62] In the years since, there have been no results of this cooperation made public. However, as recently as 2022, after the military coup which overthrew Hamdok’s transitional government, the US State Department continued to praise Sudan for its cooperation.[63] Sudan specialist Gill Lusk learned that the NIF ‘deluged Washington with documents, a technique familiar to lawyers—of whom the NIF possesses a disproportionate number—who want to intimidate, confuse, and delay their opponents’.[64] At the same time, President George W Bush stopped describing events in Darfur as genocide or even mentioning the issue. It was rumoured the UN removed the name of Saleh Gosh, the head of Sudan’s intelligence service, from a sealed list of 51 officials who violated international law in Darfur. A CIA jet delivered Gosh to Langley for secret meetings, and in 2006, Gosh visited London ‘on medical grounds’ to meet CIA officers. The US Assistant Secretary of State for Africa was also in London at the same time. Explaining Gosh’s presence, an unnamed British official said Gosh was in London for discussions on the Darfur peace process’.[65] US policy assumed Bashir was preferable to an unknown person or group replacing him. Envoy Princeton Lyman admitted, ‘Frankly, we do not want to see the ouster of the regime, nor regime change. We want to see the regime carrying out reform via constitutional democratic measures’.[66] The Bashir regime’s track record did not suggest there would be any such reforms. Another envoy, Scott Gration, believed that by rewarding and legitimising Bashir, his regime would stop the killing.[67] Khartoum drew the obvious conclusions, since no warnings were made good, and no sticks were employed. America also fears pushing Khartoum toward China and Russia as they consolidate their interests in Africa. However, China is entrenched in Sudan’s oil industry and Russia has secured an agreement to build a military base at Port Sudan. Meanwhile, Bashir allowed Al-Qaeda to set up clubs in Sudan’s universities.[68] The empire speaks and Khartoum trembles At times, Britain’s foreign policy has been characterised by the appeasement of strong men, a residual support for the Arab cause left over from TE Lawrence’s time, and a desire to please Washington. Politicians expressing concern about Sudan while in opposition are soon subsumed by the Foreign Office (FCO) culture once in power. When crossbench peer Lord Alton raised the violence in Darfur, he was told by the FCO that the UK ‘made clear the seriousness of our concerns’ when meeting the Sudanese foreign minister.[69] After Lord Alton and I had visited Darfur, he raised the Doctors Without Borders (MSF) report on sexual violence. The FCO minister responded, ‘we have made clear and continue to make clear to the Government of Sudan that the perpetrators must be brought to justice’.[70] Yet, since the FCO knew the perpetrators were sent by the same government, it was unlikely they would be brought to justice. Throughout Sudan’s suffering, a handful of British politicians kept Sudan on the political agenda. The peers David Alton, Caroline Cox, Glenys Kinnock, and John Sandwich deserve credit for their doggedness, as does Andrew Mitchell, and the MPs Vicky Ford and Lyn Brown more recently. New Labour in power In 2001, Tony Blair declared that if Rwanda were to happen again, Britain would have a duty to act.[71] He visited Khartoum in the autumn of 2004, telling Lord Alton, who had just returned from the killing fields of Darfur, that Bashir had promised to reign in the Janjaweed. Blair implied Bashir would not break his word to Britain’s prime minister.[72] Yet, in my experience of meeting African leaders, the UK’s toothless warnings cause mirth in their corridors of power. The generosity of Britain’s humanitarian aid to Darfur cannot be doubted, but in the early 2000s, Britain’s focus was negotiations to stop the north-south war which culminated in 2005 in the Comprehensive Peace Agreement (CPA). When I interviewed a UK official in Khartoum in October 2004, Darfur was regarded as an annoying distraction from CPA negotiations.[73] Nevertheless, the Foreign Office continued to offer noble words: ‘There can be no impunity for the terrible crimes committed in Darfur’. However, officials refused to admit which side was committing the vast majority of these crimes, as if aliens from another planet might be responsible.[74] FCO minister Chris Mullin told the All-Party Parliamentary Group on Sudan, ‘here is more than one party to the dispute. Two recent incidents of aerial bombardment are being investigated by the AU’, as if it was not clear that only one side owned planes. ‘It is true that the Government of Sudan is not upholding the Abuja Protocols, but the Sudan Liberation Movement is part of the problem’.[75]  A Foreign Office strategy familiar from Bosnia was the need to engage with the government, the author of the genocide, to prevent them ejecting UN programmes and international NGOs from Sudan. Yet, survivors in El Geneina assured me they were used to coping with very little. ‘It’s nice of you to send the aid, but what we really need is for you to take the guns away from the men who are killing us’, they said repeatedly.[76] At a meeting with NGOs concerned about the rising death toll in Darfur, the Foreign Office minister Chris Mullin quipped, ‘In diplomacy sometimes you have to work with people with whom you might not see eye to eye on everything’.[77] ‘Everything’ included no free elections, no free press, all-pervading government corruption, the routine torture of political prisoners and civic leaders, imposing Sharia on Christians, institutional racism, and the deaths of 1.9 million of its southern citizens and between 200,000 and 400,000 in Darfur.[78] In Britain, Waging Peace found ‘an official from the Sudanese embassy was seconded to the Home Office for six weeks to interview 100 people who had fled Darfur…In one case, a man claimed that he had been threatened with death by a Sudanese official during his encounter’. When one dissident, Rashid, was interviewed, the Sudanese embassy official asked him, ‘Why have you come to Britain to say that the Sudanese government and the Janjaweed have killed your family and why are you claiming asylum? I am from the Sudanese government and I will make sure that you are returned to Sudan so that the government of Sudan kills you’.[79] In 2010, Sudan held widely discredited elections which the Department for International Development (DFID)-FCO Sudan Unit hailed as ‘the first open elections’ in 20 years. Officials admitted ‘there have been a range of political and technical problems during polling’.[80] This understates the ballot box stuffing filmed and circulated on social media. It also ignores the lack of free media running up to the poll, and the intimidation, torture, and imprisonment of anyone voicing opposition to the regime.[81] It appeared that the Foreign Office treated Sudan as just another corrupt African dictatorship to be managed. As Sudan specialist Gill Lusk contends, leading members of the NIF did not spend years in the wilderness or in jail to suddenly abandon their aim of imposing their ideology on Sudan.[82] Yet, as with Hitler’s plan for Greater Germany, Milosevic’s campaign for Greater Serbia and the Interahamwe’s programme to rid Rwanda of Tutsi, the UK never confronted the ideology at play, perhaps because the British assume Sudan’s leaders are as lacking in conviction as theirs. Conservatives get down to business with the regime While in opposition, David Cameron visited Darfur. ‘I saw for myself how well practiced Sudan government officials are at offering slippery explanations for the violence their regime is perpetrating’, he said.[83] His colleague, William Hague declared, 'We believe that the time has come for the UK to make a formal policy of encouraging companies with financial ties with the Sudanese government or government-related projects, to reconsider those links’.[84]  Yet, a month after the Conservative-Liberal Democrat Coalition took office, its report, ‘Doing Business in Sudan’, skated over Sudan’s questionable political and security context, and the practical risks of working in a country where the banking and legal systems were opaque.[85] Foreign Office minister Henry Bellingham, visiting Sudan a month later, told MPs, ‘We will be candid friends of the government. We voiced our concerns about certain issues but we also said we want the relationship to be a strong one and one where UK bilateral trade will increase’.[86] He said, Britain’s new government ‘sought to encourage companies to invest more in Sudan, particularly in its oil and services sectors’.[87] In a letter to Lord Alton, Bellingham wrote, ‘I believe that by continuing to engage in a constructive and candid way with all parties in Sudan, using our historic and contemporary assets, we can achieve lasting peace and shared prosperity’. There were ‘no specific proposals for increasing trade links’, but a month later, there was a trade mission to Sudan.[88] In 2017, Sudanese foreign minister Ghandour attended a trade conference in Britain that at one point carried FCO branding.[89] Even though the US had applied sanctions on Khartoum in 1997 because it was nurturing international terrorist networks, the UK demurred: ‘We have never called for general trade sanctions against Sudan since they have the potential to disproportionately impact on disadvantaged sections of society’.[90] Yet, the UK had applied general sanctions to Saddam’s Iraq with severe effects on civilians. Britain had long-standing financial links with Khartoum, and it was common gossip among the Diaspora that ten members of Bashir’s cabinet held UK passports. The ICC Chief Prosecutor alerted the US State Department that he believed Lloyds Bank, partly owned by the UK government, ‘may have knowledge’ of where President Bashir had stashed $9 billion (10% of the country’s annual GDP) diverted from the Sudanese treasury.[91] The previous year, Lloyds was fined $350 million for breaking US sanctions on banking with entities in Sudan, Iiran, and Libya.[92] UK taxes were expended training Sudanese soldiers later implicated in human rights abuses. The UK provided a 44-week course at Sandhurst Military Academy for Sudanese soldiers, and nine police officers from Sudan visited London to learn about policing and human rights in the UK. FCO minister Lord Howell admitted, ‘There is ample evidence that the military tactics being used raise concerns that the most serious crimes of concern to the international community may be being committed’.[93] In 2015, the Independent Commission for Aid Impact concluded that Britain might be making a bad human rights situation worse by honing the skills of repressive security forces. In Sudan, a UK programme costing £850,000 was ‘terminated ahead of schedule, following violent suppression of protests in Khartoum and other cities in September 2013, in which more than 100 unarmed democracy protesters were killed’.[94] The UK continued an explicit policy of ‘strategic dialogue’ with the regime until the 2019 revolution, and then re-launched it, against advice from Waging Peace among others, four days before the October 2021 coup. It remains to be seen what form of international mediation will emerge from the SAF-RSF war. However, Britain and the EU are heavily invested in the Khartoum Process which relies on Sudan (and Libya and Tunisia) to discourage migrants from reaching the Mediterranean.[95] Accusations of enslavement, trafficking, and other human rights abuses of migrants have resulted.[96] The UK and genocide determination Lord Alton has repeatedly introduced legislation giving British courts a role in making a preliminary finding on whether a country is committing genocide, and referring the matter to the International Criminal Court (ICC) or other international bodies. This would require victims or their representatives to refer such matters to the courts and as such would empower victims to claim their rights and take ownership over the process. The UK Government did not agree with this approach despite repeating its long-standing mantra, which is not supported in law and its origin is questionable, that genocide determination is for competent courts rather than politicians. According to international law expert Ewelina Ochab, ‘The UK Government’s response is that the decision whether the acts constitute genocide or not is a matter for the “international judicial system or competent courts” and not Governments or other non-judicial bodies. This is a long-standing government policy, but it is contrary to the UK Government’s obligations under the Convention. To take decisive action to prevent genocide, the very first step must be to recognise when genocide is taking place or there is a serious risk of genocide. Indeed, this is the very analysis of the duty to prevent genocide as identified by the International Court of Justice’.[97] As a state party to the ICC, the UK government could engage on cases that it believes are genocide, including engaging the ICC or ICJ directly or engaging the UN Security Council to refer the situation to the ICC, but it chooses not to, saying it is not qualified to make this determination. The UK often claims that engaging the UN Security Council to refer the situation to the ICC is futile as China and Russia would veto referrals. However, this happened only once, in the case of Syria (where Russia had clear interests), and two other referrals were successful—Darfur and Libya. What we did When Lord Alton and I returned from Sudan, I set up the charity Waging Peace. We collected 500 children’s drawings depicting their experiences of the genocide in Darfur. These pictures were accepted by the ICC as ‘contextual overview of the situation’.[98] They were exhibited and published around the world, often twinned with children’s drawings from the Theresienstadt-Terezin concentration camp. Waging Peace made incremental progress in moving Labour and Conservative government policy on Sudan, although whenever we persuaded ministers to stand up to Bashir’s officials on minor matters, such as visas for aid workers, the regime quickly backed down. We evolved into the only charity supporting thousands of Sudanese asylum seekers in the UK, finding them lawyers, fighting the UK Home Office’s immigration rules, stopping dissidents from being deported, supporting the community to make its voice heard, and regularly submitting country guidance reports to Home Office and the FCO. As media focus shifted elsewhere, we worked with a dedicated few Parliamentarians to draft articles, questions, and speeches for MPs, Peers, and MEPs. Waging Peace’s work continues, just as the killing in Sudan persists. What can be done? The conflict that began in April 2023 is not a civil war. Civilians are for the most part not picking sides. Both the RSF and Sudanese Armed Forces wish to stop the transition to civilian rule, to maintain their economic interests and to avoid accountability for their atrocities in Darfur, Blue Nile and South Kordofan. The kleptocrats and war lords who have blighted Sudan will not hand over power unless it is the most attractive option facing them. In the short term, the international community must demand that aid arriving in Sudan is not diverted to the regime’s corrupt Humanitarian Aid Commission. Moreover, there remains reluctance to use economic leverage to inconvenience the authors of violence on both sides by freezing and seizing their considerable business empires and bank accounts, registered in Gulf states. Since the outbreak of violence in April 2023, foreign interests have supplied weapons and warriors to both sides. The RSF’s highly lucrative gold extraction business has sustained the violence, while boosting Russia’s reserves. However, Western countries selling weapons to the United Arab Emirates and laundering the Emirates’ money are reluctant to ask them to stem the flow of support for the RSF. If and when the fighting between the RSF and Sudanese Armed Forces stops, a unified and coherent negotiation process must chart the future of Sudan by including the brave Sudanese civilians who toppled the Bashir regime, and the neighbourhood resistance committees who supported their communities throughout the current conflict. The international community’s short attention span stands in the way of drafting a credible roadmap to the constitutional reform necessary for lasting peace, justice, and prosperity in Sudan. Diplomats must acknowledge the continuing influence of radical Islamist ideology which will corrupt attempts to form an inclusive and lasting administration in Khartoum. Sustained international engagement is needed to establish strong institutions and mechanisms to deliver justice, acknowledging that borders may have to be redrawn to stop the slaughter in the marginalised non-Arab areas of Darfur, South Kordofan and Blue Nile. The tragedy of Sudan is reflected elsewhere in Africa: climate change provoking competition for resources, poor governance, unaccountable elites, and a population bulge of unemployable young men ripe for recruitment to militia. The international community’s myopia, greed, toothless regional bodies, and preference for quick-fix solutions condemns the continent to instability, misery, poverty, the persecution of minorities, and coups. My wake-up call came on returning from Darfur in 2004. My colleague Lord Alton and I told a packed meeting in the UK Parliament about the Sudanese survivors we had interviewed in the camps. Sitting in the front row was Khartoum’s ambassador to London. He was indifferent to the testimony of women who had been gang raped by soldiers, of babies thrown on fires, and mosques destroyed. But he was furious when we suggested President Bashir and his accomplices should have their credit cards refused, their luxury foreign real estate seized, and travel bans should prevent their shopping trips to Paris or medical treatment in London clinics. Carefully targeted personal smart sanctions have yet to be applied comprehensively against the world’s war mongers. In the case of Sudan and other corrupt regimes, the elite do not keep their assets domestically. They prefer secure places in the Global North with predictable property rules and legal systems. This entails the use of Western banks, advisors, realtors, lawyers, and accountants who can be subject to secondary sanctions. Applied carefully, it will no longer be worth the effort to serve the whims of dictators and war lord clients. If the aim is behavioural change, rather than regime change, more jurisdictions may be willing to cooperate. Existing legislation such as the Global Magnitsky Human Rights Accountability Act provide a way forward. However, fines on banks and Western enablers must be large enough to make an impact. It is encouraging that BNP Paribas was fined $8.9 billion for breaking sanctions.[99] Taking sustained action requires institutional strength and panels of experts to target the assets of war lords and dictators. Sadly, there is little sign this currently exists. But with sufficient political will, the international community could shape a different and more prosperous and peaceful world for everyone. In the meantime, the people of Sudan continue to pay the ultimate price. Rebecca Tinsley Rebecca Tinsley is a former BBC reporter who writes about Africa and human rights. After visiting Darfur in 2004, she founded Waging Peace, an NGO influencing UK policy and giving practical help to thousands of Sudanese diaspora. Her novel about Sudan, When the Stars Fall to Earth , is available in English and Arabic. [1] Haile Selassi, ‘Haile Selassie, United Nations Address (1963)’ ( YouTube , 18 June 2015) < www.youtube.com/watch?v=MDscnpF4RsI > accessed 16 November 2023. [2] Rebecca Tinsley, ‘Our Friends and Enemies in the War on Terror’ The Huffington Post (New York, 8 October 2012) < www.huffpost.com/entry/our-friends-and-enemies-i_b_1947510 > accessed 12 December 2023. [3] ibid. [4] Bankie F Bankie, ‘Arabization of Africa, and its Killing fields’ ( Free Republic , 7 March 2009) < https://freerepublic.com/focus/news/2217274/posts > accessed 16 November 2023. [5] Email from Ihsan Yilmaz to Rebecca Tinsley (6 October 2023). [6] Maajid Nawaz, ‘We must stop giving fodder to the fanatics’ The Independent (London, 7 November 2007) < www.independent.co.uk/voices/commentators/maajid-nawaz-we-must-stop-giving-fodder-to-the-fanatics-399274.html > accessed 16 November 2023. [7] Ahmed Elzobier, ‘Sudan and United States relations: Lies and deception’ Sudan Tribune  (Paris, 26 March 2013) < https://sudantribune.com/article45151/ > accessed 16 November 2023. [8] Ken Silverstein, ‘Official Pariah Sudan Valuable to America’s War on Terrorism’ Los Angeles Times  (Los Angeles, 29 April 2005) < https://archive.globalpolicy.org/empire/terrorwar/analysis/2005/0429sudan.htm > accessed 16 November 2023. [9] ‘Sudan ‘must pay’ US East African embassy attack victims’ BBC  (London, 19 May 2020) < www.bbc.co.uk/news/world-africa-52722866 > accessed 13 December 2023. [10] US Department of State, Patterns of Global Terrorism  (US Department of State, 1999, 2000) < https://1997-2001.state.gov/global/terrorism/1999report/intro.html > accessed 16 November 2023. [11] Jonathan Schanzer, ‘The Islamic Republic of Sudan’ Foreign Policy  (Washington, 10 June 2010) < https://foreignpolicy.com/2010/06/10/the-islamic-republic-of-sudan-2/ > accessed 16 November 2023. [12] United Nations Security Council, ‘Resolution 1547’ (11 June 2004) < http://unscr.com/en/resolutions/1547 > accessed 16 November 2023. [13] United Nations Security Council, ‘Resolution 1556’ (30 July 2004) < http://unscr.com/en/resolutions/1556 > accessed 16 November 2023. [14] Lydia Polgreen, ‘Over Tea, Sheik Denies Stirring Darfur’s Torment’ The New York Times  (New York, 12 June 2006) < www.nytimes.com/2006/06/12/world/africa/12darfur.html > accessed 6 October 2023. [15] Testimony given to Waging Peace, 11 June 2008. [16] United Nations, ‘Sudan: UN human rights expert expects large number of deaths in Darfur’ (UN News, 29 June 2004) < https://news.un.org/en/story/2004/06/107912 > accessed 13 December 2023. [17] Office of the United Nations High Commissioner for Human Rights, ‘Violations in Darfur may constitute war crimes, crimes against humanity, says UN rights office report’ (United Nations, 7 May 2004) < www.ohchr.org/en/press-releases/2009/10/violations-darfur-may-constitute-war-crimes-crimes-against-humanity-says-un > accessed 13 December 2023. [18] Office of the United Nations High Commissioner for Human Rights, ‘Commission hears presentation by independent expert on situation of human rights in the Sudan’ (United Nations, 8 April 2005) < www.ohchr.org/en/press-releases/2009/10/commission-hears-presentation-independent-expert-situation-human-rights > accessed 13 December 2023. [19] Human Rights Watch, Entrenching Impunity: Government Responsibility for International Crimes in Darfur (December 2005) < www.hrw.org/legacy/features/darfur/fiveyearson/report4.html#:~:text=Despite%20persistent%20Sudanese%20government%20characterization%20of%20the%20Darfur,militias%2C”%20a%20policy%20that%20continues%20to%20this%20day > accessed 16 November 2023. [20] Office of the United Nations High Commissioner for Human Rights, ‘Report to the International Commission of Inquiry on Darfur to the United Nations Secretary-General’ (Reliefweb, 25 February 2005) < https://reliefweb.int/report/sudan/report-international-commission-inquiry-darfur-united-nations-secretary-general > accessed 13 December 2023. [21] United Nations Security Council, ‘Security Council Refers Situation in Darfur, Sudan, to prosecutor of international criminal’ (Security Council Resolution 1593, 31 March 2005) < http://press.un.org/en/2005/sc8351.doc.htm > accessed 16 November 2023. [22] United Nations, ‘Situation in Darfur, Sudan is worsening, UN genocide expert warns’ (UN News, 10 October 2005) < https://news.un.org/en/story/2005/10/156062 > accessed 13 December 2023; Meeting with Juan Mendez, Genocide Prevention All Party Parliamentary Group (26 October 2005). [23] The New Humanitarian, ‘Security Council imposes sanctions over Darfur atrocities’ (Nairobi, 26 April 2006) < www.thenewhumanitarian.org/news/2006/04/26/security-council-imposes-sanctions-over-darfur-atrocities > accessed 13 December 2023. [24] United Nations Security Council (n 13). [25] ‘UN apologises to Sudan over report leaking– newspaper’ Sudan Tribune (Paris, 5 May 2007) < https://sudantribune.com/article22029/ > accessed 6 October 2023. [26] ‘The Childrens Drawings’  Waging Peace  < https://wagingpeace.info/our-work/the-childrens-drawings/ > accessed 6 October 2023. [27] Amnesty International, Sudan: Darfur: Rape as a weapon of war: sexual violence and its consequences  (26 March 2011) < www.amnestyusa.org/reports/sudan-darfur-rape-as-a-weapon-of-war-sexual-violence-and-its-consequences/ > accessed 16 November 2023. [28] Survivors’ Testimony from Darfur to Rebecca Tinsley (3-4 October 2004). [29] Ann Curry, ‘Sudan’s al-Bashir denies role in Darfur violence’ NBC News  (New York, 19 March 2007) < www.nbcnews.com/id/wbna17691868 > accessed 13 December 2023. [30] Rebecca Tinsley, interview with UNAMID soldiers in Kigali (Rwanda, March 2014). [31] Rebecca Tinsley interview with Aicha Elbasri (2010). [32] Russel Smith, ‘How many have died in Darfur?’ BBC News  (London, 16 February 2005) < http://news.bbc.co.uk/1/hi/world/africa/4268733.stm > accessed 13 December 2023. [33] All Party Parliamentary Group on Sudan and South Sudan, Genocide: all over again in Darfur?  (April 2023) < https://drive.google.com/file/d/1cI2LmXRdwBdWR8OtZIN9Jnws8gXI0U5c/view > accessed 16 November 2023. [34] CEIC Data, ‘Sudan External Debt’ (2022) < www.ceicdata.com/en/indicator/sudan/external-debt > accessed 13 December 2023. [35] Human Rights Watch, ‘“They were shouting kill ‘them’”’ (17 November 2019) < www.hrw.org/report/2019/11/18/they-were-shouting-kill-them/sudans-violent-crackdown-protesters-khartoum > accessed 16 November 2023. [36] Africa Centre for Justice and Peace Studies, ‘Sudan Coup Update’ (April 2022) < http://www.acjps.org/wp-content/uploads/2022/03/Click-Here-.pdf > accessed 16 November 2023. [37] Zeinab M Salih, ‘Protests in Sudan after alleged gang-rape of young woman by security forces’  Guardian  (London, 16 March 2022) < www.theguardian.com/global-development/2022/mar/16/protests-in-sudan-after-alleged-gang-rape-of-young-woman-by-security-forces > accessed 16 November 2023; Rebecca Tinsley, interview with Butrus Badawi Ali Komi (March 2022). [38] Human Rights Watch, ‘Sudan: Explosive weapons harming civilians’ (4 May 2023) < www.hrw.org/news/2023/05/04/sudan-explosive-weapons-harming-civilians#:~:text=%28Nairobi%2C%20May%204%2C%202023%29%20–%20The%20two%20warring,to%20basic%20necessities%2C%20Human%20Rights%20Watch%20said%20today > accessed 16 November 2023. [39] Waging Peace meeting with 100 members of Darfuri diaspora (London, 18 June 2023). [40] Nadim Hasbani, ‘About the Arab stance vis-à-vis Darfur’ (International Crisis Group, 21 March 2007) < www.crisisgroup.org/africa/horn-africa/sudan/about-arab-stance-vis-vis-darfur > accessed 16 November 2023. [41] Joanna Weschler, ‘The Gap between narratives and practices: UN responses to the Darfur crisis’ (FRIDE, March 2010) < www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/UN_Responses_Darfur.pdf > accessed 13 December 2023 [42] Magdy El-Baghdady, ‘Why is the Arab League silent about Darfur?’ The New Statesman (London, 16 November 2012) < www.newstatesman.com/politics/2012/11/why-arab-league-silent-about-darfur > accessed 13 December 2023. [43] ibid. [44] Quoted by Cam McGrath, ‘Arab League Failing Over Darfur’ Global Policy Forum (New York, 21 August 2004) < https://archive.globalpolicy.org/security/issues/sudan/2004/0821aleague.htm > accessed 6 October 2023. [45] Quoted by Staff Asbarez, ‘Erdogan defends Bashir, says Muslims incapable of genocide’ Asbarez Armenian News  (Los Angeles, 9 November 2009) < https://asbarez.com/erdogan-defends-al-bashir-says-muslims-incapable-of-genocide/ > accessed 16 November 2023. [46] Email from Toyin Falola to Rebecca Tinsley (10 October 2023). [47] Gerard Prunier, Darfur: the Ambiguous Genocide  (Cornell University Press 2005) quoted by Heather Sharkey, ‘Arab Identity and Ideology in Sudan: The Politics of Language, Ethnicity and Race’ (2008) 107(426) African Affairs 21-43. [48] Mona Eltahawy, ‘The Arab World’s Dirty Secret’ The New York Times  (New York, 10 December 2008) < www.nytimes.com/2008/12/10/opinion/10iht-edeltahawy.1.18556273.html > accessed 16 November 2023. [49] South African Department of Foreign Affairs, ‘Joint communique of the official visit to the Republic of the Sudan by his Excellency President Thabo Mbeki, 30 December 2004 to 2 January 2005’ (2008) < https://web.archive.org/web/20080103023445/http://www.thepresidency.gov.za/show.asp?type=pr&include=president%2Fpr%2F2005%2Fpr0102.htm > accessed 13 December 2023. [50] Martin Plaut, ‘Why is the African Union still failing its people on peace and security?’ African Arguments  (1 September 2014) < https://africanarguments.org/2014/01/why-is-the-african-union-still-failing-its-people-on-peace-and-security-by-martin-plaut/ > accessed 16 November 2023. [51] Patrick de Saint-Exupery, ‘Mitterrand a-t-il declare a propos du Rwanda que “dans ces pays-la, un genocide, c’est pas important”?’  Liberation  (12 January 1998) < www.liberation.fr/checknews/mitterrand-a-t-il-declare-a-propos-du-rwanda-que-dans-ces-pays-la-un-genocide-cest-pas-trop-important-20210511_OYT7FG6DL5AVXJN3EMTLOMH3OE/ > accessed 13 December 2023. [52] United Nations, ‘Convention of the prevention and punishment of the Crime of Genocide’ (12 January 1951) < www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf > accessed 13 December 2023. [53] United Nations, ‘Responsibility to Protect’ (2005) < www.un.org/en/genocideprevention/about-responsibility-to-protect.shtml > accessed 13 December 2023. [54] Linda Melvern, A People Betrayed (Verso 2000); Linda Melvern, Conspiracy to Murder: The Rwandan Genocide  (Verso 2006). [55] Romeo Dallaire, Shake Hands with the Devil  (Random House Canada 2003). [56] Adam Lebor, Complicity with Evil  (Yale University Press 2006). [57] Email from Gregory Stanton to Rebecca Tinsley (12 December 2023). [58] US Department of State Archive, ‘The Crisis in Darfur’ (Washington, 9 September 2004) < https://2001-2009.state.gov/secretary/former/powell/remarks/36042.htm > accessed 13 December 2023. [59] ‘Sudan Served as a Hub for Receiving Al-Qaeda Suspects Nabbed by CIA’ Sudan Tribune (5 February 2013) < https://sudantribune.com/article44615/ > accessed 16 November 2023. [60] ‘Glittering towers in a war zone’ The Economist  (London, 7 December 2006) < https://emea01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.economist.com%2Fspecial%2F2006%2F12%2F07%2Fglittering-towers-in-a-war-zone&data=05%7C01%7C%7Cfaf9b9d06a0b4250769408dbc8c871d2%7C84df9e7fe9f640afb435aaaaaaaaaaaa%7C1%7C0%7C638324535452760567%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=e6GIk2Bqx5E4ruasWA0VtzMpJaj6gugGc5kHlaOh%2Fi8%3D&reserved=0 > accessed 16 November 2023. [61] U.S. Embassy in Sudan, ‘U.S. -Sudan Relations’ (2023) < https://sd.usembassy.gov/our-relationship/policy-history/us-sudan-relations/ > accessed 13 December 2023. [62] Ken Silverstein, ‘Official Pariah Sudan Valuable’ Los Angeles Times  (Los Angeles, 29 April 2005) < https://archive.globalpolicy.org/empire/terrorwar/analysis/2005/0429sudan.htm > accessed 16 November 2023. [63] U.S. Department of State, ‘Country Reports on Terrorism 2022: Sudan’ (Bureau of Counterterrorism 2022) < www.state.gov/reports/country-reports-on-terrorism-2022/sudan > accessed 12 December 2023. [64] Gill Lusk, ‘Conning the West in a hand-stitched suit’ (Parliamentary Brief October 2004). [65] Peter Beaumont, ‘Darfur terror chief slips into Britain’ Guardian  (London 12 March 2006) < www.theguardian.com/world/2006/mar/12/politics.sudan > accessed 12 December 2023. [66] Princeton Lyman, quoted in interview in Asharq Al-Awsat, ‘Asharq Al-Awsat talks to US Special Envoy to Sudan Princeton Lyman’(3 December 2011) < https://eng-archive.aawsat.com/theaawsat/features/asharq-al-awsat-talks-to-us-special-envoy-to-sudan-princeton-lyman > accessed 16 November 2023. [67] Scott Gration, quoted in ‘The Ingratiator’ The New Republic  (Washington, 5 November 2009) < https://newrepublic.com/article/70919/the-ingratiator > accessed 16 November 2023. [68] ‘Al-Qaeda announces formation of its student wing in top Sudan university’ Sudan Tribune  (Paris, 10 January 2013) < https://sudantribune.com/article44368/ > accessed 16 November 2023. [69] Baroness Crawley, ‘Sudan: Darfur’ (House of Lords, Hansard, 20 May 2004) < https://hansard.parliament.uk/Lords/2004-05-20/debates/4bb1e112-33be-4036-952c-119d509ae183/SudanDarfur > accessed 16 November 2023. [70] Baroness Symonds (House of Lords, Hansard, 6 April 2005) < https://publications.parliament.uk/pa/ld200405/ldhansrd/vo050406/text/50406w03.htm > accessed 16 November 2023. [71] Nyta Mann , ‘ Blair's global vision’ BBC News  (London, 2 October 2001) < http://news.bbc.co.uk/1/hi/in_depth/uk_politics/2001/conferences_2001/labour/1575135.stm > accessed 16 November 2023. [72] Lord Alton in conversation with Rebecca Tinsley (November 2004). [73] Rebecca Tinsley interview with Political Officer of UK embassy in Khartoum (5 October 2004). [74] Lord Triesman letter to Louise Roland-Gosselin (Waging Peace 6 March 2007). [75] Email from Sam Burke to Rebecca Tinsley (11 February 2005). [76] Rebecca Tinsley interviews at IDP camp (El Geneina, West Darfur, 4 October 2004). [77] Chris Mullin, answer to question in IPU Room, UK Parliament (London, November 2004). [78] Freedom House, ‘Sudan’ (2023) < https://freedomhouse.org/country/sudan > accessed 16 November 2023; Transparency International, ‘Our Work In: Sudan’ (2023) < www.transparency.org/en/countries/sudan > accessed 13 December 2023; Amnesty International UK, ‘Sudan: prisoner who died in custody bore the marks of torture’ (29 October 2009) < www.amnesty.org.uk/press-releases/sudan-prisoner-who-died-custody-bore-marks-torture > accessed 13 December 2023; Barnabas Aid, ‘Editorial: Religious freedom rolled back in Sudan’ (2 August 2022) < www.barnabasaid.org/gb/news/editorial-religious-freedom-rolled-back-in-sudan/ > accessed 13 December 2023; Zeinab M Salih, ‘Viewpoint from Sudan—where black people are called slaves’ BBC News (London, 26 July 2020) < www.bbc.co.uk/news/world-africa-53147864 > accessed 16 November 2023; Office of the United Nations High Commissioner for Human Rights, ‘1.9 Million Dead from Sudan’s Civil War; More than 70,000 Deaths in 1998, Report estimates’ (Reliefweb 10 December 1998) < https://reliefweb.int/report/sudan/19-million-dead-sudans-civil-war-more-70000-deaths-1998-report-estimates > accessed 13 December 2023; Scott Straus, Making and Unmaking Nations (Cornell University Press 2015). [79] Ben Russell, ‘Sudanese officials “were allowed to interview Darfuri refugees in UK”’ The Independent  (London, 5 November 2007) < www.independent.co.uk/news/uk/politics/sudanese-officials-were-allowed-to-interview-darfuri-refugees-in-uk-398997.html > accessed 16 November 2023. [80] Letter from Matthew Jordan, DFID Sudan Unit, to Rebecca Tinsley (16 April 2010). [81] Opheera McDoom, ‘Internet video stokes Sudan poll fraud fears’ Reuters (London, 20 April 2010) < www.reuters.com/article/us-sudan-elections-fraud-idUSTRE63J3R620100420 > accessed 16 November 2023. [82] Gill Lusk, ‘Conning the West in a hand-stitched suit’ (Parliamentary Brief October 2004). [83] David Cameron, ‘We cannot remain silent in the face of this horror in Darfur’  The Independent (London, 26 November 2006) < www.independent.co.uk/voices/commentators/david-cameron-we-cannot-remain-silent-in-the-face-of-this-horror-in-darfur-425810.html > accessed 16 November 2023. [84] William Hague, Parliamentary speech (Hansard 5 June 2007) < https://hansard.parliament.uk/Commons/2007-06-05/debates/07060541000003/Darfur > accessed 16 November 2023. [85] Report removed from UK DTI website. [86] Tom Porteus, ‘UK should not put trade with Sudan ahead of human rights’ (Human Rights Watch 16 August 2010) < www.hrw.org/news/2010/08/16/uk-should-not-put-trade-sudan-ahead-human-rights > accessed 13 December 2023. [87] McDoom (n 81). [88] Letter from Henry Bellingham to Lord Alton (August 2010). [89] Hannah Summers, ‘Boris Johnson condemned for trade forum with Sudan over rights abuses’ Guardian  (London, 11 December 2017) < https://www.theguardian.com/global-development/2017/dec/11/boris-johnson-trade-forum-sudan-rights-abuses > accessed 16 November 2023. [90] Letter from Suzy Burrow, DFID-FCO Sudan Unite, to Louise Roland-Gosselin, Waging Peace (12 November 2010). [91] Afua Hirsch, ‘WikiLeaks cables: Sudanese president “stashed $9bn in UK banks”’ Guardian (London, 17 December 2010) < www.theguardian.com/world/2010/dec/17/wikileaks-sudanese-president-cash-london > accessed 16 November 2023. [92] Andrew Clark, ‘Lloyds forfeits $350m for disguising origin of funds from Iran and Sudan’ Guardian  (London, 10 January 2009) < www.theguardian.com/business/2009/jan/10/lloyds-forfeits-350m-to-us > accessed 13 December 2023. [93] Diane Taylor and David Smith, ‘UK spent millions training security forces from oppressive regimes’ Guardian  (London, 25 September 2012) < www.theguardian.com/politics/2012/sep/25/uk-millions-training-oppressive-regimes > accessed 13 December 2023. [94] Diane Taylor, ‘Sudanese refugee accuses UK of complicity in human rights abuses’ Guardian (London, 15 July 2015) < www.theguardian.com/law/2015/jul/15/sudanese-refugee-accuses-uk-complicity-rights-abuses > accessed 13 December 2023. [95] Rebecca Lowe, ‘”Deals with the devil always unravel”: the UK’s blind spot for Sudan’s abuses’ Guardian  (London, 24 April 2018) < www.theguardian.com/global-development/2018/apr/24/uk-blind-spot-sudan-human-rights-abuses > accessed 13 December 2023. [96] Francesca Mannochi, ‘Torture, rape and murder: inside Tripoli’s refugee detention camps’ Guardian (London, 3 November 2019) < www.theguardian.com/world/2019/nov/03/libya-migrants-tripoli-refugees-detention-camps > accessed 16 November 2023; Amnesty International, ‘Human Rights impacts and risks associated with the Khartoum process’ (October 2016) < www.amnesty.org/en/wp-content/uploads/2021/05/AFR5453372016ENGLISH.pdf > accessed 16 November 2023. [97] Email from Ewelina Ochab to Rebecca Tinsley (3 October 2023). [98] Letter from Luis M Ocampo, Chief Prosecutor, ICC, to Louise Roland-Gosselin, Waging Peace (24 August 2008). [99] ‘BNP Paribas to pay $9bn to settle sanctions violations’ BBC News  (London, 1 July 2014) < www.bbc.co.uk/news/business-28099694 > accessed 16 November 2023.

Gaza: Can Anyone Hear Us?[1]   In a Washington Post  article published on 16 December 2023, the reporter David Ignatius wrote:   For three days this past week, I traveled the West Bank, from the arid hills below Hebron in the south to the chalky heights of Nablus in the north. What I saw was a pattern of Israeli domination and occasional abuse that makes daily life a humiliation for many Palestinians—and could obstruct the peaceful future that Israelis and Palestinians both say they want.  Driving the roads of the West Bank is—forgive the term—a ‘two-plate’ solution. Israeli settlers with yellow license plates zoom along on a well-guarded superhighway called Route 60. Palestinians with white plates navigate small, bumpy roads. Since Oct. 7, many of the entrances to their villages have often been closed. Traveling in an Israeli taxi with a Palestinian driver, I saw some of both worlds.  I watched backups at Israeli checkpoints near Bethlehem and Nablus that were over a half-mile long and could require waits of more than two hours. The delays, indignities and outright assaults on Palestinians have become a grim routine. ‘If I’m in a yellow-plate car, does that change my blood?’ asked Samer Shalabi, the Palestinian who was my guide in the Nablus area.  My tour of the West Bank was a reality check about what’s possible ‘the day after’ the Gaza war ends. President Biden and other world leaders speak hopefully about creating a Palestinian state once Hamas is defeated. I’d love to see that happen, too. But people need to get real about the obstacles that are in front of our eyes.[2]    I was struck by this piece of reporting—well-intentioned though it was—for the absence of context and history that it reveals. Is Mr. Ignatius only now discovering the occupation and its pernicious impact on Palestinian life, the relentless oppression waged against Palestinians over nearly six decades? Can he now, finally, begin to see the context that led to the current horrific loss of Palestinian and Israeli lives?   In the more than four months since the 7 October conflict erupted, Israel has dropped over 45,000 bombs on Gaza weighing more than 65,000 tons, which is equivalent to three atomic bombs like those dropped on Hiroshima. This has resulted in a level of destruction that is ‘comparable in scale to the most devastating urban warfare in the modern period’, comparable to the bombing of Dresden during the second world war. According to Robert Pape, a University of Chicago political scientist, ‘the word “Gaza” is going to go down in history along with Dresden and other famous cities that have been bombed. What you’re seeing in Gaza is in the top 25% of the most intense punishment campaigns in history’.[3]   Between 7 October 2023 and 19 February 2024, over 29,092 Palestinians have been killed (approximately 70 percent are women and children), 69,028 injured (or 3.0 percent of Gaza’s population) and 1.7 million (out of 2.3 million or 74 percent) have been internally displaced. During the same period, there have been over 1200 Israelis killed (including foreign nationals), approximately 5,400 injured and 134 remain hostage in Gaza.[4] Conservatively, between 29-37 percent of all buildings have been damaged or destroyed[5] including over 60 percent of Gaza’s homes (over 70,000 destroyed or made uninhabitable and over 290,000 damaged) in addition to apartment buildings, water and sanitation infrastructure, factories, businesses hotels, shopping malls, theaters, mosques, and churches. Approximately 92 percent of all school buildings have been damaged (in addition to 392 educational facilities) or are used as shelters. All of Gaza’s universities have been damaged or destroyed and are no longer operational. Similarly, the number of functioning hospitals has dropped from 36 to 14 (11 are partially functional and three are running at minimal capacity).[6] By the second half of November, the World Bank estimated that ‘60 percent of Gaza’s ICT, health and education infrastructure had been destroyed [and] 70 percent of its commerce-related infrastructure’, resulting in an unemployment rate of 85 percent (given the closure of 56,000 businesses and a loss of 147,000 formal sector jobs).[7]   The northern Gaza Strip has no access to clean water and the south receives a meager water supply from one pipeline coming from Israel. By 2 January, there was a full electricity blackout throughout the Gaza Strip, which has continued.[8] The systematic destruction of Gaza’s infrastructure has led to the ‘rapid spread of infectious disease’.[9] Consequently, the World Health Organization warns that the outbreak of disease could ultimately kill more Palestinians than Israeli bombs.[10] According to Professor Devi Sridhar, the chair of global public health at the University of Edinburgh, ‘A quarter of [Gaza’s] population could die within a year due to outbreaks of disease caused by this unprecedented conflict’[11] where ‘indirect health related deaths…can outnumber direct deaths by more than 15 to 1’.[12]   The entire population of Gaza, furthermore, is at imminent risk of famine. According to the Integrated Food Security Phase Classification (IPC) assessment, the entire population of the Gaza Strip—2.3 million people—are ‘estimated to be acutely food insecure [meaning they are facing acute food shortages], while a quarter of its population faces catastrophic hunger and starvation, [which] is unprecedented. No IPC analysis has ever recorded such levels of food insecurity anywhere in the world’.[13] Furthermore, states the IPC, approximately 570,000 people—about a quarter of the population—are facing famine, which is the highest level of food insecurity ‘characterized by households experiencing an extreme lack of food, starvation and exhaustion of coping mechanisms’.[14] Of the total world population facing famine, 80 percent are found in Gaza.[15] In fact, the overwhelming majority of Gazans who were receiving and dependent on foreign assistance prior to the war ‘are now receiving much less or nothing due to the war’.[16]   Mr. Ignatius, like a growing number of observers, speaks about the ‘day after’ the war on Gaza ends. But what about understanding the ‘day before’, without which no meaningful resolution can be found. Prior to 7 October, Gaza had long been subject to a policy of isolation and containment, part of a longstanding Israeli policy that aimed to insure the separation of Gaza and the West Bank thereby precluding the establishment of a Palestinian state, Israel’s primary objective. For example, since January 1991, Gaza has been subject to some form of closure, which began by restricting the free movement of people. In the 33 years since, closure—which has never once been lifted—evolved into its most extreme form, the siege or blockade on Gaza that resulted in the collapse of Gaza’s economy.[17] The blockade, now in its 17th year, long ago produced massive unemployment, food insecurity and a situation where 70-80 percent of Gaza’s population was dependent on humanitarian assistance to feed their families. By December 2018, for example, every second person in Gaza (including over 400,000 children) lived in poverty and 68 percent were food insecure.[18] Furthermore, between 1 January 2008 and 11 September 2023, 5,364 Palestinians were killed in Gaza and 1,004 in the West Bank, most of them civilians. During roughly this same period, approximately 119 Israelis were also killed, the majority civilians.[19]   History did not begin on 7 October. Yet, despite the wealth of knowledge generated over more than half a century on the Israeli-Palestinian crisis, Israel’s policy of settler colonialism and apartheid, the oppressive nature of the occupation and its ruinous effect, Palestinians have remained unseen, nullified, and excluded. Their position has been made weaker and more irrelevant over time, failing to elicit any humane policy on the part of the international community. Why has their oppression been met, for the most part, ‘with calm uninterest and lack of remorse, reflecting, what the historian Gabriel Kolko termed the ‘absence of a greater sense of abhorrence’’?[20] So repudiated, Palestinians have failed to enter our consciousness let alone our conscience, until now when they are being slaughtered.[21] How then are we to think about Gaza, about Palestinians?   The structure of violence and the nature of violence that has characterized Israel’s 56-year-old occupation must be understood as the defining context for the horror and trauma that now engulfs Palestinians and Israelis. Says Saree Makdisi, a Professor of English at UCLA, ‘If you want the violence to stop, you must stop the conditions that produced it’.[22] This is not to excuse or justify in any way Hamas’s barbaric and criminal attack on Israeli civilians, but only to understand it.   In nearly four decades of my research on Gaza and the Palestinian-Israeli crisis, certain themes have been continuous and unyielding that speak to context and the desperate need to understand it: Gaza as exceptional: the nature of violence and quotidian acceptance of destruction; The failure of Israel and the West to connect Palestinian actions with underlying conditions of impoverishment and desperation; Imposing the indefinite or transitional as a condition of life: where the present is more desirable than the future; The permeation of loss and the waning of deterrence; Dehumanization and erasure;   and Humanity as a form of resistance.   These themes, individually and collectively, reflect certain dynamics that were present in different forms in the earliest days of my work. Over almost four decades of examination, these dynamics grew stronger and more pronounced and assumed an internal logic of their own that inexorably led to the unabated horror in Gaza. As shocking and abhorrent as the current war is, it is internally and logically consistent with Israeli policy over time, albeit its most extreme expression. I shall briefly explore each of these themes.   The ‘day before’: key themes[23]   Gaza as exceptional: The nature of violence and the quotidian acceptance of destruction   I shall begin with a story, one I have written about before, but it bears retelling. It was the summer of 1985 during my very first visit to Gaza. I was taken on a tour of the area by a woman who would become a dear friend, named Alya. As we drove along Gaza’s coastal road, I saw an elderly Palestinian man standing at the shoreline with some boxes of oranges next to him. I was puzzled by this and asked Alya to stop the car. One by one, the elderly Palestinian took an orange and threw it into the sea. His was not an action of playfulness but of pain and regret. His movements were slow and labored as if the weight of each orange was more than he could bear. Not understanding what I was seeing, I asked Alya why he was doing this and she explained that he was prevented from exporting his oranges to Israel and rather than watch them rot in his orchards, the old man chose to cast them into the sea. I have never forgotten this scene, so long ago, and the impact it had on me.   One of the most striking aspects of the occupation during my early encounter with it was its everyday, unremarkable nature. ‘For Palestinians, occupation was the ordinary—a way of life that had to be lived defensively without recourse or appeal, without protection or choice, largely absent of accountability, predictability, rationality, or control. Furthermore, the distortion of Palestinian life remained unquestioned by those beyond it for whom the realities of occupation were wholly unknown. What was for Palestinians a narrative of crisis, of territorial dispossession and displacement, was for others an example of benign and legitimate control. It is this absence of context and its continued mystification that my research has always sought to redress’.[24]   A question that has remained unasked since my first encounter with the occupation is ‘What constitutes violence in the Palestinian context?’ The pressures on Gaza’s population have been immense and unrelenting and include high levels of unemployment and impoverishment, considerable infrastructural damage and destruction, and environmental degradation—the latter a problem that has presently assumed new levels of danger both for Gaza and beyond.[25] In this regard, violence in Gaza is not only or even primarily defined in military terms but in prosaic ones: not having enough clean water and electricity, the struggle to find a job and feed one’s children, reaching a hospital, or obtain needed medicines.   And within this construct should humanitarianism—the policy of keeping Gaza’s people fed through subventions—be considered a form of violence or at the very least, a double-edged sword? Is it ethical to keep people alive while they are being impoverished and killed, the same philosophy now (and still) underlying the call for a ‘humanitarian pause’ in the current war? By operating in an environment where the emergency is not temporary but permanent—a condition that is more obvious since 7 October but which long preceded it—and through the aid provided by the humanitarian community, which has clearly been needed, the occupier is able to continue oppression. Within this construct, Palestinians have been reduced from a people with political and national rights to a humanitarian problem—a process that has a long history in Palestine. In this way, aid creates dependency, facilitating and empowering Israeli violations, absolving Israel, in effect, of any responsibility and accountability for its actions. This lack of accountability also strikingly applies to the international community.   In 2019, Michael Lynk, who was then the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, wrote:   The…Israeli occupation of the Palestinian territory—Gaza and the West Bank, including East Jerusalem—is a bitter illustration of the absence of international accountability in the face of the systemic violations of Palestinian rights under human rights and humanitarian law…Israel, a relatively small country in terms of geography and population and with a particular dependence on the international community for both trade and investment and diplomatic cooperation, could not have sustained such a prolonged and repressive occupation in clear violation of international law without the active support and malign neglect of many in the industrialized world. While the international community has issued numerous resolutions and declarations critical of the unending occupation by Israel and its steady designs for annexation, such criticisms have rarely been matched with any meaningful consequences… It is therefore necessary to ask whether it is simply to be accepted that, with this occupation, international law is closer to power than it is to justice. [26]   (emphasis mine)   The question posed by Mr Lynk was based on decades of inaction on the part of the international, primarily Western, order that saw fit to legitimize Israel’s occupation as long as there was no accepted agreement to end it. A compliant and complicit donor community—notably the US and the EU—has consistently supported Israeli policy, including its most damaging expressions. The occupation long ago became normalized, which was the intent of the now-discredited Oslo process. As such, Oslo did not represent a watershed event that many believed would lead to the end of the occupation; rather, Oslo did the opposite. It reduced the Palestinian struggle from a national movement to one focused solely on the occupation of the Gaza Strip and West Bank (and on a state-building process), where East Jerusalem was effectively removed as part of the occupied territories. Perhaps most important was the absence in any of the Oslo agreements of any mention of Palestinian rights—freedom of movement, residence, religion, family reunification—including the inalienable right to self-determination or return. Oslo transformed the occupation from a political and legal issue with international significance into a local struggle over market access and worker permits. If anything, under the Oslo process, the occupation became invisible because it became so normal.   Oslo made it possible for Israel—with almost unquestioned American support—to argue that it was working toward ending the occupation, while pursuing policies that would ensure Israel’s continued presence and eliminate the emergence of a viable Palestinian state and economy on land Israel wished to claim as its own—always Israel’s primary objective.[27] The most damaging of Oslo’s policies include: the near-total separation of the West Bank and Gaza, the isolation of Gaza, the internal fragmentation of the West Bank and seizure of the majority of the land by Israel, and the provision of aid largely—and in the case of Gaza, almost exclusively—for humanitarian relief. In this way, foreign assistance was designed to mitigate the damaging impact on the economy rather than repair it. This is why, in part, despite having received $38 billion in aid from 1994-2018 (according to the World Bank), the Palestinian economy remained debilitated.[28] Contributing to the damage imposed by external powers are internal forces. The ineptitude, domestic power struggles, and growing corruption of the West Bank and Gaza authorities—each incapable of ending the occupation—further contributed to the immiseration of their people.   Society in Gaza has long struggled to remain whole and humane despite the immense and largely unabated pressures imposed upon it, pressures that in the last 17 years especially have assumed new dimensions of cruelty, which have impoverished and imprisoned Gaza’s people, denying them human rights and the possibility and dignity associated with those rights. Prior to 7 October (let alone after), Gaza found itself in an anomalous and precarious place, deprived of the ordinary and comprehensible, an imposed reality that was considered unremarkable and reasonable by those outside of it. After 56 years of occupation, 33 years of closure, and 17 years of blockade during which Gaza experienced at least eight major assaults, Palestinians saw little if any horizon or future beyond the panorama of ruination that confronted them. And to this one must add an electric fence built around Gaza in 1994 and completed two years later, the bombing of Gaza’s airport in 2001, the barring of Gazan students from West Bank universities since 2000, the banning of Gaza residents living in the West Bank since 2003, and the construction in 2021 of a six-meter-tall iron wall equipped with cameras, radar, sensors, and remote-controlled weapons system that also extends underground and out to the sea, which I might add was celebrated by Israeli officials at the time of its completion. According to Haaretz :   Israel invested nearly four billion shekels in building the underground barrier between it and the Gaza Strip…This was one of the largest engineering projects in Israeli history and took three and a half years to build. Six cement manufacturing facilities were built along the border just for this purpose. More than two million cubic meters of cement was poured dozens of meters deep in the earth, to the level of the groundwater – enough cement to ‘to build a road from Israel to Bulgaria’, the Defense Ministry said.   Israel managed to defend itself from threats from Gaza, by doing the same thing over and over again. It identified a threat from the sea and erected a barrier. It identified a threat from the ground and erected a barrier. It identified a threat from the air and erected a barrier. It identified a threat from underground and erected a barrier.[29]   Furthermore, in the nearly two decades since the blockade was imposed, Israel has argued that it was necessary as a punitive measure designed to topple the Hamas regime (and penalize the population for electing Hamas). Hence, c reating economic hardship for ordinary Palestinians in Gaza was necessary to pressure Hamas to change its behavior. Subsequently—and just before the start of the current war—the Israeli military argued something very different: that creating greater economic opportunities for Gazans, including work in Israel, would act as a form of pressure on Hamas not to take actions that would lead Israel to retaliate against the Palestinian population, thereby sacrificing whatever gains they acquired (a strategy like so many before it, that has proved shockingly wrong). Hence such work permits were meant as bargaining chips that could be revoked at any time.   To my knowledge, this 180-degree reversal has seldom been acknowledged by analysts, perhaps because it reflects a kind of ‘provisional survival’ to borrow from Judith Butler to which international donors and others have become inured. This approach was not designed by Israel to help Palestinians whom they consider disposable, but rather to affirm their unworthiness and deepen control over them through a renewed, albeit limited and brief, integrative dynamic. It also underlined the fact that Gaza’s small and devastated economy deeply depended on access to external markets both for employment and trade, which remained largely denied.   The devastation that ensued at the individual and societal level—devastation in the absence of political life and structure—was deemed necessary and justifiable by Israel and the West. Israel’s aim—until 7 October—was not the ‘death of the ‘Indigenous other’ but his nullification, along with the counter-memories and counterclaims that otherness naturally embodies. In this way, Israel…redefined the colonial distinction between self and other, the space that Israelis and Palestinians inhabit. In this redefined space, there [could] be no approach or nearing, let alone engagement…reciprocity or redemption... Palestinians [were] erased from Israel’s emotional and political landscape, precluding contestation and complexity, and restoring to Jewish Israelis a knowable, unambiguous, easily interpretable clarity’.[30]   Consequently, Butler argues, Palestinians are ‘deprived of life before they are killed, transformed into inert matter or destructive instrumentalities…To kill such a person, indeed, such a population, thus calls upon a racism that differentiates in advance who will count as a life and who will not…Under such conditions, it becomes possible to think that ending life in the name of defending life is possible, even righteous’.[31] It is this very argument that Israel now uses to justify its shredding of Gaza and the destruction of its people.   Hence, as I have argued over the course of my research, Gaza is a place where civilians do not exist, lacking identity, personality, or power; they are, in effect, faceless or ‘socially dead’, a term the historical and cultural sociologist Orlando Patterson used to describe the status of the slave whose worth derives from what the slaveowner makes of him. For too many, there are no parents in Gaza, there are no children or sisters or brothers; there are no deaths to mourn. Rather, Gaza is where the grass grows wild and must be mowed from time to time. The intention, as I have witnessed over many decades, is to distance Palestinians from the hope of an ordinary life. Of course, Palestinians reject their objectification and instrumentalization but have remained largely powerless against it. This leads to my second theme.   The failure of Israel and the West to connect Palestinian actions, both violent and non-violent, with underlying conditions of impoverishment and desperation     The failure to connect the everyday nature of oppression with Palestinian actions including military escalation—a failure to account for the lived experiences of Palestinians and the despair that is a part of it—has been consistent throughout my experience even during major assaults on Gaza. This failure—born of political interest and racism—views Palestinians as something apart, ‘illegitimate, non-subjects’, to borrow from Professor Nadera Shalhoub-Kevorkian, unable to approximate the Other as us. Deprived of any claims based on justice, Palestinians continue to remain absent in Israeli eyes. ‘The real threat, therefore, lies not in acts of Palestinian violence against Israel but in understanding that those acts are responding to injustice and dehumanisation…in making Palestinians intimate, in seeing the world through their eyes…in rejecting any endeavor that would treat them as indeterminate and notional, or consign them to abstraction’.[32]   As far as Israel and the West are concerned, the siege (including in its current genocidal form)—became an accepted if not largely unquestioned and institutionalized part of the occupation of Gaza, the way Gazans must live, and the violence—whatever form it assumes—they are expected to endure. This despite the fact that the 17-year siege,   a form of collective punishment and a clear violation of international humanitarian law, has resulted in the collapse of Gaza’s economy and the debilitation of its society, leading to various forms of protest, both peaceful and violent.   Referring to the damage inflicted during the May 2021 hostilities, the Middle East director of the International Committee of the Red Cross,   stated : ‘The damage inflicted in less than two weeks will take years, if not decades, to rebuild’.[33] Rather, social and political problems, which arise from poverty, discrimination and restriction, have consistently been described in terms of culture, religion or nationalism and treated as terrorism. Thus, Palestinians came to be viewed as   a provocation to the state, who need to be managed and undone, where misery remains unexamined and unfamiliar and disconnected from action and understanding. Within this context the struggle against Gaza, which must be understood as the struggle against Palestine, must be perpetuated no matter the cost.   Imposing the indefinite or transitional as a condition of life: where the present, though diminished, is better than the future   Perhaps one of the saddest changes I have witnessed over the last two decades in particular is a belief that the future will only bring greater suffering than the present, a belief tragically realized by the war on Gaza. This is not only due to Israeli repression but also to repression by the Hamas and Fatah authorities and the unprecedented schisms in the Palestinian political sphere. The contrast with the first Intifada and the tremendous energy of that time is striking; then people truly believed that a better future was not only possible but attainable and organized around that belief. Since then, the sense of crisis has deepened, become permanent and is always present. Hence, planning for the future not only feels impossible, it also feels disloyal. As a result, people have become increasingly unable to see the possibilities that would come with freedom, robbed of the capacity to imagine something different.   Just prior to the 7 October, one friend, a young man in his 20s, presciently told me: ‘It is a crime to think about things improving; it is a crime even to think about things staying the same’. So diminished, people live their lives with whatever they have, according to deprivation and scarcity. Having enough food, water, or electricity—had been elevated to an aspiration. Many of my friends would organize their day according to when they had access to electricity. There was no interest or energy to think about much else let alone larger political or national issues. Another colleague, a highly educated woman and mother of two young children told me that no one thinks about Jerusalem or the right-of-return anymore but about finding a job, job security, and feeding their families. One young man, a refugee, said, ‘My dream is to [have] a concrete slab as my roof. Palestinians in Gaza emphasize their existence, but it is no longer connected, as it once was, to a larger context of national liberation or national project despite their strong identification as Palestinian.   After clashes between Israel and the Palestinian Islamic Jihad in May 2023, I received an email from a friend in Gaza in which she wrote: ‘Our family and friends are all physically safe. I just feel very disoriented and drained of everything. I am sure once things calm down a little bit I will go back to normal’.  I was struck by the phrase ‘back to normal’ and asked her to explain what this means. Her response speaks powerfully to the unknown, indeterminate nature of life in Gaza:   For me personally, back to normal is about being back to a state of numbness, an intentional ignorance of our reality being under blockade and navigating the little details through which the siege manifests itself in a routine-like manner. Normal to me is a state of mental freeze. A state that gets shaken when there is aggression [because] it forces me to face the occupation in a very obvious manner, where I can’t find a technical solution to the bombardment. I feel I alternate between two states, one where the donor narrative is shaping our lives, depoliticizing our daily experience to technical and market failure, and the other one to a state of facing death in a very flagrant way. Everyone jokes about how we would respond to questions such as What is your plan in 5-years time? We joke that in a place like Gaza, we can’t plan because it can all go down the drain with the borders, closures, aggression.   Normal varies. [For students] it is normal to wake up to the same day the aggression ceased and go to school…and pretend like nothing happened. Faking that we are fine. To farmers, normal is being grateful their lands were not the ones destroyed this time and [returning to] the more subtle agriculture-related issues facing them. And of course, no normal is normal without the conversations, prediction, and general public analysis of when the next aggression will happen. So most of our decisions, like building a house, buying a piece of land, or starting a business…are left hanging.[34]   For Palestinians in Gaza, the need has not been for a homeland and the fear has not been its absence. The need is for a livelihood, clean water to drink, and safety, and the fear is that they are unattainable. According to a 2022 report by the International Committee of the Red Cross ICRC, 40 percent of Gaza’s young people had no hope of finding a job in the next 15 years.[35] I would also point out that by the year 2050—less than thirty years from now—the population of the Gaza Strip is expected to double to 4.7 million people. This translates into approximately 34,000 people per square mile living in a tiny area of depleted resources. What will Israel do then? Perhaps what it is attempting to do now, expel them to third countries.[36]   The constriction of life and the individual and collective accommodation to it have been accompanied by a detachment from politics and an absence of demands beyond those that are immediate, narrow, and basic to survival. In this regard another young friend also told me: ‘My friends and I ask ourselves: Do we know what we are passionate about? What is passion when you are in survival mode? There are no solutions, so we just talk. Do you know what it means when you cannot imagine life outside Gaza? We live with what we are given’.   The permeation of loss and the waning of deterrence   Prior to the unfolding horror in Gaza after 7 October, which no one could have foreseen, many if not most Palestinians in Gaza had reached a point, in fact, I believe it had been reached some time ago, where they felt they had little if anything left to lose. This sense was not measured materially as much as it was psychologically, where more destruction did not inflict appreciably more pain. This sense of loss was particularly pronounced following the summer 2014 assault known as Operation Protective Edge. My last trip to Gaza was in the fall of 2016 and my observations from that trip were published in an article in the London Review of Boo ks, where I asked ‘What more can Israel inflict when the loss of entire families is a daily topic of conversation?’.[37] At the time, new costs had to be created and, as mentioned above, they were job opportunities inside Israel that could be weaponized, revoked at any time.   Furthermore, states an Israeli analyst, this sense of having nothing left to lose was also true of Hamas where continued material losses reached a point of saturation with little if any added pain. In this context, Israel’s deterrence policy carried little weight, which strengthened Hamas’s strategic position, which, in part, may have contributed to the 7 October attack. In this regard, I would add that although many, perhaps most, Palestinians in Gaza criticized if not condemned Hamas’s governance and ideology, there was continuous support for its central role in the resistance when conflict occurred.   Critically and most important, even with the infusion of aid or increased levels of economic assistance to Gaza—what some donors erroneously called development assistance—little could change in the continued presence of the blockade and the occupation. Hence, when donors spoke of restoring Gaza to a state of ‘pre-conflict’ by which they mean quiet, they revealed a fundamental if not cynical misunderstanding of life in Gaza and always have. Gaza has never truly enjoyed a state without conflict or violence broadly defined. Gaza exists in a state of perpetual conflict where quiet is not the absence of conflict nor is it peace. Defining it as such as the international community does and continues to do even at present with more than 29,000 killed, introduces yet another distortion into Gaza’s lived reality.   Othering Palestinians: dehumanization and erasure If there is one theme threaded through all my experiences in Palestine, a theme that is the strongest, the most consistent and unrelenting, it is the dehumanization of Palestinians and their continuous struggle against it. This dehumanization also speaks to a form of erasure that goes beyond physical annihilation.   The critic, Northrop Frye, captured it brilliantly: ‘[T]he enemy become, not people to be defeated, but embodiments of an idea to be exterminated’.[38] In my long engagement with Gaza, I have seen the deliberate and determined disablement of this dynamic place and its people and I continue to ask myself, why?[39]   In her book, The Body in Pain , the essayist and literature professor Elaine Scarry shows that torture is a kind of discourse that teaches the pointlessness of behaving like a subject, of aspiring to anything more than mere survival.[40] Gazans continue to struggle against such debasement, which only allows minimal space for agency; yet of all the agonies they have endured, one continues to preoccupy them—a plea for human dignity. This battle among Gazans is ‘constant and unrelenting, as ferocious in its insistency as are the attempts by Israel to extinguish it. There is a voice that has always been present through all my years of research among Palestinians and it speaks these words: we, too, are mothers and fathers, sisters and brothers, professors and lawyers, fishermen and factory workers. We, too, are human beings with individual histories and stories that must be recounted by the living not only buried with the dead’.[41]   In the years prior to 7 October, some Israeli ministers called for the destruction of Gaza, with one, Ayelet Shaked, describing Palestinian children in Gaza as ‘little snakes’.[42] For Israel, innocents do not live in Gaza because, Israel has argued, Gaza’s people elected a terrorist organization to represent them. In 2011, one Israeli official stated that the goal in Gaza, as in Lebanon, is to use disproportionate force thereby ‘inflicting damage and meting out punishment to an extent that will demand long and expensive reconstruction processes’.[43] During Operation Protective Edge in 2014, for example, Professor Shalhoub-Kevorkian wrote that ‘the army supplied its soldiers with 4,800,000 bullets, 43,000 artillery shells and 39,000 tank shells’ to use in Gaza. According to the Israeli army spokesman, there were over 5,226 targets and approximately 82,201 soldiers engaged in the war. Furthermore, by the army’s own admission, it had fired around three million bullets during OPE, almost two bullets for every Gazan.[44] Hence, for Israel, there is no such thing as a civilian home, school, hospital, or playground in Gaza. Instead there are only targets—then, over 5,000 of them and all of them legitimate—’since every home is a non-home; every kindergarten, a non-kindergarten; and every hospital, a non-hospital.[45]    In 2023, Israel’s goals, as stated by its highest government officials, are even more extreme and annihilationist. The Deputy Speaker of the Knesset, for example, called for ‘erasing the Gaza Strip from the face of the earth’,[46] where, at best, Palestinians are reduced to surviving without function, making it impossible to engage in any form of meaningful action or effect needed change.   Judith Butler captures this dehumanization of the Other in asking, when is life worthy of protection from destruction? When is life grievable? She writes, ‘War is in the business of producing and reproducing precarity, sustaining populations on the edge of death, sometimes killing its members, and sometimes not; either way it produces precarity as the norm of everyday life…Palestinian life is either no life, a shadow life, or a threat to life as we know it’. The latter presents an infinite threat ‘against which a limitless ‘defense’ formulates itself’.[47]    War depends upon the differential distribution of grievability. Hence, Butler argues, ‘Ungrievable lives are those that cannot be lost, and cannot be destroyed, because they already inhabit a lost and destroyed zone; they are…from the start, already lost and destroyed, which means that when they are destroyed in war, nothing is destroyed…The rationale for the destruction is that they do not count at all’.[48]    In my recent book, Unsilencing Gaza: Reflections on Resistance , I devote two chapters to looking back at Gaza in the early days of my research. In the excerpt below, which is based on fieldnotes I kept during the first Intifada in 1988-89, when my husband and I lived in Gaza, I describe acts of humiliation by the Israeli army, which in the eyes of the soldiers, reflect lives that cannot be mourned and do not contain any purpose, function, or claim that can be recognized as human.   These acts typically involved beating and otherwise humiliating women and children especially, in public and private spaces. And while I cannot claim this was official IDF policy, I can say it was a pattern of behavior that while deviant, was deliberate, recurring throughout my time in Gaza. The most disturbing aspect of these beatings was a tacit understanding the soldiers had managed to impose on the population: we will stop beating your women and children if you beat them. I do not know how this understanding was formed. All I know is that Palestinians responded in a way that was meant to lessen harm and eliminate the possibility of greater violence.   Quoting from my fieldnotes:   Teachers told stories of how soldiers would enter classrooms and begin hitting some of the children. Knowing that the only way to get rid of the soldiers was to take over, teachers would start slapping the children until the soldiers would leave. They would then comfort the children and try to distract them with play. A friend of mine at the time, a foreign diplomat who worked for UNRWA as a Refugee Affairs Officer (RAO), told me she saw soldiers dragging a 15-year-old girl up some stairs before beating her. The Palestinian driver of her car went over to the girl and started to hit her, at which point the soldiers left…‘Why do you think this is happening?’ I asked. She answered, ‘To perpetuate a cycle of violence within Palestinian society’, thereby breaking the bonds that hold families and society together, something Palestinians clearly understood and resisted. These beatings, of course, also were intended to humiliate and demean men—all men, not just those related to the woman or child being attacked but those witnessing the assault and powerless to defend against it. The beatings were designed to instill submission more than fear, and for a time they failed to do so which is why they recurred.[49]   Thirty-five years later the situation is far worse but the goal remains unchanged: to make Palestinians believe in their own insignificance and make others believe in it as well. My friends in Gaza also argue that the question of who counts—that, in their view, Palestinians do not count as human beings—is not the only question that must be asked. The other question is how   do they count? For many of my friends Palestinians matter only as subjects on which new military technologies are being tested and sold. This is a common belief in Gaza as is the sense of abandonment, that no one—including their own leadership, both Fatah and Hamas—is accountable for Palestinian suffering. Palestinians in Gaza have long believed they are on their own. The horror unfolding in Gaza since October 7 clearly shows that they were correct in their belief.   ‘Death is never in the plural’, writes Etel Adnan in her book, Sitt Marie Rose . ‘Let’s not exaggerate its victory. It’s total enough…There are not millions of deaths. It happens millions of times that someone dies’.[50]   How do we make Gazans matter and overcome our inability to imagine them?   Humanity as a form of resistance   Throughout my years of research among Palestinians, I have always looked at the ways in which human beings rise from loss and refuse to be destroyed by it, an imperative clearly rooted in my own family’s history as survivors of the Holocaust. For my mother and father, remembering survival and rising from loss were not about horror alone, but also about kindness, altruism, and repair. For my mother especially, what remained at the center of her memory was the belief that her survival, if she were to survive, depended in part on remaining who she was by holding onto kindness, compassion, and devotion against all attempts to take them from her. Giving her bread to her sister and smuggling food to others in Auschwitz, hiding children in the Lodz ghetto from deportation to the death camps, even struggling to view her oppressors as children, was how she resisted dissolution, how she remained visible, how she preserved agency and intimacy, and struggled against spiritual erasure, how she remained human and humane. That her example found different expressions among Palestinians is not surprising but there is one experience that my husband and I had that has never left me, and one I have written about before.[51] My husband, Jay, was with me in Gaza during the first Intifada. He had just completed his residency in general surgery and volunteered in a local hospital as a trauma surgeon.   After several weeks in Gaza, Jay needed a haircut but couldn’t find a barber. A young man, Mohammed, who lived in the al-Shati refugee Camp and worked at the Marna House Hotel where we were living, somehow heard that Jay needed a barber. He told us about his friend, also named Mohammed, who was an excellent barber in Shati camp. Mohammed insisted that Jay get his hair cut by his friend. We happily accepted and Mohammed arranged it.   The barber’s home consisted of three rooms. He was married with nine children, and they were poor. Mohammed and his wife Najla welcomed us with the warmth and grace that had become so familiar. Immediately, Jay was seated and a plastic cape was wrapped around him. The haircut was moving quickly, and I remember thinking to myself our visit will be over too soon.   Suddenly, Mohammed stopped cutting. Jay and I looked at each other not understanding why. Najla then came in with a stack of large folders, which she gently placed on Jay’s lap asking if he would look at them. Jay opened the top one and pulled out an X-ray. Najla explained that these were X-rays of her children, several of whom were deaf. Then, all of her nine children filed into the room in a single row. One by one, each child sat dutifully on Jay’s lap while Najla identified the corresponding X-ray from the pile. Each of us understood that Mohammed and Najla were not seeking a miracle cure but reassurance that they had done everything they could for their children, given their meagre resources. When Jay gave them that reassurance…we could see the relief on their faces.   After the ninth child had been seen, the haircut resumed but stopped again about ten minutes later. Najla went to the door near to where we were seated and opened it. One by one, people from the camp entered the room, some with their X-rays for Jay to examine. Mohammed looked at Jay and with kindness in his voice said, ‘Not only for my family’.   As each person entered, Mohammed would introduce him or her: ‘Dr. Jay, this is my neighbor, X. He would like you to look at his X-ray’ or ‘He has a problem and wants your advice’. I went to the door where Najla was controlling the flow of traffic and looked out. I remember seeing a line of people standing along the side of the house, some holding X-rays, waiting patiently to see Jay.   Jay’s haircut did not resume until about three hours later. I do not remember how many people he saw and examined, but it was not a small number. After the last person left, Najla disappeared, and Jay returned to the barber’s chair expecting the haircut to continue. Instead, Najla brought us a tray full of food, which I kept thinking this family could not afford, and insisted we partake. After the meal, Mohammed finished cutting Jay’s hair, about four hours after we arrived. He refused to accept any money for the haircut but we insisted.   The cramped, carceral space in Shati camp in which this family lived was filled with caring, generosity and compassion, which could not be diminished by oppression. I pictured my mother with me in Mohammed and Najla’s home. She would have worried about the people who hadn’t been seen and would have done everything she could to make certain that before she left, there was enough food for all of the children.   I often think of Najla and Mohammad and their children (and now, grandchildren). Are they still alive or have they been destroyed by the Israeli bombs dropped on Shati?   Some concluding thoughts   As I write this in February 2024, the genocidal attack on Gaza continues. The war on Gaza is consistent with, albeit a far more extreme expression of, enduring and fundamentally unchanged Israeli policies, actions, and beliefs over fifty-seven years. Yet, the ferocity of the attack on Gaza must also be understood within the context of certain political dynamics that were, in recent years, gaining momentum globally and to which Israel was unalterably opposed: the fulfillment of the Palestinian national state project, the emerging reality of a one-state solution, and the idea  of Palestine as a struggle against injustice.   In a 2022 webinar, Professor Leila Farsakh argued that for the past 30 years or more Israel has tried to fragment and kill the Palestinian question but failed because it is fundamentally tied to dignity and freedom. She further argued that the Palestinian national and state project have, in their own way, fulfilled their mission, and that is to assert that Palestinians exist as a people and have a right to self-determination which is no longer questioned for the most part, having entered the global, largely Western discussion where support for a rights-based approach to resolving the Palestinian-Israeli crisis has strengthened. The question remains, self-determination in which political reality? With the effective demise of the two-state solution that was articulated in 1988 as an historical compromise, a negotiated end to the conflict that would lead to a comprehensive peace is no longer possible.   Palestinians—and Israelis—confronted a new reality—one state—characterized, ideally, by one government, one economy, one currency, one labor market, one tax system among other features.   According to Professor Farsakh, the question therefore becomes how do Palestinians reclaim their right to self-determination in a one-state reality? She argued that the one-state reality created a new space for a national dialogue among Palestinians despite a context where only a minority of Jewish Israelis support the idea of equal rights for Arabs and Jews. Furthermore, it became increasingly clear that for more and more Palestinians, it was not Jewish sovereignty that they objected to but Jewish supremacy. In one expression the Palestinian political theorist Bashir Bashir refers to an ‘egalitarian binationalism’ ‘that respects the independent nationalities of Palestinians and Israelis while binding them in an equitable polity’.[52]   In another webinar I attended not long ago one speaker asked the question: What is Palestine? Is it a place, a country, a site of desire, a site of return, an idea. He argued that the Palestinian struggle has been globalized via the internet and incorporated into other struggles like Black Lives Matter. The global feeling for Palestine, for what Palestine stands for, and for what it means to be Palestinian, speaks to the idea   of Palestine—as a struggle against injustice, for legitimacy and fairness, as defiance and steadfastness. In this way, Palestine, like Black Lives Matter, means something greater, speaking to power in larger conceptual terms such as equality and freedom.   Perhaps the most important and potentially transformative change that was taking place at the popular level was fueled by a belief that freedom—and the individual and political rights that attend it—is more important than a state. Through this discursive shift from the state to the content of the state, from national rights to human rights, Palestinians were resisting, and redefining the meaning of self-determination. This redefinition, argued Professor Farsakh, referred not only to the right of Palestinians to a political existence—Israel cannot dissolve Palestine or the right to self-determination—but also to exert their political rights alongside Israelis, a demand and a position, which was consistently rejected by the West, especially Israel.     As I have written elsewhere, ‘Israel’s struggle against the Palestinian people is fundamentally about their presence and their representation to the world. It is about diminishing if not removing their certainty by depriving them of agency and capacity and condemning them for their own privation’[53] (hence, ethnic cleansing becomes forced migration, voluntary emigration, voluntary departure, or voluntary resettlement). Consequently, the ruination inflicted on Gaza—both past and present—should be seen ‘not as a violence of  representation—where the colonizer acts as a surrogate or voice for the colonized—as much as it is a violence against  representation—of any kind where no surrogate or voice is required. Violence, once an ‘instrument of catastrophisation’,[54] as [Adi] Ophir and [Ariella] Azoulay correctly argue, is now better understood, in my view, as an instrument of invalidation, used to disqualify and annul, eradicating all sites of encounter with the other and replacing it with Nothingness’.[55] This is exactly what Israel is attempting to do in Gaza at present.   Almost a century ago, the Jewish historian of nationalism Hans Kohn left Palestine after the 1929 massacre of Jews in Hebron. Even then he ‘understood the violence as a colonial uprising’ and warned that continued Zionist colonization would only produce more violence.[56]   Palestinians want to live their lives in peace, work, take care of their children, move freely, and create. If Israel continues to deny these basic human rights and if the West continues to support Israel in that denial as it has and continues to do, there will be no resolution to the conflict and no possibility of real peace or stability in the region no matter how many Hamas militants are killed. There is a desperate need to think about new ways forward that must embrace Palestinian agency, correct the failures of the past, particularly as it regards the policies of the international community and the Palestinian leadership and political system, and engage with Israelis who continue to support the Palestinian struggle especially now.   Ultimately, the future that Palestinians and Israelis will share must emanate from a sense of belonging to the world equally, and, as Hannah Arendt argued, from   ‘a capacity to live with others precisely when there is no obvious mode of belonging’.[57] The challenge is clearly greater today than it has ever been but never so important. For as Judith Butler insists, we are all ‘implicated in a shared world’.[58] Sara Roy Sara Roy is an Associate of the Center for Middle Eastern Studies at Harvard University.  She is the author of numerous works, including her most recent book Unsilencing Gaza: Reflections on Resistance (Pluto Press, 2021) and ‘The Long War on Gaza’ ( New York Review of Books Blog , 19 December 2023). [1] This is what rescue workers cry out when trying to find people under the rubble following Israeli missile attacks. [2] David Ignatius, ‘In the West Bank, I Saw How Peace Will Require Confrontation With Israel’  Washington Post  (Washington DC, 16 December 2023 )   < https://www.washingtonpost.com/opinions/2023/12/16/west-bank-settlers-violence-peace/ > accessed 1 February 2024. [3] Jared Maslin and Saeed Shah, ‘The Ruined Landscape of Gaza After Nearly Three Months of Bombing’  Wall Street Journal  (New York, 30 December 2023) < https://www.wsj.com/world/middle-east/gaza-destruction-bombing-israel-aa528542 > accessed 1 February 2024; and ‘Israel dropped 65,000 tonnes of bombs on Gaza in 89 days’ ( Middle East Monitor , 4 January 2024) < https://www.middleeastmonitor.com/20240104-israel-dropped-65000-tonnes-of-bombs-on-gaza-in-89-days > accessed 19 February 2024. [4]  United Nations Office for the Coordination of Humanitarian Affairs OPT , ‘ Hostilities in the Gaza Strip and Israel – Reported Impact #136’ ( OCHAOPT , 19 February 2024) < https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impact-day-136 > accessed 19 February 2024. [5] David Rosenberg, ‘Prospects dim for post-war Palestinian economic recovery’ ( Al Monitor Pro , 2 January 2024) < https://www.al-monitor.com/pro/memos/prospects-dim-post-war-palestinian-economic-recovery > accessed 1 February 2024. Also see Lauren Leffer, ‘Inside the Satellite Tech Revealing Gaza’s Destruction’ ( Scientific American , 1 December 2023) < https://www.scientificamerican.com/article/inside-the-satellite-tech-revealing-gazas-destruction > accessed 1 February 2024. [6]  UNOCHA (n 4). [7]   Rosenberg (n 5). [8]  United Nations Office for the Coordination of Humanitarian Affairs OPT, ‘Electricity in the Gaza Strip’ ( OCHAOPT , n. d.) < https://www.ochaopt.org/page/gaza-strip-electricity-supply > accessed 21 February 2024; United Nations Office for the Coordination of Humanitarian Affairs OPT, ‘Hostilities in the Gaza Strip and Israel – Reported Impact/Day 87’ ( OCHAOPT , 2 January 2024) < https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-reported-impact-day-87 > accessed 1 February 2024 [9] ‘ Risk of disease spread soars in Gaza as health facilities, water and sanitation systems disrupted’  ( World Health Organization ,  8 November 2023 ) < https://www.emro.who.int/media/news/risk-of-disease-spread-soars-in-gaza-as-health-facilities-water-and-sanitation-systems-disrupted.html > accessed 1 February 2024. [10] ‘ WHO warns illness in Gaza may ultimately kill more people than Israel’s offensive ’ ( National Public Radio, 28 December 2023 ) < https://www.npr.org/2023/12/28/1221942429/warns-that-illness-may-ultimately-kill-more-people-than-israels-offensive > accessed 1 February 2024; Maya Rosen, ‘The Epidemiological War on Gaz a’  ( Jewish Currents , 5 January 2024 ) < https://jewishcurrents.org/epidemiological-war-on-gaza > accessed 1 February 2024 . [11] Devi Sridhar, ‘It’s not just bullets and bombs. I have never seen health organisations as worried as they are about disease in Gaza’ The Guardian  (London, 29 December 2023) < https://www.theguardian.com/commentisfree/2023/dec/29/health-organisations-disease-gaza-population-outbreaks-conflict > accessed 1 February 2024. [12]  Rosen (n 10). [13] Josep Borrell and Janez Lenarčič, ‘Gaza: Joint Statement by High Representative Josep Borrell and Commissioner for Crisis Management Janez Lenarcic on the risk of famine’ ( European Commission , 22 December 2023) < https://civil-protection-humanitarian-aid.ec.europa.eu/news-stories/news/gaza-joint-statement-high-representative-josep-borrell-and-commissioner-crisis-management-janez-2023-12-22_en > accessed 1 February 2024. [14]  Sharon Zhang, ‘Entire Gaza Population Facing Acute Hunger ‘Crisis’, UN-Backed Report Warns’ ( Truthout , 21 December 2023) < https://truthout.org/articles/entire-gaza-population-facing-acute-hunger-crisis-un-backed-report-warns > accessed 1 February 2024. [15] Sharon Zhang, ‘80 Percent of Global Famine Is Currently in Gaza, UN Expert Warns’ ( Truthout , 3 January 2024 ) < https://truthout.org/articles/80-percent-of-global-famine-is-currently-in-gaza-un-expert-warns > accessed 1 February 2024; Isaac Chotner, ‘Gaza is Starving’ ( The New Yorker , 3 January 2024 ) < https://www.newyorker.com/news/q-and-a/gaza-is-starving > accessed 1 February 2024 . Also see ‘Israel: Starvation Used as a Weapon of War in Gaza ’ ( Human Rights Watch , 18 December 2023) < https://www.hrw.org/news/2023/12/18/israel-starvation-used-weapon-war-gaza > accessed 1 February 2024; Leanna First-Arai, ‘Famine in Gaza Is a Culmination of Israel’s Long War on Palestine’s Food System’ ( Truthout , 10 January 2024) < https://truthout.org/articles/famine-in-gaza-is-a-culmination-of-israels-long-war-on-palestines-food-system > accessed 1 February 2024. [16] Rosenberg  (n 5). [17] Sara Roy, ‘The Long War on Gaza’ ( The New York Review of Books , 9 December 2023 ) < https://www.nybooks.com/online/2023/12/19/the-long-war-on-gaza/ > accessed 1 February 2024. [18] See Sara Roy, ‘To Unknow Palestine: A Conclusion’ in Alaa Tartir, Tariq Dana & Timothy Seidel (eds), Political Economy of Palestine: Critical, Interdisciplinary and Decolonial Perspectives  (Palgrave MacMillan 2021) 322. [19] ‘Data on Casualties’  ( United Nations Office for the Coordination of Humanitarian Affairs OPT ) < https://www.ochaopt.org/data/casualties > accessed 1 February 2024 . [20] Sara Roy, ‘I wish they would just disappear’ (2018) 21(4) Postcolonial Studies 534; Roy (n 18). [21] Roy  (n 18). [22] Saree Makdisi, ‘No Human Being Can Exist’ ( n+1 Magazine , 23 October 2023 ) < https://www.nplusonemag.com/online-only/online-only/no-human-being-can-exist > accessed 1 February 2024. [23] This section is drawn from some of my publications (cited below) including the following books: The Gaza Strip: The Political Economy of De-development, Expanded Third Edition  (Institute of Palestine Studies 2016); Failing Peace: Gaza and Palestinian-Israeli Conflic t (Pluto Press 2007); Unsilencing Gaza: Reflections on Resistance (Pluto Press 2021), and my lectures, the two most recent, my Keynote Speech at the Palestine Book Awards 2022, 7 November 2022, London, UK; and ‘Gaza: When is Life Grievable—Some Personal Reflections on Decades of Research in Palestine’, the Annual Gaza Lecture, Oxford Brookes University , 9  November 2022, Oxford, UK. [24]   See Sara Roy, Failing Peace: Gaza and the Palestinian-Israeli Conflict  (Pluto Press 2007) 4. [25] Zeinab Shukar, ‘War Has Poisoned Gaza’s Land and Water. Peace Will Require Environmental Justice’ ( Century International/The Century Foundation , 19 December 2023 ) < https://tcf.org/content/commentary/war-has-poisoned-gazas-land-and-water-peace-will-require-environmental-justice > accessed 1 February 2024 ; Nina Lakhani, ‘Emissions from Israel’s war in Gaza have ‘immense’ effect on climate catastrophe’, The Guardian (London, 9 January 2024) < https://www.theguardian.com/world/2024/jan/09/emissions-gaza-israel-hamas-war-climate-change > accessed 1 February 2024 . [26] Michael Lynk, ‘Report of the Special Rapporteur on the Situation of Human Rights in the Territories Occupied by Israel since 1967 (A/74/507)’ ( OHCHR , 21 October 2019) 10, 21 < https://www.ohchr.org/en/documents/country-reports/2019-situation-human-rights-palestinian-territories-occupied-1967 > accessed 1 February 2024 . [27] See Steven A Cook, ‘How to End the Special Relationship With Israel’ ( Foreign Policy , 20 May 2020) < https://foreignpolicy.com/2020/05/20/israel-palestine-annexation-west-bank-ending-special-relationship > accessed 1 February 2024. [28] Anas Iqtait, ‘Economic Desperation and Dependence are Driving the Palestinian Authority’s Political Decisions’ ( Middle East Institute , 2 December 2020 ) < www.mei.edu/publications/economic-desperation-and-dependence-are-driving-palestinian-authoritys-political > accessed 1 February 2024. [29] Yonatan Mendel, ‘If Israel Aspires to Life, It Must Change its Approach to Palestinians’ ( Haaretz , 15 November 202 3) < https://www.haaretz.com/israel-news/2023-11-15/ty-article-opinion/.premium/if-israel-aspires-to-life-not-death-it-must-change-its-approach-to-the-palestinians/0000018b-d290-d423-affb-f3b3aac60000 > accessed 1 February 2024 ; Yaniv Kubovich, ‘Israel Completes Vast, Billion-dollar Gaza Barrier’ ( Haaretz , 7 December 2021) < https://www.haaretz.com/israel-news/2021-12-07/ty-article/.premium/israel-completes-vast-billion-dollar-gaza-barrier/0000017f-ee2c-d4cd-af7f-ef7c25d40000 > accessed 1 February 2024.   [30] Roy  (n 20). [31]   Judith Butler, Frames of War: When is Life Grievable  (Verso 2009) xxix-xxx. [32] Roy  (n 20). [33] ‘ Statement by Fabrizio Carboni, ICRC Near and Middle East Director ’ ( International Committee of the Red Cross , 24 May 2021) < https://blogs.icrc.org/ir/en/2021/05/statement-by-fabrizio-carboni-icrc-near-and-middle-east-director/#:~:text=The%20damage%20inflicted%20in%20less,a%20real%20crisis%20of%20hop > accessed 1 February 2024. [34] Correspondence via email, May 6, 2023. [35]   ‘Gaza’s Youth: Suspended Lives, Fading Opportunities’ ( International Committee of Red Cross , 27 S eptember 2022) < https://www.icrc.org/en/document/gazas-youth-suspended-lives-fading-opportunities > accessed 1 February 2024 . [36] See for example H Scott Prosterman, ‘How Israel’s “Send Palestinians to Congo” plan Evokes British Colonial Plans to send Jews to Uganda’  ( Informed Comment , 9 January 2024) < https://www.juancole.com/2024/01/israels-palestinians-colonial.html > accessed 1 February 2024;   H Scott Prosterman,   ‘ Congo-Brazzaville Was Chosen By Israel To Host Palestinians Expelled From Gaza’ ( The African Gazette , 4 January 2024) < https://www.theafricangazette.com/2024/01/04/congo-brazzaville-was-chosen-by-israel-to-host-palestinians-expelled-from-gaza > accessed 1 February 2024. [37] Sara Roy, ‘If Israel were smart ’ ( London Review of Books , 15 J une 2017)  < https://www.lrb.co.uk/the-paper/v39/n12/sara-roy/if-israel-were-smart > accessed 1 February 2024 [38]  Roy (n 24) xxi. [39] Sara Roy, ‘Gaza: No se puede mirar – ‘One cannot look’: A Brief Reflection’ in Dina Matar and Helga Tawil-Souri (eds), Gaza as Metaphor (Hurst 2016) 220. [40] Elaine Scarry, The Body in Pain: The Making and Unmaking of the World  (Oxford University Press 1985). [41] Roy  (n 39). [42] Michael Merryman-Lotze, ‘The Historical Roots of Israel’s Genocidal Violence in Gaza’ ( Dawn/Democracy for the Arab World Now , 2 January 2024 ) < https://dawnmena.org/the-historical-roots-of-israels-genocidal-violence-in-gaza > accessed 1 February 2024; Michael Merryman-Lotze,   ‘ Israel’s new justice minister considers all Palestinians to be the enemy’  Washington Post (Washington DC, 7 May 2015) < https://www.washingtonpost.com/news/worldviews/wp/2015/05/07/israels-new-justice-minister-considers-all-palestinians-to-be-the-enemy > accessed 1 February 2024 . [43] Norman Finkelstein, ‘This Time We Went Too Far’: Truth and Consequences of the Gaza Invasion (OR Books 2011) 34; Adam Horowitz, Lizzy Ratner, and Philip Weiss (eds), The Goldstone Report: The Legacy of the Landmark Investigation of the Gaza Conflict  (Nation Books 2011) 191. [44] Nadera Shalhoub-Kevorkian, Yossi David, and Sarah Ihmoud, ‘Theologizing State Crime ’ (2016) 5(1) State Crime Journal 153. [45] Roy  (n 39). [46] Government of South Africa, ‘Application Instituting Proceedings’ ( International Court of Justice , 29 December 2023) < https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf >   accessed 1 February 2024. The quotation can be found on page 62. [47]  Butler  (n 31). [48]  ibid. [49]  Sara Roy, Unsilencing Gaza: Reflections on Resistance (Pluto Press 2021)   195-6. [50] Etel Adnan, Sitt Marie Rose: A Novel  (The Post-Apollo Press 1982). [51] Roy  (n 49) 187-9. [52]  A Dirk Moses, ‘More than Genocide’ ( The Boston Review , 14 November 2023) < https://www.bostonreview.net/articles/more-than-genocide > accessed 1 February 2024. [53] Roy  (n 49) 234. [54] Ariella Azoulay and Adi Ophir, ‘Abandoning Gaza’, in Marcelo Svirsky and Simone Bignall (eds), Agamben and Colonialism  (Edinburgh University Press 2012) 195. [55] Roy (n 20). [56]  Moses (n 52). [57] Judith Butler, ‘‘ I merely belong to them’’ ( London Review of Books , 10 May 2007)  < https://www.lrb.co.uk/the-paper/v29/n09/judith-butler/i-merely-belong-to-them > accessed 1 February 2024 . [58] Judith Butler, ‘Creating an Inhabitable World Means Dismantling Rigid Forms of Individuality’ ( Time Magazine , 21 April 2021) < https://time.com/5953396/judith-butler-safe-world-individuality > accessed 1 February 2024.

Vladimir Osechkin is a Russian-born human rights activist and founder of Gulagu.net, an NGO that documents and exposes crimes committed by Russian officials and the FSB. In November 2021, Osechkin was placed on a wanted list by the Russian state after leaking a large archive of documents, photos, and videos with hundreds of cases of rape and torture of inmates in Russian prisons directed by prison officials. Since August 2022, Osechkin has urged former Russian soldiers and dissidents to flee the country with the help of Gulagu.net, in exchange for exposing information about the war crimes committed in Ukraine. Osechkin continues to risk his life every day to gather evidence that will one day hold Russian officials accountable for their crimes. CJLPA : I would like to begin by reflecting on your background. What inspired you to become a human rights activist who was willing to risk everything in order to expose the cases of torture and rape committed by Russian officials?   VO : I grew up in a household where we struggled with money. It was a difficult time in our country. I wanted to go to university and get a job in order to give my family a better life. I thought I would be a lawyer or perhaps an officer in the prosecutor office. Then on one day at university, a crime had occurred nearby where someone was killed. The police came to our campus and when they saw me, they invited me to the police station. I did not think anything of it and thought they simply wanted to ask questions and see if I had witnessed anything. I had trust in the police. I soon began to realise it was an interrogation and after about 30 minutes of dissatisfaction with my answers, the police beat me for six hours because they wanted me to give a false confession and sign paperwork stating that I killed the man. They then arrested my close friend at university and tortured him until he signed the testimony against me claiming that I was responsible.   This was my first-hand experience of torture and made me understand the corruption in the force. I was soon after arrested and put in prison. My father was a journalist and worked with a lawyer to gather all the evidence to demonstrate it was impossible for me to be related in any manner to the murder. After presenting the case the prosecution, the prosecutor realised their mistake and released me from prison. I then returned to university, realising that actually my peers did not understand what really occurs in the system under the Russian Federation. After university, I worked very hard and created a big car business in Moscow that I would run for the next seven years. The business model was to work with other regions outside of Russia, including Europe, the US, and Japan.   Due to this international expedition, I was constantly under police watch, with the police coming to my home and asking me to pay them $50,000 every month for security. After I said no, the officials claimed that my business was corrupt and arrested me. I spent time in prison from May 2007 to June 2011. During the four years, I was beaten most days and pressured to sign pre-drafted testimonies where I admit my business was an attempt to work with the West in order to ploy against the Russian government. In my time spent in prison, I read a lot of books about the law and human rights and it made me question the system. In the last two years in prison, I thought about creating something on internet where I could open the open the eyes of the Russian people to understand what our government is capable of. Many Russian people believe that the gulags are history—something that happened 100 years ago but in present day, Russia is a democracy with normal law-abiding prisons. After seeing the torture take place in prison, it became clear I didn’t have the right to return to business. I needed to fight to protect human rights and to stop this disgusting prison system. Upon my release in 2011, I created the Gulagu.net project.   The initial idea was just to create a network for the families of prisoners, for the lawyers of the human rights activists, for the UN Commission, and for the journalists in order to open the world’s eyes. I put everything I had in Gulagu.net and worked tirelessly on this project fighting for the rights of prisoners. We became very successful in producing evidence of the corruption by broadcasting pictures and videos online and were invited to various international committees to share our knowledge.   In 2014, Putin’s administration invited me to a meeting where they proposed to me a lot of money and a big post in the Duma on the condition that I step down from Gulagu.net . I said no on three different occasions. Then, on September 2015, masked policeman entered my family’s apartment and took all my computers, the reports I prepared for the European Court of Human Rights and all documented evidence of tortures. The administration then gave me one more opportunity to step down from my organisation at to work for them. I knew I could not say yes. If I said, yes, I will be the marionette, the puppet—I be going against all my principles and destroy the mission of Gulagu.net . Russia was no longer safe for me and my family and the only choice left was to save my family’s life and freedom and continue our mission of independent investigation somewhere safer. It was a very difficult decision for me and for my wife, but the only choice we had left. I asked for political asylum in France and my family and I relocated there shortly after. CJPLA : I want to now focus a bit more on the work that you’ve been doing with Gulagu.net since you fled to France. In 2021, you were placed on a wanted list by the Russian state after leaking an archive of documents, photos, and videos with hundreds of cases of rape and torture inflicted by prisoner officers on inmates in Russia. How did you obtain this evidence and what was the process to create this report?   VO : When we released those archives and that report in 2021, it was the greatest moment in my life. When I first entered France, I thought that I it was the end of Gulagu.net because obtaining evidence would be close to impossible from another country. But that did not happen. Every month, then every week, and then every day I published something. When I revealed that I was in France, it created a new wave of insiders and people who asked for my help and gave me information about the prison systems. For example, one of the chiefs of the prison system of the Kaliningrad region came personally in France to hand me a hard disk with secret information about the prison system and evidence of torture. When I asked him why now and why he came to France personally, he said that when I worked in Moscow a lot of people thought that I was masking my human rights organisation and in actuality was working with Putin administration. They feared that if they gave me information, they would be trapped and arrested by the administration. Fleeing Russia made it clear that I truly was independent and not working with the special forces or Putin administration. I therefore obtained information from ex-officers of the prisons who previously worked with the administration.   In February 2021, I was contacted by someone living in Serbia who wrote me a letter, using a false name for his safety. The letter stated that he had present officers from the prison systems who wanted to give me important information. He proposed that we work together to publish something. He began sending me files to publish and based on the evidence I was receiving I knew it was someone who had close access, so it must have been a high-ranking officer in the prison system. He then disclosed his identity and I found out it was Sergei Saveliev that had contacted me.   He worked as the secretary of one of the prison systems. In the first two years, he worked as a normal secretary. Then, they included him in the secrets about torture. His work became to prepare the videos from the surveillance across different prisons, which he was horrified to see showed acts of torture and rape committed by the officers. After downloading the files, he had to present this information to the boss, who would then send it to the FSB or officers of the operating operative department of the prison systems in in Moscow in order to rate the prison systems. Sergei knew that what he was helping prepare contained evidence of crimes against humanity. If he spoke up, he knew he would be tortured and killed by the very same officers.   Sergei prepared his plan to escape and to leak as much secret information and evidence as he could by using his position and the access he had. When he finally prepared the disk to take, I helped him come to France we began working together to create the report to publish and to share with the media and international organisations to expose the crimes committed.   CJPLA : You have obtained significant evidence of human rights violations over the years. Have you shared this evidence with international organizations and courts? If so, to what extent have you been in collaboration? VO : When my family and I first moved to France, Gulagu.net seemed like a little project, so international organizations would not work with us. International organisations first asked for our help when I was in Russia, at a time when I held the position as the Chief of the Commission who observes human rights. But, when I left Russia, Putin’s administration created a wave of publicity in the media’s framing me as Russia’s enemy and destroying my reputation.   For many years I worked alone, but in 2019, an organization called the Free Russia Foundation invited me to the European Parliament in Strasbourg to present my report about the documented human rights violations. I presented my findings setting out the systematic torture, specifying the inhumane methods used by Russian state officials. This information was then published and my organisation was cited when the European Parliament initiated conversations with Putin’s administration about these findings. At this point I was on Putin’s radar and it became clear that my organisation was a threat.   Then, just as they had done to me in 2015, on 15 January 2020 police officials raided my friend and colleague’s home because he created the Gulagu.net website and controlled its network. When they raided his home, they severely beat him and left with all the paths and logins of our network. The very next day on 16 January 2020, the network and all the information that was published on our site was deleted. After seeing how my friend was almost beaten to death and re-living the danger of our work, I had lost some of my morale and did not have the fight in me to rebuild Gulagu.net . But my friend did not let us quit. For him it was also personal, because his father was tortured and killed in in prison and he wanted to expose who was responsible for killing his father. He was not alone—there were hundreds of thousands of others. We knew we had to keep fighting in order to put an end to the torture and corruption. So we continued to work and later that year, we found further concrete evidence, also about the convener of the torture, and we transferred these files to the Council of Europe anti-torture Committee (CPT). I thought that this would be very consequential because the CPT has the right to enter Russia to investigate further. But they did nothing to follow up and I could not understand why. I thought, ‘we have the proof and evidence, why don’t you want to do the fact checking of our information?’.   Then, last year in March 2023, I was invited again with my colleague and friend Sergei to present our evidence. This time it was in front of Alan Mitchell, the president of the CPT. I asked Mr Mitchell why we didn’t hear anything from the CPT after our initial meeting, as their very essence is to prevent torture. Mr Mitchell explained that it was also political—at the time when Russia was still part of the European Parliament, they did not want to publish the reports about these. But now that Russia has invaded Ukraine, the tone of the CPT has changed entirely because the Russian officials are using the same torture tactics in this armed conflict. I cannot help but think that if I had done even more to show what the Russians were capable of before the invasion, perhaps the international community could have been better prepared.   Since the start of the Russo-Ukraine war, we have documented evidence that the FSB and the Russian army are conducting illegal arrests and are kidnapping thousands of Ukrainian people and transferring them to occupied territory. The Ukrainians are then put in concentration camps based on the prison system I have dedicated my life speaking out against. We know from witnesses that they are practicing the same torture methods against Ukrainians. Last year, we helped three Russian officers from the concentration camp escape in exchange for their testimonies and them bringing concrete evidence to assist the international investigation.   I then presented and provided this information to the International Criminal Court (ICC) in which the prosecutor, as we know, has opened an investigation against Russia. I understand that, at this moment, the ICC has the right to investigate Russia in respect to the crimes inflicted on Ukrainians in Ukraine. In understanding and contextualising the systematic torture methods used by Russian officials Gulagu.net has documented over the years, it can provide the ICC with a concrete understanding of how  and what war crimes we can suspect are being committed. It is also my hope that one day the ICC can also use the information we provided to investigate the Russian officials who committed similar acts of torture on Russian people in the Russian prison systems.   CJLPA : What message would you like to send out to the readers and the viewers in respect to the situation in Russia to date? How can we contribute to human rights organizations such as yours to help inspire change?   VO : Every day my life and my family’s life are endangered. The more I publish information, work with international organisations, or conduct interviews, the more I become a threat to Putin. Before I left Russia, the Russian special forces tried to kill me. I now live in France in refuge with full security and no one knows my precise location, but still, the Russian special forces are everywhere. Every interview I do may be the last.   So, in this moment, I want to say what I think and be clear. I’m Russian. My head is Russian. My heart is Russian. I want to say to all the world that Russia is not the same as Putin. Millions of Russians have left the Russian Federation because they don’t accept the political dictator Putin. Millions of Russian people remain in Russia because they don’t have the choice to leave. Many Russians left behind keep their heads down because they are scared—for more than 20 years, the FSB and Putin have created a government that instils fear. For most people arrested in Western countries, you will have the protection of a lawyer, a fair trial, and if all fails, a prison where torture is illegal. In Russia, if a police car stops near you, it is the biggest fear of being arrested, being beaten into a confession or landing in a prison where you will tortured, raped, even killed.   I love my country. I hope that one day Russia will return into a democratic country without Gulags—without systematic torture, rape, and murder in prison systems. I also hope that the international community creates an international tribunal to investigate all the crimes of Putin—the crimes against Ukrainians and against Russians. Every actor responsible must be held accountable. If my mission and the work with my colleagues can help contribute to this this in any form, then everything we have risked and endured will be worth it.   We need to also learn from our mistakes. I had presented evidence against the Russian Federation since 2009, but decision makers kept their eyes closed and did not want to escalate the problem, giving Putin the benefit of the doubt. Meanwhile, Putin was taking advantage of the inaction from his peers and, for example, began the Nord Stream project to build pipelines in the North Sea in preparation for war. When he finished this project, he started the second part of the war against Ukraine. It is only when war invasion occurred that decision makers took a deeper interest in my work. Decision makers need to act with more urgency from the very start—a lot what is occurring today could have been prevented.   All of us—me, you, your family, your friends—need to do everything we can to make sure that ‘never again’ is not just a pretty phrase from World War II, but that there is truth in it.   CJLPA : Thank you for sharing your courageous life’s work at Gulagu.net . This interview was conducted by Nadia Jahnecke, the Legal Editor and Founder of CJLPA's Special Edition, 'The Human Agenda'. In addition to her role at CJLPA, Nadia is a qualified lawyer in England and Wales specialising in public international law.

François Zimeray is a prominent French diplomat, lawyer, former politician, and human rights activist. Zimeray previously served as France’s Ambassador-at-Large for Human Rights. He later became the French Ambassador for the Kingdom of Denmark in 2013.   This interview was conducted on 14 September 2023.   CJLPA : Welcome, Mr. François Zimeray. We would like to begin by thanking you for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art . Your extensive political career as an MP in the European Parliament, being the French Ambassador-at-Large for Human Rights appointed by President Sarkozy, and serving as the French ambassador to Denmark, combined with your experience as a lawyer in international criminal and human rights law, provides a valuable perspective on pressing international law and political questions. We would specifically like to examine key legal and political issues in respect to the Russia-Ukraine War, but also more broadly, in the name of human rights. I wanted to begin by asking you to briefly outline your career. Having begun as a commercial lawyer, you transitioned into successful career in politics, and then started a leading law firm specializing in international human rights. What prompted your decision to delve into the field of human rights law?   François Zimeray : Thank you for inviting me, it’s a privilege for me to have this opportunity to share some thoughts and maybe experiences with the students you represent. Human rights has always been a commitment in my life, even before I became a lawyer, before I got involved in politics. I was in high school when I heard about Cambodian genocide, and I was very troubled, because my generation was raised with one motto, inspired by the tragedy of the Second World War, and this motto was ‘never again’. And we were obsessed about what to do in order to avoid a new perpetration of the crimes and atrocities of the mid-20th century. I realised when I was a very young student that this was happening again. I thought that indifference is a crime without forgiveness. So, I got involved in human rights through the schools by welcoming and supporting Cambodian refugees. This put me in contact with the realities of the world. Before, I didn’t know because I was not configurated or confronted to these realities, living in a protected environment in Paris. After meeting the Cambodian refugees and discovering what they had seen and endured, this inspired the rest of my life.   You mentioned a career, but this is a word I never used. In fact, I never had a career plan. When I look into the rear mirror, as it were, it’s only then that I can see something which looks like a career path.   CJLPA : What do human rights mean to you personally?   FZ : That’s a good question. I learned from experience that words have not the same meaning depending on the person who listens to them. And human rights is a very important example, which deserves extended consideration. Because when you say, human rights, most people hear ethics, values, principles, moral virtues. And I have to say that human rights are not ethics. Human rights are not morals. Human rights are not very views, which is a very vague term. Human rights are rights that exist or don’t exist; rights that are enforced or violated.   From this divide, it could lead to two different interpretations and attitudes vis-à-vis human rights. If you think that human rights are the synonym of morals, ethics, virtue, you are then dealing with symbols, posters, statements saying that human rights are perfect because ethics, by definition, are perfect. But, if you think that human rights are rights, which mean compromises or virtues, then human rights are, by definition, imperfect. Why do I say this? Because in democracies, rights are adopted by Parliament, after ideas are traded and discussed by different political parties and ultimately voted for by resolutions. These are therefore rights adopted from compromises which are inherently imperfect. As a former diplomat, I know that if you consider human rights as morals, then it is absolute and there is no possibility for compromise. It becomes a question of morals against other morals. Let’s say for example, we consider women’s rights and their right to religious freedom in wearing a veil, or the burqa, or other aspects. If you stand with moral arguments, you will face people with another vision of morality. I don’t see where a compromise or an agreement can be made if you have different morals. But, if you say human rights are not about morals, but actually about rights, then a dialogue is always possible: Where should we put the limit? What is allowed? What is forbidden? On which criteria should we agree to set a standard?   So this is my personal vision of human rights. Human rights are rights and it’s very demanding. It’s very demanding because sometimes the ‘right’ the law says can imply different solutions, opposite to what morals should inspire. Let’s try to find a very concrete example. Let’s say that in a criminal procedure, you have an accused criminal who is more likely than not guilty, but the criminal procedure is not fully respected. This means that the criminal’s right to a defence and the right to a fair trial is not fully respected. This leads the court to declare a mistrial due to the lack of respect for the rules. This outcome is in accordance with having rights. However, if you ask someone in terms of moral ethics, you have criminal that should be in jail. So, I don’t believe in fixating on morals and the justice that comes with it. I believe in rights, which is different and a very demanding discipline. It is a discipline which requires to think against oneself.   CJLPA : You said that you don’t believe in the concept of justice in this perspective. How would you then describe justice in light of your view of human rights?   FZ : To clarify, justice does exist but not in the way that we so often idolize it to exist. What exists are judges, which means people are judging other people. What also exists is law, which is tangible. But justice belongs to the lofty ideal. For example, sometimes a war criminal is captured, which is good. He’s tried in a court which is good, and he’s condemned, which is good. And I see the comments of media. They say justice has been done, but no, justice will never truly be done. We can never change the tragedy of the fact that men, women, and children were attacked, raped, kidnapped, and killed. But what has been done is that the law has been said: the last word was for the human rights; this has been done. It’s at the highest thing that mankind could do.   This confusion between justice as judgments and justice as values and ethics is really misleading.   Just to illustrate what I said earlier regarding morals and human rights, another very simple example that I think everyone could understand is the debate for or against the death penalty. Personally, I’m hostile to the death penalty. Those who are against the death penalty, they stand with moral arguments, but those who are in favour of death penalty, are also aligning themselves with moral arguments. So everyone has their morals. In France, we had a debate a few years ago on ‘ mariage pour tous ’ (marriage for everyone), whereby gay marriage was made legal in France. Those who were in favour, which was my position, were standing on moral arguments. But those who were against, also had their own morals. So I think it is important we try to find other arguments and not stay on this kind of subjective moral level. We should be humbler and more ambitious because as I said, human rights are a discipline and it’s extremely demanding.   CJLPA : We would like to further ask you to discuss your perspective on international human rights. What challenges and setbacks have you faced in bringing cases to international courts? Did this shape your understanding of international human rights law and the moral framework that you were explaining earlier?    FZ : That’s a very big question. If I put together all these experiences, I would say I see two main challenges. I want to put the finger on universality and indivisibility. Universality is a treasure. It’s a great asset that we got as a legacy from generations of people who fought against atrocities and who paid the price with their lives or their freedoms in order to build a civilization, a part of the human civilization where human rights prevailed. What does it mean? How do we explain universality in very simple words?   These words are engraved in the preamble of the Universal Declaration of Human Rights. It says that there is a human family and that we, as members of the human family, have the same rights and same aspiration for dignity. Phrased in other words, we all are different. We are different individuals from different generations, different cultures, different religions, different social conditions, different genders, different skin colours, and many different things. We all are different, but as we all belong to the same human family, we are equal in dignity. And these rights, these fundamental rights, are the fundamentals necessary to protect our dignity. In other words, it consists in promoting what we have in common before our differences. This was a great legacy, a great asset that we have inherited from the old generations, putting forward our similarity as a human family before our differences.   What do I see in the last few decades? It’s the exact opposite trend, which consists in promoting the differences before the similarities. Everywhere you look, people indicate their differences. The world wants to classify people by categories. They don’t see people as individual equals, but as members of categories. Are you black, white, male, female, L, G, B, T? You have a lot of categories. You put people in categories and do not see people as individuals, free from the origins, free thinkers. And of course, we all are different and we all have to deal between this dialectic and complexity incumbent to our singularity, our ethnicity, and the fact that we belong to a tradition. We belong to a group, we belong to a family, we belong to a community. Yes, we must deal with this, but this is a personal thing. One should not put a label on the person like a stamp.   And I think that one of the first challenges is to protect and to promote this unique and extraordinary concept of universality because after everything I have seen and learnt during all these experiences as a lawyer, as an activist, as a diplomat, lead me to the conclusion that it’s not human rights that are universal as a concept. It’s something else. It’s the suffering that is universal.   There are no different ways to suffer of torture in reference to your culture, your religion, or your skin colour. Torture is always painful. I have never seen a person who finds it normal to be thrown in jail without a fair trial because that’s a culture or the tradition of the place. I’ve never seen a woman considering that it’s normal to be raped because it’s a culture to be unequal. When I think back to all the mothers of the children who have been kidnapped, they were from Argentina, Colombia, Algeria, Lebanon, Chechnya, or Congo. They all had different nationalities and cultures, but at the end of the day, they looked at you with the same eyes. They spoke about the beloved child who disappeared with the same painful expressions. They had the same attitude when they caress the photo with the finger of the child who disappeared. So, it’s not human rights as a concept which is universal. It’s mankind suffering, which is universal. Mankind’s aspiration for dignity is universal; mankind’s pain is universal. I think that the great challenge for your generation is to fight for this universality, where more and more the social media wants to dismantle that and force people to think in terms of communities.   Another challenge, recalling when I said that human rights is a discipline and very demanding, is indivisibility. Indivisibility says that all the rights enshrined in the Universal Declaration of Human Rights are coherent together, complementary, and there is no hierarchy between them. That’s very complicated sometimes and difficult because you have to facilitate the cohabitation of all these rights together. For example, think about the decolonization movement in Algeria. In this situation, you had violence and even terror from the colonized, but also, the right to self-determination is a basic human right and has to be promoted and defended. One should stand on the side of those who fight for self-determination in principle. Yet, even if we say anti-colonization is a fair cause, to what extent should we accept the means used to achieve self-determination especially, when the means inflict terror? Human rights are against colonization and human rights are against terror. And you must protect both rights together. This is not easy; sometimes people justify terror because they have a fair cause.   I have to say that all terrorists think they have a fair cause. I was a victim of a terrorist attack. I know what it means being a victim of that. All the perpetrators think they have a fair cause. It led me to a conclusion which I would like to try to explain and share with you. We often hear, especially in the human rights community, statements and condemnations against hate speeches. However, I found something more dangerous than hatred.   It’s people who are convinced that they embody righteousness. My observation is that most, maybe the vast majority of perpetrators, tyrants, terrorists, some political criminals, are convinced that they fight for a fair cause and that because they fight for a fair cause, they have to do things which might be bad things. I came to the conclusion that more dangerous of hatred in itself is the fact that people do not doubt that they are the embodiment of justice.   In France, we had these terrible terrorist attacks against the Jewish communities and against the cartoonist of Charlie Hebdo. I remember a man once came into a Jewish school and he killed children and teachers and what did he say? He said, ‘you killed my brother in Palestine, so I kill you’. In his mind, this crazy and sick mind of a terrorist, he was not acting badly. He was the hand of justice. What did those who massacred the staff of Charlie Hebdo do? After they perpetrated their crime, they came in the street and shouted, ‘we revenged the prophet Muhammad’. So again, in their mind, they were right to do so. The feeling that you embody the right and you have a fair code is more dangerous than hatred itself. Hatred is to be condemned, hatred is bad, but hatred is very human. But, when you think that you are justice, this is what allows you to be inhuman.   I also learnt from my diplomatic experience when I was traveling in many countries ruled by tyrants and dictators. I found that dictators have common grounds. Firstly, a lack of humour, which means that they are distant. Secondly, they think that they embody a fair cause. What they do might be sad, difficult, but they have to do it for the sake of their cause, the sake of their people, the sake of independence, the sake of they have to do that. Further, they have an obsession of purity. Finally, they have sincerity. Most of the dictators and perpetrators I met are somehow sincere. Not always, of course, I’m not naïve, but they believe in what they’re doing. Sincerity, in a way, is another word for the absence of doubt. A culture of no doubt and the capacity to distance oneself from the events, explains the lack of humour. So, everything is coherent.   I come back to the second challenge because I want to follow my thoughts on this question. We are not always confronted with all these challenges, especially in our democracies. But we are confronted often with people who in their daily life have a certain lack of humour, a certain sincerity and conviction, which they believe gives them a fair cause to defend. They accept some compromises: they defend the cause whilst knowing there are bad consequences. But in French we have this expression ‘on ne peut pas faire une omelette sans casser des œufs’ (you cannot make an omelette without breaking eggs). So we have to break eggs to make an omelette, but human rights says that we also have to be the advocate for the eggs as well.   CJLPA : I now wanted to transition and focus on the Russo-Ukraine conflict, particularly as regards the International Criminal Court (ICC). The ICC has the most universal jurisdiction and yet Russia and the US are both not a party to the Rome Statute and are unlikely to willingly accept a special tribunal. How can ‘justice’ prevail under international law?   FZ : I would say first one should not try to achieve justice, but to make law prevail, règle de loi ; the rule of law. We will never make justice for the people who died. But what we can do is ensure that the last word will be for the law, so we bring these people to a court. But it’s not justice with a big J that is the value because this is a very ambivalent term. Justice means three things: it means ministry of justice, it means jurisdiction, ie courts and criminals, and it denotes a value. There is a permanent confusion between all three.   Justice as a value is our ambition to achieve justice by bringing people to court. On that, one has to realize that in our world, even though it’s unsatisfying, the field of law is not absolute. There are domains which are outside of any justiciability. One must be innovative and creative. The problem of international justice is that, as it exists, Russia is not a part of it, among other important countries too. So, one has to fight for universalization of these rights to create a real and international standard agreed by all. There is an alternative: a lot of voices call for special tribunal, but it’s never satisfying because special tribunal are the justice of winners. And the justice of winners is not the perfect justice, because to be fair and to be useful, justice should be recognised as fair by all parties. If it’s imposed by the winner on the loser, it does not work that well and is not very satisfying.   I think there are two other reasonable alternatives. The first is Ukrainian justice. Ukraine is a UN recognized state. This means Ukraine can try Russian officials and the persons who have committed war crimes, crimes against humanity, or any crime perpetrated on their soil. These judgements should be recognised by the international community, provided that all the guarantees of a fair trial are met. On this basis, there is a jurisdiction which is already competent. The second avenue is of Russia’s jurisdiction. I believe that, one day, these perpetrators can be brought to trial on Russia’s jurisdiction. Not today, not tomorrow, but a day will come where they will have to face jurisdiction in Russia because of regime change. I have heard voices say ‘this is unrealistic’, say ‘he’s a dreamer’ or ‘this is a fiction’ But, it’s not more unrealistic than forcing Russia to join the ICC, which is technically impossible now.   At the end of the day, even if we assume that ICC will pursue the procedures against Russia, this is further limited by the fact that Russia is a member of the Security Council and has a veto right as well. Let’s assume that all these obstacles are overcome and perpetrators are judged in court and condemned: we will still need the cooperation of the Russian government to bring them to jail or to execute the decision. So for those who think that a special jurisdiction is possible: if we follow this, we will still need the cooperation of the Russian authorities.   Whilst the options remain imperfect, this is the reflection of the legal situation as it is. It doesn’t guarantee that all the perpetrators will one day be brought to justice, but this is a reality in a world ruled by law, and this is, yes, the sad reality.     CJLPA : To what extent do you think your proposal will be realised in the future? If a regime change were to happen, would other states support these actions, such as China, whose affiliations are often with the Russian State?   FZ : I think honestly, and it’s not an answer I like, but it’s the answer I believe in: I don’t think that we could expect some changes from the international institutions because as I said at the beginning when I explained: human rights are inherently imperfect because they are a right. Human rights are created and upheld by the UN and national Parliaments and therefore, are born out of compromises. These compromises are the reflection of the political forces. The rights are voted by the Parliament in all the democracies, not inspired by the God of wisdom. Therefore, I don’t expect a big change in the years to come in these rules because major members have absolutely no interest in these changes. I think that one day things will change in Russia. This I believe for many reasons and especially because the Russian people will realize that they also suffer from this invasion and aggressive anti-Western politics. There are a lot of opponents who just waiting for new circumstances to make a change in their regime.   This is a very important point one should always remember: the UN is far from perfect, especially the Security Council, but the world is much better with it than without it.   CJLPA : Do you see neighbouring countries having the ability to serve justice by holding the perpetrators accountable for the Russo-Ukraine war by means of universal jurisdiction?   FZ : Yes, some countries have universal jurisdiction. For example, France has universal jurisdiction for torture. However, the problem of universal jurisdiction is that if there is no link between the country that judges and the citizenship of the perpetrator, the citizenship of the victims, or the country where the crimes happen, it’s a wrong and misleading promise. Let’s assume that France declared universal jurisdiction in respect to the Russo-Ukraine war. But the issue is, on which basis? We don’t have victims or perpetrators living here and the crimes did not occur on our soil. Remember the indivisibility of human rights. On the one hand, we would like to fight against impunity as a part of human rights guidelines. On the other hand, we will not renounce the right to defend and presumption of innocence until concrete evidence suggests otherwise. France has no possibility of this and therefore, it’s a fake promise—it’s wrong and misleading. I also don’t think that it’s a good message for the victims to let them believe that countries who have nothing to do with it are in the capacity to try the crimes.   We had some examples of tentative attempts at universal jurisdictions a few years ago in Europe, specifically, in Belgium and Spain, and it proved to very difficult. About 20 years ago, Belgium decided that they were competent to judge situations or crimes that might have been committed in the Middle East, but at the end of the day, no one recognised the legitimacy of that. At the end of the day, for justice to be useful, it has to be recognised by all parties.   On this, I want to make a special comment. What is the purpose of justice? I’ll just put this simple question out: why should we try criminals? I phrase it in a very provocative way because some things appear obvious to us. And I will just ask the question, why should we try the criminal? Is it to accomplish justice with a big J? No, even if I condemn them to death, it won’t not make the victims come back. It will not repair the sufferings of the families, of the mothers, the fathers, of the sons, of the daughters. It will not do that. So why should we try the criminals? It is for history, for pedagogy, to draw the lessons for humanity, to draw the lessons of how this could be possible and try not to repeat these tragedies in the future, to dissuade the others to repeat: these are reasonable objectives. All of this is not possible if the tribunal is not recognised as legitimate by all parties.   In France, we tried Nazis in court a few decades after the genocide. Of course, they were not condemned to death because we have abolished the death penalty. Why did we try people of 85 to 90 years old? Because we thought what was important was the trial itself, not the decision at the end of the day. What was important was the trial, what we learned from this trial, the voices of the victims, but also, to try to understand what happened. How come that person became a perpetrator? You are not a perpetrator of a war crime when you are eight years old, 12 years old, and even 15 years old. Normally something happens in society and in your life influencing your psychology and your actions. This is important to understand in order to create a world where this will not happen again. But for this to be possible, it means to separate justice and revenge. And that’s why now is not time for justice. There is time for war, there is time for suffering and there is time for justice.    The diplomats used to say there is no peace without justice. Yes, that’s true, but there is no justice without appeasement and distance. This is unsatisfying because in truth, like why you ask me these questions, which are very good questions, is because we are frustrated. It’s because we would like to help, but we cannot help. It’s because we watch the news from the media and say, okay, what can we do? Because we are confronted with our own lack of power and this is unacceptable to us. But then ask yourself, is the idea of justice for us? For them? Or for history?   We should ask ourselves: What is the objective? The finality beyond the idea? Is it to put some bands on the heart of the victims? Yes, this should be a reasonable objective. Is it to draw the lessons for history on the next generation? Yes, that’s also good objective. But is it also to bring a solution or a therapy to our own feeling of lack of power? This is not a good objective. I see a lot of gestures of people launching ideas, making statements which are for their conscience, but this is not useful except to mask and to hide our incapacity, which is unfortunate, but which is part of the reality.   I try to sum it in one phrase: our call to justice should be inspired by the main objectives of bringing power to the victims, for humanity to draw the lessons and to dissuade new perpetrators in the future.   CJLPA : Thank you for taking the time to interview with us and to discuss your inspiring career.   FZ : Thank you for your interest. Merci beaucoup. This interview was conducted by Nadia Jahnecke, Legal Editor and Founder of CJLPA: The Human Agenda. In addition to her role at CJLPA, Nadia is a qualified lawyer in England & Wales specialising in public international law.

Introduction   On 30 June 2020, the National People’s Congress Standing Committee (NPCSC) in Beijing imposed its ‘National Security Law’ (NSL) on the Hong Kong Special Administrative Region.[1] Its provisions—drawn up in complete secrecy—criminalise conduct (including conduct outside Hong Kong) that would elsewhere be recognised as ordinary civic and political participation. Under the NSL, the territory is subject to two distinct state security apparatuses—one made up of Hong Kong police, prosecutors, and judges; the other of Mainland Chinese state security agents—neither of which are subject to meaningful legal or democratic accountability. Despite the lip service paid to fundamental rights in Article 4, the content of the NSL[2]—and the way in which it was imposed—conveyed one clear message: any such rights could be abrogated at will.[3] More than three years after the imposition of the NSL, Hong Kong’s political and legal orders have been transformed beyond recognition. Opposition parties, civil society groups, and independent media have been shut down by a combination of police raids and intimidation; authorities increasingly inveigh against mere expressions of dissent as acts of ‘soft resistance’ threatening ‘national security’.[4] Pro-democracy politicians and activists have been incarcerated, exiled, or otherwise forced out of the public arena. As of 1 July 2023, a total of 264 people have been arrested, and 148 charged, with NSL-related offences or colonial-era sedition offences; of the latter, 70% have been denied bail.[5] Even exiles are not immune from the reach of the NSL: on 3 July 2023, the Hong Kong government announced HK$1M (approximately GBP 104,800) bounties on eight politicians and activists in exile, including barrister and former legislator Dennis Kwok and solicitor Kevin Yam.[6] As I have argued elsewhere,[7] Hong Kong’s post-NSL legal order is now a dual state[8]—one in which the security apparatus is not subject to any legal restraints, and in which the ordinary, ‘normative state’ can be displaced merely by invoking the deliberately nebulous concept of ‘national security’.[9]   All of these developments[10] are a matter of public record. Yet the Hong Kong Court of Final Appeal (‘HKCFA’) continues to boast ten Overseas Non-Permanent Judges (‘overseas judges’), all of whom have held high judicial office in the UK, or in other Commonwealth jurisdictions. More than three years after the NSL was imposed, only three overseas judges have resigned from the HKCFA.[11]   Some of the overseas judges who have chosen to remain[12] have sought to rationalise their continued presence on the HKCFA. Speaking to the Canadian Broadcasting Corporation in 2022, former Canadian Chief Justice Beverley McLachlin asserted that the HKCFA remained ‘completely independent of the regime in Hong Kong’ and that she was not ‘doing anything negative to prop up that regime’.[13] Similarly, Robert French, former Chief Justice of the High Court of Australia, publicly defended the continued presence of Australian judges on the HKCFA, claiming that he supported ‘their commitment to maintaining judicial independence’.[14]   These defences portray Hong Kong’s legal system as the Rechtsstaat (of sorts) they still imagine it to be, rather than the dual state it has become. In particular, they suffer from two inter-related misunderstandings. First, they do not take into account the HKCFA’s decreasing ability—and willingness—to exercise a moderating influence on the post-NSL judiciary. Second, they misapprehend the role and significance of overseas judges on the HKCFA. I consider each in turn below.   A ‘moderating influence’—or not   As McLachlin’s and French’s remarks demonstrate, defenders of the continued presence of overseas judges presuppose that the HKCFA remains able and willing to act as a guarantor of the rule of law and fundamental rights, even in the post-NSL legal order. A more detailed examination of the systemic pressures on Hong Kong’s judiciary, however, suggests that the HKCFA amounts to—at best—a sticking plaster on a bullet wound.   As documented in a May 2022 opinion signed by (among others) Lord Carlile of Berriew, Sir Robert Buckland, Sir Geoffrey Nice KC, Lord Sandhurst KC, and Baroness Kennedy of The Shaws (‘the 2022 Opinion’),[15] Hong Kong’s judicial independence faces four major threats: threats to the HKCFA’s power to adjudicate cases, primarily through the use of ‘interpretations’ of the Basic Law to short-circuit the HKCFA; the imposition of the NSL in 2020; political pressure directed at the composition of the HKCFA, and political pressure by PRC state and state-affiliated actors directed at the judiciary as a whole. I address each briefly below, before examining the cumulative effect these threats have had on the judiciary and the HKCFA’s limited role in exercising a moderating influence.   Threats to the HKCFA’s power of final adjudication   Under Article 82 of Hong Kong’s Basic Law—its constitutional instrument—the HKCFA is supposed to enjoy the power of final adjudication. However, the ultimate power to interpret the Basic Law rests with the National People’s Congress Standing Committee (‘NPCSC’)—an unelected political body that deliberates behind closed doors, and that delivers decisions motivated by political considerations rather than legal evaluation.[16] As a result, the HKCFA’s ability to interpret the Basic Law is ultimately subject to undemocratic political constraint in the form of NPCSC ‘interpretations’; in a series of cases between 1999 and 2001 involving the right of abode,[17] the HKCFA accepted that the NPCSC had the power to interpret any provision of the Basic Law,[18] at any time, in any manner whatsoever.[19]   The upshot of these arrangements is that the HKCFA’s ability to interpret the Basic Law is contingent on political restraint from the NPCSC. As the history of NPCSC ‘interpretations’ has shown, however, Beijing has shown no such restraint whenever it perceives any threat to its ability to control the territory.[20] As of 31 January 2024, the NPCSC has given five such ‘interpretations’—only once  at the HKCFA’s behest. At least two of these ‘interpretations’—one delivered in 2005, one in 2016—were made with the specific purpose of pre-empting imminent or pending litigation in Hong Kong; in particular, the latter was issued while Hong Kong court proceedings were pending .[21] Taken as a whole, the history of NPCSC ‘interpretations’ highlights the limits of the Hong Kong judiciary as a whole—and the HKCFA in particular—in preserving the ostensible guarantees of the Basic Law from Beijing’s predations.[22]   The NSL’s threats to judicial independence[23]   The NSL has been extensively criticised by senior practitioners and human rights experts worldwide[24]—for good reason. In addition to the breadth of its substantive offences and its extraterritorial reach, the NSL diminishes Hong Kong judges’ independence—and replaces Hong Kong legal institutions with Mainland institutions.   Several provisions of the NSL severely undermine judicial independence. To take only the most flagrant example, Article 44 provides that (a) the Chief Executive shall have the sole power to designate judges to hear cases concerning ‘national security’ offences; (b) designated judges have one-year terms, with no guarantee of renewal; and (c) designated judges may be removed at any time if they make any statement or behave in any manner that the Chief Executive considers to endanger national security. In short, the Chief Executive has untrammelled discretion to appoint and remove ‘national security’ judges—who, in turn, will be expected to decide cases in the government’s favour in exchange for renewed appointments.   The NSL also has a backstop in the event that Hong Kong’s judges do not capitulate: the imposition of the Mainland’s state security and criminal law apparatus. NSL Article 48 creates the Office for Safeguarding National Security (‘OSNS’), staffed by Mainland state security agents and under Beijing’s direct supervision. The OSNS—which is not subject to the jurisdiction of the Hong Kong courts[25]—may directly exercise jurisdiction over NSL cases in nebulously-defined circumstances;[26] in such circumstances, defendants will be investigated, prosecuted, and tried by Mainland authorities, with no role for the Hong Kong courts at all.[27]   NSL-designated judges have responded to these institutional incentives in an entirely predictable manner. Designated judges have, on numerous occasions, all but prosecuted from the bench[28]—issuing judgments casting unwarranted aspersions on pro bono  defence lawyers,[29] and abandoning entrenched legal principles and fundamental rights.[30]   One particularly egregious example[31] deserves to be set out at greater length. In sentencing defendants for publishing a book implicitly comparing the Hong Kong and Beijing government to wolves and the Hong Kong public to sheep, District Judge Kwok Wai-kin pontificated:   Furthermore, when you said that you did not want the authorities to ‘brainwash the children’, then why is it that you had the right to brainwash them? According to the evidence, one of you had said that children were like white sheet, and you people had to act first. Of course, you may argue that education is a kind of brainwashing anyway, but if that is your justification, as a teacher, why didn’t you put all the fundamental facts before the children but hid from them? In Europe, no one can in the exercise of his freedom of speech deny the existence of Holocaust, then why is it that you would have the right, in HKSAR, to deny that PRC has undisputable sovereignty over HKSAR which is an alienable part of the PRC, and instill this kind of ideas into the mind of children who should be taught to love his country and his homeland?[32]   Political Pressure Directed at the HKCFA’s Composition   Further, since 2018 pro-Beijing legislators have objected to the appointment of at least three judges to the HKCFA for partisan political reasons. In a subcommittee meeting held on 27 March 2018 to discuss the proposed appointment of Baroness Hale of Richmond and former Canadian Chief Justice Beverley McLachlin to the HKCFA, pro-Beijing legislators objected to their proposed appointments, citing their views on same-sex marriage and their perceived inability to protect Beijing’s perceived national interests;[33] nonetheless, both judges were eventually appointed. Madam Justice Maria Yuen—a long-standing member of the Judiciary—was less fortunate. Despite a recommendation from the Judicial Officers Recommendation Commission—a non-partisan statutory body—pro-Beijing legislators successfully blocked her proposed appointment to the HKCFA, citing her marriage to the previous Chief Justice Geoffrey Ma;[34] Ma had been pilloried by pro-Beijing politicians for defending the judiciary from previous political attacks. Following the changes to the Legislative Council’s composition imposed in 2021 and the effective exclusion of any  candidates without firm pro-Beijing leanings,[35] political pressure on HKCFA judicial appointments appears likely to increase.   PRC State and State-Affiliated Attacks on Judges   Political attacks have not been confined to the HKCFA. Over the past decade, Mainland officials, pro-Beijing politicians, and the Party-affiliated press have repeatedly pilloried judges who have declined to bend over backwards in favour of the perceived interests of the Hong Kong and Beijing governments,[36] accusing judges of being ‘complicit in facilitating Hong Kong independence’[37] and demanding ‘rectification’ of judgments[38] and ‘reform’ of the judiciary.[39] As a result of these attacks—which the Hong Kong government has repeatedly refused to criticise[40]—at least one judge has taken early retirement and two judges have been reassigned to other posts.[41]   Judicial Retreat   These cumulative threats have—as noted in the 2022 Opinion—precipitated a pattern of judicial retreat. Even before the NSL was imposed, Hong Kong’s judges have departed from established legal principles in ways that defer to, or that empower, Hong Kong and Mainland authorities. To cite merely one example from 2018,[42] the Court of First Instance upheld an immigration checkpoint ‘co-location’ arrangement, under which part of Hong Kong’s express rail terminus was declared to be subject to Mainland law. Such an arrangement, on its face, contravened Article 18 of the Basic Law, which declared that such legislation could only apply to Hong Kong if (a) specifically listed in Basic Law Annex III and (b) it related to matters outside the scope of Hong Kong’s autonomy. Nonetheless, on 27 December 2017, the NPCSC issued an unreasoned decision bluntly asserting that the arrangement was consistent with the Basic Law. The Court of First Instance went on to take this decision at face value,[43] even describing it as ‘carefully considered’ (in paragraph 75).   The HKCFA’s Limited Ability—And Willingness—To Act   Faced with all of these systemic challenges to judicial independence,[44] the HKCFA—or, for that matter, any apex court—would have a difficult brief. Unfortunately, the HKCFA under current Chief Justice Andrew Cheung appears—at best—unable to defend judicial independence and the rule of law in the territory from Beijing.   Threats of NPCSC intervention.  In fairness to the current Chief Justice, one of the HKCFA’s most significant capitulations to Beijing occurred well before his tenure. As noted above, by 2001 the HKCFA had acknowledged that the NPCSC enjoyed plenary powers of ‘interpretation’, with no meaningful constraints. As a consequence, the NPCSC has increasingly invoked its power to ‘interpret’ the Basic Law—including for the express purpose of circumventing the Hong Kong judiciary.   Defendants abruptly abandoning appeals or switching legal teams.  Another factor that the current HKCFA is ill-equipped to oversee is the trend of ‘national security’ defendants abruptly switching legal teams or abandoning their appeals, in circumstances suggesting that they have done so under duress.[45] To name only one example, Tong Ying Kit—the first person convicted under the NSL—appealed against his conviction; several months later, Tong dropped his appeal without explanation and without having consulted his barrister.[46]   Decisions regarding leave to appeal. Unfortunately, there are also signs that the current HKCFA is not merely unable to assume a moderating role, but unwilling to do so. Under the Hong Kong Court of Final Appeal Ordinance, no appeals may reach the HKCFA unless leave has been given[47] by the Court of Appeal or by the HKCFA Appeal Committee (‘Appeal Committee’)—neither of which involves participation by any overseas judges.[48] Since 2016, the Appeal Committee has refused leave in several politically controversial cases involving fundamental rights;[49] in one such case, HKSAR v Ng Hau Yi Sidney (2021)[50], the Appeal Committee held that the NSL’s presumption against bail extended to other, non -NSL offences that also implicated ‘national security’. Not only do such decisions raise questions about the HKCFA’s willingness to exert a restraining influence on lower courts in politically sensitive cases; they also effectively remove such cases from the purview of overseas judges altogether.   The current Chief Justice.  One incident involving the current Chief Justice deserves particular mention. In December 2020, pro-democracy tycoon Jimmy Lai (who founded the now-defunct Apple Daily  newspaper) was granted bail by a lower court after being charged with ‘foreign collusion’ under the NSL. Following howls of outrage from the pro-Beijing press,[51] Chief Justice Andrew Cheung met privately with then-Chief Executive Carrie Lam—four days before the HKCFA heard the government’s appeal from the decision to grant Lai bail.[52] The HKCFA—sitting, unusually, without any overseas judges at all—ultimately ruled in the government’s favour, confirming the NSL’s presumption against bail.[53]   Overseas judges’ benefit to Hong Kong: reputational bonuses without effective oversight   More significantly, the overseas judges who have remained on the HKCFA misapprehend why their presence on the HKCFA is valued, and what  the limits of their presence are. They under-estimate the reputational gains they provide to the Hong Kong government, and over-estimate the extent to which they are able to play a role in whatever moderating influence the HKCFA might choose to exercise.   Reputational gains   Hong Kong officials have repeatedly pointed to the continued presence of overseas judges as an endorsement of the territory’s legal system. Speaking in 2014, then-Secretary for Justice Rimsky Yuen referred to overseas judges as ‘a strong testimony to the state of judicial independence and the rule of law in Hong Kong’[54]—a sentiment repeated by his successor Teresa Cheng in 2021.[55] Similarly, speaking a month before Lord Reed of Allermuir PSC and Lord Hodge DPSC resigned from the HKCFA, the Chief Justice declared that ‘[t]he very fact that Lord Hodge came to Hong Kong and heard cases, and the statements given by the UK Supreme Court about their continued support and participation in the [HKCFA], I believe, speak for themselves’, and that he was ‘grateful for their continued confidence in the judicial independence in Hong Kong’.[56] As these statements illustrate, Hong Kong’s executive and its judiciary have trumpeted overseas judges’ decisions to remain on the HKCFA as a vote of confidence in Hong Kong’s legal system as a whole —a vote of confidence that present circumstances suggest is no longer warranted.[57]   Potemkin dockets   Yet the reputational benefits that overseas judges provide to Hong Kong’s legal system are not accompanied by a corresponding ability to exercise meaningful oversight. As noted above, applications for leave to appeal to the HKCFA are handled entirely by Hong Kong judges—who, in recent years, have refused leave in politically controversial cases,[58] thereby removing such cases from the purview of overseas judges entirely.   Further, overseas judges do not engage in day-to-day oversight of judicial administration; nor do they appear to play a significant role in deciding what cases they sit upon. This gives rise to the risk that overseas judges will be assigned Potemkin dockets—case loads that studiously avoid any matter in which the Hong Kong or Beijing governments invoke ‘national security’. There are already signs that overseas judges are being kept away from ‘national security’ cases, despite the Chief Justice’s protestations to the contrary:[59] neither of the two NSL-related cases decided by the HKCFA to date involved any overseas judges at all.[60]   Conclusion: Potemkin Judges for a Potemkin Court   Developments since 2020 have made clear that Hong Kong’s post-NSL legal order is a dual state—one in which the Beijing and Hong Kong governments have meticulously limited the ability of the judiciary to exert any  moderating influence on the security state. The HKCFA’s NSL-related cases—neither of which involved overseas judges—are perhaps most charitably interpreted as reflections of that reality.   Yet Hong Kong’s overseas judges—judging by their statements of continued support for the HKCFA—appear not to acknowledge that fact. That should scarcely be surprising, given the extent to which they are insulated from Hong Kong’s constitutional realities. Much like arbitrators, overseas judges are flown in to hear individual cases; during their limited stays in Hong Kong, they largely remain within the floating world of the territory’s legal and political elite. They play no part in the day-to-day administration of the Hong Kong judiciary; nor do they have any role in deciding which cases reach the HKCFA in the first place.   For all that, however, Hong Kong’s overseas judges are not  arbitrators. They remain Hong Kong  judges, sworn to uphold the Basic Law; more significantly, their assumption of Hong Kong judicial office confers legitimacy not merely on the HKCFA, but on the territory’s legal system as a whole. Yet, as post-NSL developments have made painfully apparent, the reputational benefits they provide—primarily, it seems, to Hong Kong’s executive in their sales pitches for the territory—are not matched by any meaningful ability to hold that same executive to account. Given that reality, it is past time for the remaining overseas judges to acknowledge—as several of their brethren already have[61]—that their continued presence, and the credibility they thus provide to Hong Kong’s dual state, do far more harm than good. Alvin YH Cheung   Alvin YH Cheung practised as a barrister in Hong Kong between 2010 and 2013 and has written and spoken extensively about the territory’s constitutional and legal developments for over a decade. He is currently an Assistant Professor at Queen’s University Faculty of Law in Canada, and a Non-Resident Affiliate of NYU’s US-Asia Law Institute. Appendix A Remaining HKCFA overseas judges, by seniority of HKCFA appointment Name Year appointed Jurisdiction Concurrent or most recent former judicial appointments The Rt. Hon. Lord Hoffmann 1998 England & Wales, UK Lord of Appeal in Ordinary, UK House of Lords (1995-2009) The Rt. Hon. Lord Neuberger of Abbotsbury 2009 England & Wales, UK President, UK Supreme Court (2012-2017) The Rt. Hon. Lord Phillips of Worth Matravers 2012 England & Wales, UK President, UK Supreme Court (2009-2012) President, Qatar International Court and Dispute Resolution Centre (2012-2018) The Hon. Mr Justice William Montague Charles Gummow 2013 Australia Justice, High Court of Australia (1995-2012) The Hon. Mr Justice Robert French 2017 Australia Chief Justice, High Court of Australia (2008-2017) The Rt. Hon. Madam Justice Beverley McLachlin 2018 Canada Chief Justice, Supreme Court of Canada (2000-2017) The Hon. Mr Justice Patrick Anthony Keane 2023 Australia Justice, High Court of Australia (2013-2022) [1]  This account is a slightly abridged version of my summary of the NSL in   Alvin YH Cheung, ‘Unpalatable Realities, No Choices’ (2021) 19 International Journal of Constitutional Law 1154. [2]  One of the things the NSL does not include is any definition of ‘national security’. The Mainland’s own ‘National Security Law’, however, contains an expansive definition of ‘national security’: Article 2, National Security Law of the People’s Republic of China (‘National security refers to the relative absence of international or domestic threats to the state’s power to govern, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major national interests, and the ability to ensure a continued state of security’). [3]  Some of the highest-profile endorsements of the NSL betray ignorance of the NSL’s substantive content and the circumstances of its enactment:   see, eg, Jonathan Sumption, ‘Britain Should Avoid Undermining the Hong Kong Judiciary’ Times (London, 18 March 2021) < https://www.thetimes.co.uk/article/britain-should-avoid-undermining-the-hong-kong-judiciary-2j7nmft5d > accessed 10 February 2024 (current overseas judge Lord Sumption focusing on the ostensible guarantees of fundamental rights in NSL Article 4 to the exclusion of the remainder of its provisions); Xinhua News Agency, ‘Draft Law on Safeguarding National Security in HKSAR Respects Judicial Independence: British Barrister’ ( Macau Business , 22 June 2020) < https://www.macaubusiness.com/draft-law-on-safeguarding-national-security-in-hksar-respects-judicial-independence-british-barrister/ > accessed 10 February 2024 (former Hong Kong Director of Public Prosecutions Grenville Cross endorsing the draft NSL, apparently without having read it). [4]  See, eg, ‘Explainer: What is “Soft Resistance”?’ ( Hong Kong Free Press , 5 August 2023) < https://hongkongfp.com/2023/08/05/explainer-what-is-soft-resistance-hong-kong-officials-vow-to-take-a-hard-line-against-it-but-provide-no-definition/ > accessed 10 February 2024. Merely wearing a ‘seditious’ T-shirt is now grounds for arrest: Irene Chan, ‘Hong Kong National Security Police Charge Man Over Wearing Alleged ‘Seditious’ Shirt at Airport’ ( Hong Kong Free Press , 29 November 2023) < https://hongkongfp.com/2023/11/29/hong-kong-national-security-police-charge-man-over-wearing-alleged-seditious-shirt-at-airport/ > accessed 10 February 2024. [5]  See   ‘Tracking the Impact of Hong Kong’s National Security Law’ ( ChinaFile , 8 August 2023) < https://www.chinafile.com/tracking-impact-of-hong-kongs-national-security-law > accessed 10 February 2024. The NSL includes a presumption against bail: see   (n 48) and accompanying text. [6]  ‘Scrutiny on the bounty: The police in Hong Kong put a price on the heads of democracy activists’ Economist (London, 4 July 2023) < https://www.economist.com/china/2023/07/04/hong-kong-puts-a-price-on-the-heads-of-democracy-activists >. [7]  Cheung (n 1) 1157-1158. [8]  See generally Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship  (EA Shills trans, 2nd edn, OUP 2017). [9]  See (n 2). [10]  See further Hong Kong Rule of Law Monitor, ‘Hong Kong Rule of Law Report 2022’ ( HKRLM , 23 October 2023) < https://hkrlm.org/2023/10/23/rol-report-2022/ > accessed 10 February 2024; Jun Chan, Eric Yan-Ho Lai, and Thomas E Kellogg, ‘The Hong Kong 2019 Protest Movement: A Data Analysis of Arrests and Prosecutions’ ( Georgetown Center for Asian Law , October 2023) < https://www.law.georgetown.edu/law-asia/wp-content/uploads/sites/31/2023/10/GCAL-HK-2019-ARREST-DATA-REPORT-FINAL-OCT-2023.pdf > accessed 10 February 2024. [11]  The three judges who have resigned are James Spigelman (Australia—resigned 2020), Lord Reed of Allermuir PSC (UK—resigned 2022), and Lord Hodge DPSC (UK—resigned 2022): Stephen Dziedzic, ‘Australian James Spigelman Resigns as Judge of Hong Kong Appeals Court Over New National Security Law’ ( ABC News , 18 September 2020) < https://www.abc.net.au/news/2020-09-18/judge-quits-over-hong-kong-national-security-law/12679318 > accessed 10 February 2024; ‘Role of UK Supreme Court Judges on the Hong Kong Court of Final Appeal—Update’ ( UK Supreme Court , 30 March 2022) < https://www.supremecourt.uk/news/stories/role-of-uk-judges-on-the-hong-kong-court-of-final-appeal-update-march-2022.html > accessed 10 February 2024. In addition, Baroness Hale of Richmond (UK) declined to renew her appointment in 2021. Although Hale asserted that her decision was ‘not a comment on what’s going on [in Hong Kong]’, she pointedly confined her endorsement of the territory’s continued judicial independence to the realm of commercial law: Catherine Baksi, ‘Hale Quits Hong Kong Judicial Post’ ( Law Society Gazette , 4 June 2021) < https://www.lawgazette.co.uk/news/hale-quits-hong-kong-judicial-post/5108734.article > accessed 10 February 2024. A full list of Overseas Non-Permanent Judges who have not resigned or declined to renew their appointments, along with their previous and concurrent judicial appointments, can be found in Appendix A. [12]  Or, in one case—that of Mr Justice Patrick Keane of Australia—to assume office (in 2023); see Appendix A. [13]  Richard Raycraft, ‘Former Chief Justice McLachlin Says She’ll Stay on Hong Kong Court Despite Crackdown on Human Rights’ ( CBC News , 16 June 2022) < https://www.cbc.ca/news/politics/mclachlin-hong-kong-court-1.6491498 > accessed 10 February 2024. [14]  Chris Merritt, ‘Top judge Robert French defends judges sitting on Hong Kong courts despite Beijing crackdown’ ( The Australian , 10 July 2023) < https://www.theaustralian.com.au/nation/top-judge-robert-french-defends-judges-sitting-on-hong-kong-courts-despite-beijing-crackdown/news-story/83c3e8a2cdb8ee651a28de4c5dfa0a35 >   accessed 10 February 2024. [15]  A copy of the 2022 Opinion, an Addendum thereto, and a full list of signatories, can be found in Appendix B, available online at < https://www.cjlpa.org/cheung-appendix-b >. The author was part of a team of Hong Kong lawyers-in-exile (most of whom wish to remain anonymous) involved in drafting the Opinion and its Addendum. [16]  See , eg, Cora Chan, ‘The Legal Limits on Beijing’s Powers to Interpret Hong Kong’s Basic Law’ ( HKU Legal Scholarship Blog , 3 November 2016) < https://web.archive.org/web/20200922022431/http://researchblog.law.hku.hk/2016/11/cora-chan-on-legal-limits-of-beijings.html?showComment=1478241388490 > accessed 10 February 2024. [17]  The cases are Ng Ka Ling v. Director of Immigration  [1999] 2 HKCFAR 4, Ng Ka Ling v. Director of Immigration (No. 2) [1999] 2 HKCFAR 141, Lau Kong Yung v. Director of Immigration [1999] 2 HKCFAR 300, and Chong Fung Yuen v. Director of Immigration  [2001] 4 HKCFAR 211. [18]  Lau Kong Yung (n 17) paras 54-64 (Li CJ). [19]  Chong Fung Yuen  (n 17) part 6.1 (Li CJ). [20]  Cora Chan, ‘Thirty Years From Tiananmen: China, Hong Kong, and the Ongoing Experiment to Preserve Liberal Values in an Authoritarian State’ (2019) 17 International Journal of Constitutional Law 439, 446. [21]  2022 Opinion, paras 31-38. [22]  See   also Chan (n 20) 445 (‘A crucial obstacle to realizing the Basic Law’s guarantees is that the NPCSC can nullify them at will’.) [23] Hong Kong’s own ‘national security’ legislative proposals—hastily rolled out in late January 2024 for a one-month ‘consultation period’—are outside the scope of this article. [24]  See 2022 Opinion, para 43. [25]  NSL Article 60. [26]  ibid Articles 55-58. [27]  ibid Articles 55-58; 2022 Opinion, para 64. [28]  See , eg, ‘Quoth the NSL Judge’ ( Hong Kong Rule of Law Monitor , 5 December 2023) < https://hkrlm.org/2023/12/05/quoth-the-nsl-judge/ > accessed 10 February 2024; Samuel Bickett, ‘A Wolf in Judge’s Robes: The Show Trials of Judge Kwok Wai-Kin (Part 2)’ ( Hong Kong Law & Policy , 20 April 2023) < https://samuelbickett.substack.com/p/a-wolf-in-judges-robes-the-show-trials > accessed 10 February 2024. [29]  2022 Opinion, para 93 (addressing HKSAR v Ma Chun Man , the second NSL trial). [30]  ibid paras 90-93 (addressing Ma Chun Man as well as HKSAR v Tong Ying Kit , the first NSL trial). [31]  For more examples of invective by NSL-designated judges, see   (n 28). [32]  DCCC 854/2001 (10 September 2022), para 38. [33]  See , eg, ‘「批兩海外法官撐同志平權 或涉國家利益衝突 建制質疑又支持 終院 4 法官任命通過」’  Mingpao  (Hong Kong, 31 May 2018); Karen Cheung, ‘Pro-Beijing Lawmakers Query LGBT Stances of Overseas Judges Set to Join Hong Kong’s Top Court’ ( Hong Kong Free Press , 27 April 2018) < https://hongkongfp.com/2018/04/27/pro-beijing-lawmakers-query-lgbt-stances-overseas-judges-set-join-hong-kongs-top-court/ > accessed 10 February 2024. [34]  Primrose Riordan and Nicolle Liu, ‘Hong Kong Pro-Beijing Legislators Intervene in Judicial Appointment’ Financial Times  (London, 23 June 2021) < https://www.ft.com/content/56de7f6d-c89a-4857-b2f9-5d184fa3d096 > accessed 10 February 2024. [35]   See, eg, James Pomfret, ‘Explainer: How Hong Kong’s New Election Law Will Reshape Legislature’ Reuters (18 December 2021) < https://www.reuters.com/world/china/how-hong-kongs-new-election-law-will-reshape-legislature-2021-12-18/ > accessed 21 February 2024. [36]  Including overtly racist attacks on judges not of Chinese descent: see , eg, Alvin YH Cheung, ‘Hong Kong: Race-Baiting the Judiciary’ ( Lowy Interpreter , 9 February 2018) < https://www.lowyinstitute.org/the-interpreter/hong-kong-race-baiting-judiciary > accessed 10 February 2024. [37]  2022 Opinion, para 83(a). [38]  Tam Yiu-chung, ‘Mask ban ruling must be ‘rectified’ ( RTHK , 19 November 2019) < https://web.archive.org/web/20191220011028/https://news.rthk.hk/rthk/en/component/k2/1493192-20191119.htm > accessed 10 February 2024. [39]  2022 Opinion, para 80. [40]  This particularly unfortunate trend began under Rimsky Yuen’s tenure as Secretary for Justice between July 2012 and January 2018: Alvin YH Cheung, ‘Who’s to Blame for Hong Kong’s Weakening Rule of Law?’ ( ChinaFile , 23 January 2018) < https://www.chinafile.com/reporting-opinion/viewpoint/whos-blame-hong-kongs-weakening-rule-of-law > accessed 10 February 2024. [41]  2022 Opinion, paras 79 and 83. [42]  See , eg, Alvin YH Cheung, ‘The Express Rail Co-Location Case: The Hong Kong Judiciary’s Retreat’ ( Lawfare , 10 January 2019) < https://www.lawfaremedia.org/article/express-rail-co-location-case-hong-kong-judiciarys-retreat > accessed 10 February 2024. Other examples are discussed in paragraph 88 of the 2022 Opinion. [43]  See [2019] 1 HKLRD 292. [44]  As early as March 2018, Reuters reported that Hong Kong’s judges had privately expressed concerns that Beijing’s growing influence would have the effect of dictating the outcomes of politically sensitive cases: Greg Torode and James Pomfret, ‘Hong Kong’s Judges Voice Fears Over China Influence in Judiciary’ Reuters  (March 15, 2018) < https://www.reuters.com/article/us-hongkong-law/hong-kongs-judges-voice-fears-over-china-influence-in-judiciary-idUSKCN1GR0LD/ > accessed 10 February 2024. [45]  2022 Opinion, para 97. [46]  ibid paras 97(d), 113-114. [47]  Hong Kong Court of Final Appeal Ordinance, s 23. [48]  See   ibid s 18 (Appeal Committee). [49]  2022 Opinion, para 111. [50]  [2021] 6 HKC 622. [51]  2022 Opinion, para 95. [52]  Chris Lau, ‘Hong Kong Leader Carrie Lam Denies Interference Suggestion, After Reportedly Meeting Chief Justice Ahead of Jimmy Lai Hearing’ South China Morning Post (Hong Kong, 2 February 2021) < https://www.scmp.com/news/hong-kong/politics/article/3120192/hong-kong-leader-carrie-lam-categorically-denies > accessed 10 February 2024. [53]  HKSAR v. Lai Chee Ying  [2021] 24 HKCFAR 33. [54]  Remarks given by Rimsky Yuen SC at Chatham House, 15 October 2014 < https://www.info.gov.hk/gia/general/201410/15/P201410151108.htm > accessed 10 February 2024. [55]  Teresa Cheng, ‘SJ’s letter-to-editor of The Times’ ( HK Department of Justice , 18 October 2021) < https://www.doj.gov.hk/en/community_engagement/speeches/20211018_letter1.html > accessed 10 February 2024; Teresa Cheng, ‘SJ responds to the Wall Street Journal’ ( HK Department of Justice , 21 April 2021) < https://www.doj.gov.hk/en/community_engagement/speeches/20210421_letter1.html > accessed 10 February 2024. [56]  Jonathan Ames and Alvin Lum, ‘British Judges Ready to Enforce National Security Law in Hong Kong’ Times (London, 1 February 2022) < https://www.thetimes.co.uk/article/british-judges-required-to-hear-cases-under-hong-kong-security-law-7mlg6d6pm > accessed 10 February 2024. [57]   See, eg, Pak Yiu, ‘Hong Kong Neglects Judicial Nominations despite Case Backlog’ Nikkei Asia  (19 February 2024) < https://asia.nikkei.com/Spotlight/Hong-Kong-security-law/Hong-Kong-neglects-judicial-nominations-despite-case-backlog > accessed 21 February 2024 (noting a continued shortage of High Court judges, likely due to ripple effects from the NSL such as intensified political background checks and possible US sanctions making judicial office less appealing). [58]  2022 Opinion, para 111. [59]  Alvin Lum and Ben Rigby, ‘Hong Kong’s Foreign Judges Can Hear National Security Cases, Says City’s Chief Justice’ ( Global Legal Post , 31 January 2022) < https://www.globallegalpost.com/news/hong-kongs-foreign-judges-can-hear-national-security-cases-says-citys-chief-justice-39849009 > accessed 10 February 2024. [60]  The two cases are the Jimmy Lai case (n 53) and HKSAR v Lui Sai-yu  (FACC 7/2023, 22 August 2023). [61]  See (n 11) and accompanying text.

In January 2018, veteran actress Caroline Lagerfelt stepped into the John Jay College of Criminal Justice in New York City. She was there to see ‘Ode to the Sea’, an exhibition of artwork by detainees at Guantanamo Bay, which at that point had been open for 16 years, with no end in sight.   Lagerfelt had known about the atrocities committed at Guantanamo for some time. In fact, she had played British human rights lawyer Gareth Peirce in a play about Guantanamo 14 years earlier, and became a staunch advocate of the facility’s closure. As she walked through the exhibition, she was stunned by the beauty and intricacy of the works—Moath al Alwi’s ‘meticulously crafted ship’ from bits of cardboard and other found materials within the detention facility, Muhammad Ansi’s painting of two hands grasping the bars of a prison window with flowers.[1] Ms Lagerfelt later recounted that ‘one of the most powerful paintings is Vertigo at Guantanamo  by Ammar al Baluchi, a multi-coloured swirl that he painted to reflect the brain injury he suffered as a result of the brutal torture he underwent’.[2] Vertigo at Guantanamo  was, literally and figuratively, the product of years of torture, detention, interrogations, and ‘prosecution’ without end, all without basic medical or physical care. Ammar al Baluchi disappeared in Pakistan in April 2003. Soon thereafter, the CIA rendered him to the infamous ‘black sites’, where he would spend the next three and a half years entirely incommunicado, in violation of long standing international law.[3] His family had no idea where he was, and he had no news of them during that time. Former detainee Muhammad Ansi depicted the agony of incommunicado detention in his artwork. Mr al Baluchi’s journey towards art creation, like Mr Ansi and many of the Muslim men brutalized in US custody, began with his torture. Art Depicting Torture   The black site codenamed COBALT   was universally considered to be the worst of the secret prisons. Described by one CIA interrogator as ‘a dungeon’,[4] detainees at the site ‘were kept in complete darkness and constantly shackled in isolated cells with loud noise or music and only a bucket to use for human waste ’. [5] COBALT was the first black site to which Mr al Baluchi was rendered by the CIA.   In the film Zero Dark Thirty , Mr al Baluchi is portrayed as the fictional ‘Ammar’, being tortured at COBALT for information that would eventually lead to the capture of Osama bin Laden.[6] While no such link exists between Mr al Baluchi’s CIA interrogations and bin Laden,[7] the torture techniques depicted were very real. Because filmmakers Kathryn Bigelow and Mark Boal had sought assistance from the CIA for the film, the CIA obliged with details about Mr al Baluchi’s torture that were classified at the time, in order to make the case before a wide audience that the torture program had yielded results.[8] In the below drawing, fellow CIA detainee Abu Zubaydah illustrated one method of water torture implemented by the CIA, among many that were used in addition to the infamous ‘waterboarding ’— use of a tarp to mock-drown the men.[9] Before its portrayal in Zero Dark Thirty , use of the tarp for water torture was unknown by the public who by then had heard reports about waterboarding for years.[10] Stunningly, it was also unknown to counsel for Mr al Baluchi until the film was released (despite counsel holding Top Secret security clearances), due to the government’s years-long refusal to disclose information about the torture programme to the torture victims they were seeking to prosecute.[11] But the men remembered, and nea rly two decades after the torture techniques were used at the black sites, Abu Zubaydah could illustrate them at Guantanamo with such detail that ‘the faces of the CIA and FBI agents have been redacted to protect their identities’.[12]   The techniques that left Mr al Baluchi with the worst physical damage was ‘walling’, described in as benign terms as possible by CIA in the 2005 memorandum from Steven G Bradbury:   Walling is performed by placing the detainee against what seems to be a normal wall but is in fact a flexible false wall. See Techniques at 8. The interrogator pulls the detainee towards him and then quickly slams the detainee against the false wall. The false wall is designed, and a c-collar or similar device is used, to help avoid whiplash or similar injury. See id.  The technique is designed to create a loud sound and to shock the detainee without causing significant pain.[13]   In stark contrast to this description, this is how the CIA described Mr al Baluchi’s walling in a previously-classified internal report.[14] Dr James Mitchell, one of the architects of the CIA torture program, himself criticised the manner in which Mr al Baluchi was walled, stating that his abuse was ‘excessive’ and that he was ‘used as a training prop’[15]—essentially, a human subject for experimentation by would-be interrogators, in further violation of international law.[16] Abu Zubaydah depicted the horrifying reality of walling—including the accompanying forced nudity and ‘facial slaps’, in another drawing from Guantanamo.17] Mr al Baluchi himself described the nightmare of his walling in a rare declassified statement.[18] The CIA OIG concluded that in fact, it was ‘understandable’ that Mr al Baluchi claimed to have been tortured,[19] and that the techniques used on him were both ‘excessive’ and unauthorised—not a unique occurrence at the black sites. Particularly regarding his walling, which damaged his brain, the CIA OIG itself found that ‘a session in which the several interrogators had to take turns walling the much smaller detainee because they became fatigued suggests…that Ammar might reasonably feel that he was beaten ’. [20]   Renditions among the sites were also acts of torture, although because the CIA deliberately eschewed documentation, there are ‘few CIA records detailing the rendition process for detainees and their transportation to or between detention sites’.[21] The redacted SSCI report summary states that:   The detainees wore large headsets to eliminate their ability to hear, and these headsets were typically affixed to a detainee’s head with duct tape that ran the circumference of the detainee’s head. CIA detainees were placed in diapers and not permitted to use the lavatory on the aircraft. Depending on the aircraft, detainees were either strapped into seats during the flights, or laid down and strapped to the floor of the plane horizontally like cargo  [22]   Mr al Baluchi was rendered among five different black sites between 2003 and 2006, and subjected to this process each time.[23] Abu Zubaydah recalled the renditions in a series of drawings published in 2023:[24] By the time Mr al Baluchi was finally rendered to Guantanamo Bay in 2006, CIA officials remarked that he was ‘fearful and anxious’, ‘consumed with uncertainty of his position’ and what would happen to him once his ‘intelligence value’ was exhausted ’. [25] It would turn out that the physical and psychological damage inflicted on Mr al Baluchi during his years in CIA black sites was permanent.   Abu Zubaydah’s depictions of the torture techniques as he, Mr al Baluchi, and dozens of other detainees experienced them, were among the first that the public has been able to access; actual images from the black sites and rendition program remain classified. Although the highly-redacted SSCI report summary was released in 2014, and the CIA OIG report about Mr al Baluchi’s torture was made public in 2022, such artwork enables broader and more visceral understanding of the United States’ torture program me— for which there has been no accountability to date.[26]   Art as Therapy   Torture at the black sites left Mr al Baluchi with ‘abnormalities indicating moderate to severe brain damage’ in the parts of his brain affecting memory formation, retrieval, and behavioural regulation; moderate to severe anxiety, depression, and Post-Traumatic Stress Disorder, in addition to a host of other physical ailments including a spinal tumour.[27] Despite the serious medical conditions suffered by Mr al Baluchi and the other detainees, the United States has consistently refused, over two decades, to provide proper medical care at Guantanamo Bay.[28] The United Nations Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms has found this long-standing refusal to constitute ‘at a minimum cruel, inhuman, and degrading treatment’.[29] Four international NGOs—Amnesty International, the World Organisation Against Torture, the Association for the Prevention of Torture, and the International Commission of Jurists—issued an unprecedented joint statement in December 2022 finding that the deprivation of medical care for Mr al Baluchi ‘constitutes a[n ongoing] violation’ of the Convention Against Torture and the ICCPR.[30]   Perversely, the failure of medical care at Guantanamo is responsible for Mr al Baluchi’s creation of Vertigo at Guantanamo , one of the ‘most popular’ artworks at the ‘Ode to the Sea’ exhibition.[31] The cognitive effects of his torture were sometimes impossible to explain in words. Vertigo  was one way of showing how his torture had affected his everyday life, such that his counsel could consult independent medical specialists outside of Guantanamo.[32] It was also a method of self-therapy for Mr al Baluchi, who has never received complex care for his PTSD or other conditions. Art psychotherapist Tony Gammidge explains that ‘the art making process is fundamentally a humanising activity which enables connection, empathy, responsibility, and communication…participants report that art making is [important] as it acknowledges their creativity, imagination and ultimately their humanity’.[33] Mr al Baluchi’s Vertigo at Guantanamo  was an expression of his humanity and recognised as such. Aaron Hughes, a former US Army sergeant who created the ‘Tea Project’ (a series of exhibitions and performances related to detention, and including artwork from Guantanamo Bay),[34] described how:   Full of bright colours and swirling lines, [ Vertigo at Guantanamo ] left me off balance. It was introspective and reflective, a work of internal exploration of trauma. It highlighted the chaotic feeling that I have personally had in the midst of the anxiety attack triggered by past trauma. The fact that humans react to structural violence in similar ways is important to uplift. It highlights our shared humanity.[35]   That shared humanity was also poignantly highlighted by the title of the John Jay exhibition: ‘Ode to the Sea’. At Guantanamo Bay, the sea is visible from nearly everywhere on the base, except within the detention camps. Still, the detainees know that it’s there.[36] As explained by former detainee Mansoor Adayfi, who was released in 2016, ‘[t]he sea was our first and enduring friend, assuring us that everything would be fine. We sang for the sea, wrote poems about our steadfast companion, and painted it and its beautiful waves in our minds and in our artwork. The sea became a symbol of hope, resilience, and resistance’.[37]   Moath al-Alwi, still detained at Guantanamo despite being cleared for release, was one of the artists who depicted the sea through his astonishing models of ships, created entirely of found materials at Guantanamo.[38] ‘When I start an artwork, I forget I’m in prison’, said Mr al-Alwi in a 2021 documentary about his artistic process. ‘When I made the sails and tied the rope, I felt as if I were in the middle of the sea. I felt as if waves were hitting the ship from everywhere, and I felt I was rescuing myself’.[39] Khalid Qasim, who remains detained at Guantanamo despite being cleared for release, depicted the sea in a more sinister way in ‘Untitled: Fins in the Water’, with shark fins representing the dangers he faces.[40] Abdalmalik Abud, another detainee who was released in 2016, agreed with the therapeutic nature of his art creation: ‘Wrongfully imprisoned…I painted worlds beyond my cage’.[41] In particular, when he thought of his family, he would draw ‘to forget that he was imprisoned’.[42]    As Johanna Buwalda, a therapist working with torture survivors, states, ‘art making can improve self-esteem, emotional resilience, spiritual wellbeing, physical health, and can affect post traumatic growth…[meaning that the victims] not only survived the trauma, but were also able to make positive changes in their lives as a result of the traumatic event’.[43] Several former detainees, including Mr Adayfi and Mr Abud, have exhibited and sold their artwork following their release, and Mr Adayfi is a steadfast campaigner for the closure of Guantanamo Bay.[44]   Mr al Baluchi is currently in his 21st year of arbitrary detention in US custody—the illegality of which was concluded by the United Nations Working Group on Arbitrary Detention in 2017.[45] Nearly 15 years of that illegal imprisonment was at Camp 7, one of the most secretive facilities in the world, that held only the detainees transferred from the CIA black sites, whose memories of their torture remain largely classified to this day.[46] Despite—or perhaps because of—the extraordinary limitations placed on Mr al Baluchi’s life in detention, he also looks to the sea for inspiration in his artwork, although the restrictions have also curtailed his ability to produce art in the same quantity as detainees at other camps.[47] During the ‘Ode to the Sea’ exhibition, the curator, Prof Erin Thompson at John Jay, corresponded with professionals from around the world who:   work on topics including…psychology and psychiatry, [and] medicine (including neuroscience) …These experts were especially interested in examining Mr al Baluchi’s artwork, as a means of understanding his past and his current situation. In particular, experts in neuroscience, brain injuries, torture, and art therapy told [Prof Thompson] that Mr al Baluchi’s artwork was a valuable source of information about himself and about these topics in general.[48]   Following the ‘Ode to the Sea’ exhibition, the Department of Defense implemented a new policy prohibiting detainee artwork from leaving the island, which was in effect until 2023[49]—‘solely because [the United States was] embarrassed by the spotlight on continuing human rights violations at Guantanamo’.[50] Mr al Baluchi, in his Top Secret camp, was also prohibited from exhibiting any new artwork, a policy that remains in effect today.[51]   Art as Mitigation   In 2017, eleven years into his illegal detention at Guantanamo Bay and fourteen years since his initial disappearance, Mr al Baluchi created a new piece of art. Titled Hallway , it is a work of single-point perspective in black, white, and shades of grey that conveys a feeling of dread. Following a 2018 amendment to the rules about release of detainee information,[52]  Hallway  cannot currently be shared publicly. But Hallway  raised anew the issue of torture and its effects at Guantanamo, and the impact on the case for which the United States seeks to execute Mr al Baluchi. Mr al Baluchi is a torture victim whose artwork depicts, in part, his long-term arbitrary detention, first in CIA black sites, and at Guantanamo Bay since 2006.[53]  Despite the 2017 order for immediate release by the UN Working Group on Arbitrary Detention, today he remains one of four defendants charged jointly before an offshore ‘military commission’ at Guantanamo Bay, in the case of United States v. Khalid Sheikh Mohammad, et al . The Guantanamo military commissions are a failed experiment and a stain on the concept of ‘justice’; they illegally target only non-US citizens, Muslim males, and the handful of convictions over the decades have nearly all been overturned on appeal because of due process violations.[54] Mr al Baluchi’s case has spent more than 11 years in pre-trial hearings centring around the government’s refusal to comply with their legal obligation to disclose evidence of his torture.[55] During that time, Mr al Baluchi’s physical and mental health have deteriorated precipitously, as described. Hallway may well be interpreted as a depiction of current violations, as well as the untreated effects of the previous torture.   It is not possible to have any kind of fair trial at Guantanamo Bay.[56] Mr al Baluchi and the other 29 torture victims remaining at Guantanamo should, as the United Nations Working Group on Arbitrary Detention has repeatedly demanded,[57] be transferred out, hopefully to countries that can provide them with the medical care they desperately need.[58] But if Mr al Baluchi’s legal proceedings continue, ‘developing mitigation evidence and making a case’ for his life will be ‘one of the most important tasks defence lawyers must handle’.[59] Among the factors that must be considered by the defence in mitigation, the American Bar Association mandates legal team members to prepare and gather ‘demonstrative evidence, such as photographs, videotapes, and physical objects (eg trophies, artwork, military medals), and documents that humanise the client or portray him positively’.[60] Margaret O’Donnell, a capital defence attorney representing a number of inmate-artists on US federal death row, has commented that client art can be a ‘significant part of [their] mitigation and story of redemption’, should Mr al Baluchi be convicted of any charges before the military commission.[61]   Because Mr al Baluchi retains this right to develop a mitigation case, Mr al Baluchi’s legal team has consistently and vigorously opposed the ongoing restrictions on exhibition of his art beyond the pieces displayed in ‘Ode to the Sea’. Indeed, the exhibition was a brief glimpse into the power of public discussion about the ongoing crisis at Guantanamo. Phyllis Rodriguez, whose son Gregory was tragically killed in the North Tower on 11 September 2001, wrote that ‘My first response to Mr al Baluchi’s work was of deep sadness, particularly when learning that he had created it do describe his state of mind as a result of the torture he endured before being transferred to Guantanamo…I also felt empathy for him as a human being’.[62] Ms Rodriguez elaborated that when she spoke to other observers of the exhibit, ‘most felt empathy for Mr al Baluchi, and anger that our nation is responsible for treating individuals in such a way as to permanently damage them physically and emotionally’.[63] Professor Thompson confirmed the mitigating effects of Mr al Baluchi’s artwork: A wide variety of people, other than scholars, visited the exhibition. I had the opportunity to discuss Mr al Baluchi’s artwork with veterans, former Guantanamo guards, and many family members of victims of the September 11, 2001 terrorist attacks. They told me that looking at Mr al Baluchi’s artwork was a deeply moving experience that prompted them to think about their own and their loved one’s lives, the best ways of obtaining justice for the victims of terrorist attacks and of preventing terrorism in the future, and even about what it means to be human.[64]   Indeed, given the enormous classification barriers preventing public access to information about Mr al Baluchi, his hope in participating in the ‘Ode to the Sea’ exhibition was that the exhibition visitors would—simply—realise that he is a human being. The eruption of public attention around his torture,[65] arbitrary detention, and the many ongoing violations at Guantanamo Bay, was proof that, if the US government reverses its draconian policy, Mr al Baluchi’s ability to make and show his art may someday help to save his life. As Ms Lagerfelt declared, ‘These men have had their words, memories, and nightmares silenced. Let their paintings bear silent and eloquent witness’.[66] Alka Pradhan Alka Pradhan is a human rights attorney who has represented Guantánamo detainees since 2013. She is currently counsel for Ammar al Baluchi in the case of United States v. Khalid Sheikh Mohammad, et al . This article does not represent the opinion of the US Department of Defense and does not confirm or deny information considered to be classified by the US government. [1]  Appellate Exhibit 563, ‘Mr al Baluchi’s Motion to Invalidate Restrictions on Public Dissemination of Mr al Baluchi’s Artwork ’ (2018) Attachment F Declaration of Caroline Lagerfelt  < https://www.mc.mil/Portals/0/pdfs/KSM2/KSM%20II%20(AE563(AAA)).pdf > accessed 28 December 2023 . [2]   ibid. [3] UN Human Rights Committee (HRC), CCPR General Comment No 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment (10 March 1992) < https://www.refworld.org/docid/453883fb0.html > accessed 18 December 2023 ( ‘ Provisions should…be made against incommunicado detention’) [ICCPR General Comment 20]; United Nations Human Rights Council (formerly the Commission on Human Rights), Resolution 2003/32  [ 14]; See also UN Doc CCPR/C/101/D/1761/2008 (24 Mar ch  2011) (finding that the mental stress resulting from incommunicado detention and disappearance was ill-treatment or torture); Article 19 v. Eritrea  [2007 ] AHRLR 73 Communication 275/03 (finding that incommunicado detention for more than two years constitute torture and ill treatment).  [4]  Redacted Executive Summary of the Report of the Senate Select Committee on Intelligence (9 December 2014) xiii , Redacted SSCI Report Summary  < https://www.intelligence.senate.gov/sites/default/files/publications/CRPT-113srpt288.pdf > accessed 30 December 2023. [5]   ibid.   [6] Julian Borger, ‘ CIA Gave Details of 9/11 Suspect’s Secret Torture to Film-Makers, Lawyers Say ’ Guardian   (London, 22 Fe bruary  2019)  < https://www.theguardian.com/law/2019/feb/22/ammar-al-baluchi-pre-trial-911-cia-guantanamo-bay-torture > accessed 28 December 2023 . [7]  CIA Office of the Inspector General, ‘Report Concerning Allegations of Torture made by Ammar al Baluchi’ (2008) 58 < https://www.courtlistener.com/docket/4210497/225/3/al-baluchi-v-gates/ >  accessed 29 December 2023: ‘Ammar fabricated the information he provided when undergoing EITs. He later admitted to his interrogators/debriefers that he was terrified and lied to get Agency officers to stop the measures’. [8]  Jason Leopold and Ky Henderson,  ‘ Tequila, Painted Pearls, and Prada: How the CIA Helped Produce Zero Dark Thirty ’   ( Vice News , 9 Sep tember  2015) < https://www.vice.com/en/article/xw3ypa/tequila-painted-pearls-and-prada-how-the-cia-helped-produce-zero-dark-thirty > accessed 29 December 2023 [9]  Ed Pilkington ‘‘ The Forever Prisoner’: Abu Zubaydah’s Drawings Expose the US ’s Depraved Torture Policy ’ Guardian   ( London, 11 May 2023)  < https://www.theguardian.com/law/2023/may/11/abu-zubaydah-drawings-guantanamo-bay-us-torture-policy > accessed 28 December 2023.   [10]   ‘ US: Ex-Detainees Describe Unreported CIA Torture’ ( Human Rights Watch , 3 Oct ober  2016)  < https://www.hrw.org/news/2016/10/03/us-ex-detainees-describe-unreported-cia-torture > accessed 27 December 2023. [11]   Borger (n 6) [12]   ibid. [13]   ‘ Memorandum for John Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G Bradbury, Principal Deputy Assistance Attorney General, Office of Legal Counsel, Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques That May Be Used in the Interrogation of High Value Al Qaeda Detainees’ [2005 Bradbury Memo]  14 < https://www.justice.gov/sites/default/files/olc/legacy/2013/10/21/memo-bradbury2005.pdf > accessed 28 December 2023. [14]  CIA Office of the Inspector General (n 7) 20. [15]  Sacha Pfeiffer, ‘CIA Used Prisoner as ‘Training Prop’ For Torture, Psychologist Testifies’ ( NRP , 23 Jan uary  2020)   < https://www.npr.org/2020/01/23/799130233/psychologist-who-helped-create-interrogation-methods-says-cia-may-have-gone-too > accessed 30 December 2023 . [16] International Covenant on Civil and Political Rights (ICCPR) 1976, Article 7; see also General Comment 20 ‘[S]pecial protection in regards to such experiments is necessary in case of persons not capable of giving valid consent, and in particular those under any forms of detention or imprisonment. Such persons should not be subjected to any medical or scientific experimentation that may be detrimental to their health’. The United States prosecuted medical experimentation at Nuremberg in the infamous case of USA v. Karl Brandt et al  (the ‘Doctors’ Trial’), and Professor George Annas has written about the connection between the convictions stemming from this case and the culpability of US actors in the torture programme. See George J Annas, ‘The Legacy of Nuremberg Doctors’ Trial to American Bioethics and Human Rights’ 10 MINN. J.L. SCI. & TECH. 19 (2009) < https://scholarship.law.umn.edu/mjlst/vol10/iss1/4 > accessed 30 December 2023. [17]   Pilkington (n 9). [18]  Kit Klarenberg, ‘CIA Files Confirm Guantanamo Bay Torture Program’s MK Ultra Roots’ ( Mint Press News , 21 Apr il 2022)  < https://www.mintpressnews.com/cia-guantanamo-bay-torture-programs-mkultra-roots/280275/ > accessed 27 December 2023. [19]   CIA Office of the Inspector General (n 7) 59, 64 , 65. [20]   ibid 64. [21]  Redacted SSCI Report Summary (n 4) 64  note 318. [22]   ibid. [23]  Alka Pradhan,  ‘ Submission to the U.N. Human Rights Committee Concerning Ongoing detention and Military Commissions Instituted by the United States at Guantanamo Bay’ ( Just Security , 3 Jul y 2023) < https://www.justsecurity.org/wp-content/uploads/2023/10/Team-Baluchi-ICCPR-Shadow-Report.pdf > [24]   Pilkington (n 9). [25]   CIA Office of the Inspector General (n 7)  60. [26]  Alka Pradhan, ‘It’s Time to Hold Lawless Trump Officials Accountable, and Right the Wrongs from the Bush-era Torture Program’ ( Business Insider , 16 Dec ember  2020) < https://www.businessinsider.com/biden-administration-punish-trump-officials-bush-torture-obama-lawbreaking-accountable-2020-12 > accessed 28 December 2023. [27]  Umar A Farooq, ‘Guantanamo Detainee Used as ‘Prop’ for Torture Losing Battle for Medical Care’ ( Middle East Eye , 7 Oct. 2022)  < https://www.middleeasteye.net/news/ailing-guantanamo-detainees-legal-battle-medical-care > accessed 15 December 2023 ; Moustafa Bayoumi, ‘ This 9/11 Suspect and ‘Torture Prop’ has Spent 20 Years at Guantanamo. Is he Nearing a Deal with the US?’ Guardian  (London, 17 May 2023) < https://www.theguardian.com/us-news/2023/may/16/ammar-al-baluchi-guantanamo-bay-torture > accessed 15 December 2023. [28]  Yumna Rizvi, ‘Guantanamo Detainees May Start Dying if the US Does Not Act’ ( Al Jazeera , 29 Apr il  2023) < https://www.aljazeera.com/opinions/2023/4/29/guantanamo-detainees-may-start-dying-if-the-us-does-not-act > ; Alka Pradhan, ‘The United States Faces a Test on Guantanamo Bay in Geneva’ ( Lawfare , 16 Oct. 2023)  < https://www.lawfaremedia.org/article/the-united-states-faces-a-test-on-guantánamo-bay-in-geneva > ; Carol Rosenberg, ‘ Red Cross Expresses Alarm Over Detainee Health at Guantanamo Bay ’  The New York Times  (New York, 21 April 2023)  < https://www.nytimes.com/2023/04/21/us/politics/red-cross-gitmo-health.html > ; Center for Victims of Torture, ‘Deprivation and Despair: The Crisis of Medical Care at Guantanamo Bay’ (June 2019)  < https://www.cvt.org/wp-content/uploads/2023/06/2019_phr-medical-report_v5_0.pdf > all accessed 15 December 2023. [29]  United Nations Special Procedures, ‘Technical Visit to the United States and Guantánamo Detention Facility by the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism ’ SRCT Report (14 June 2023)  6 < https://www.ohchr.org/sites/default/files/documents/issues/terrorism/sr/2023-06-26-SR-terrorism-technical-visit-US-guantanamo-detention-facility.pdf > accessed 27 December 2023. [30] ‘US Government Must Provide Necessary Medical Treatment for Guantánamo Detainee Ammar al Baluchi, a Victim of its Torture Programme’ (ICJ, 6 December 2022) < https://www.icj.org/us-government-must-provide-necessary-medical-treatment-for-guantanamo-detainee-ammar-al-baluchi-a-victim-of-its-torture-programme/ > accessed 28 December 2023. [31]   ‘ Art from Behind the Walls of Guantanamo’ (C BS News , 21 January 2018)  < https://www.cbsnews.com/news/art-from-behind-the-walls-of-guantanamo/ > accessed 29 December 2023. [32]  Art from Guantanamo, Artwork on View: Ammar al Baluchi ’ ( Art From Guantanamo Bay ) < https://www.artfromguantanamo.com/artwork >;   Rick Karr, ‘ Current and Former Guantanamo Bay Detainees Create ‘Ode to the Sea ’ Art Exhibit’ ( NPR , 20 November 2017)  < https://www.npr.org/2017/11/20/565506357/current-and-former-guantanamo-bay-detainees-create-ode-to-the-sea-art-exhibit > all accessed December 2023. [33]   Appellate Exhibit 563 (n 1) att K (Declaration of Tony Gammidge) [34]  See eg Aaron Hughes, ‘Tea Project’ < http://www.tea-project.org/tea-project#project > accessed 10 March 2024; ‘In a Cup of Tea, Hope’ ( Voice of America , 30 August 2018) < https://www.voanews.com/a/in-a-cup-of-tea-hope-aaron-hughes/4551098.html > accessed 10 March 2024. [35]   Appellate Exhibit 563 (n 1) att  G (Declaration of Aaron Hughes) . [36]   Mansoor Adayfi, ‘In Our Prison On the Sea’ The New York Times  (New York, 15 September 2017) < https://www.nytimes.com/2017/09/15/opinion/sunday/guantanamo-early-years-sea.html > accessed 30 December 2023. As Adayfi put it, ‘It was hard not seeing the sea, despite its being only a few hundred feet away from us. At the recreation area, if we lay on our stomach, we could get glimpses of the sea through small openings below the tarp. When the guards found out, they blocked the openings’.  [37]  Mansoor Adayfi, ‘I Spent around 15 years at #Guantánamo, where the sea was a constant presence…’ ( Twitter , 11 December 2023) < https://twitter.com/MansoorAdayfi/status/1734171165743067546 > accessed 10 March 2024. [38]  Art from Guantanamo, ‘Artists: Moath al-Alwi ’ ( Art from Guantanamo ) < https://www.artfromguantanamo.com/moath-alalwi > accessed 30 December 2023. [39]   Dara Kell and Veena Rao, ‘ He is Imprisoned at Guantanamo. Making Art is His Escape’  The New York Times (New York 6 July 2021)  < https://www.nytimes.com/2021/07/06/opinion/a-ship-from-guantanamo-bay-art.html > accessed 29 December 2023. [40] Alexandra Schwartz ,  ‘ The Disarming Paintings Made by Guantanamo Detainees’  The New Yorker   (New York, 13 Dec ember 2017)  < https://www.newyorker.com/culture/cultural-comment/the-disarming-paintings-made-by-guantanamo-detainees >;  Art from Guantanamo, ‘Artists: Khalid Qasim’ ( Art from Guantanamo ) < https://www.artfromguantanamo.com/khalid-qasim-1 > all accessed 29 December 2023. [41]   Abd Almalik Art < https://www.abdalmalikart.com > accessed 29 December 2023 . [42]  Art from Guantanamo, ‘Artists: Abd Almalik ’ ( Art from Guantanamo )  < https://www.artfromguantanamo.com/abd-almalik > accessed 30 December 2023. [43]   Appellate Exhibit 563 (n 1) att  J (Declaration of Johanna Buwalda) . [44]  See eg  ‘ Mansoor’s Ride to Close Guantanamo ’ ( CAGE ) < https://raise.cage.ngo/campaign/mansoors-ride-to-close-guantanamo/r/recYNPZ2qfUUC72Ws > accessed 28 December 2023;  Andy Worthington,  ‘ A Glimpse of Light in the Darkness, As Former Guantanamo Prisoner Mansoor Adayfi is Welcomed to the UK Parliament’ (22 November 2023)  < https://www.andyworthington.co.uk/2023/11/22/a-glimpse-of-light-in-the-darkness-as-former-guantanamo-prisoner-mansoor-adayfi-is-welcomed-to-the-uk-parliament/ > accessed 28 December 2023. [45]  United Nations Working Group on Arbitrary Detention, Opinion 89/2017 Concerning Ammar al Baluchi, < https://www.ohchr.org/sites/default/files/Documents/Issues/Detention/Opinions/Session80/A_HRC_WGAD_2017_89.pdf > accessed 10 March 2024.  The WGAD called for his immediate release and for provision of ‘appropriate physical and psychological rehabilitation for the torture he has suffered ’. The United States has never responded. [46]   Carol Rosenberg, ‘ Inside the Most Secret Place at Guantanamo Bay ’ The New York Times  (New Y ork, 14 Mar ch  2020)  < https://www.nytimes.com/2020/03/14/us/politics/guantanamo-bay-camp-7-911.html > accessed 30 December 2023. [47]   Sarah Cascone, ‘ A Guantanamo Detainee is Fighting the U.S. Government for the Right to Display His Art’ ( Artnet News , 6 April 2018) < https://news.artnet.com/art-world-archives/guantanamo-detainee-art-1260170 > accessed 28 December 2023. [48]   Appellate Exhibit 563 (n 1) att  E [49]  Mansoor Adayfi, ‘For All of Us Detained at Guantanamo, Making Art was a Lifeline. Why Won’t Joe Biden Let Us Keep Our  Work?’  Guardian (London, 11 March 2023)  < https://www.theguardian.com/commentisfree/2023/mar/11/guantanamo-detained-art-joe-biden-work-state > accessed 28 December 2023. [50]   Cascone (n 47) [51]   Appellate Exhibit 563 (n 1); Sarah Cascone, ‘ A Guantanamo Detainee Will Not Be Allowed to Show His Art, Military Judges Rule’ ( Arnet : News , 15 May 2018)  < https://news.artnet.com/art-world-archives/guantanamo-prisoner-art-1286030 > accessed 30 December 2023. [52]   Appellate Exhibit 563 (n 1). [53]  United Nations Working Group on Arbitrary Detention (n 45). [54]  See eg Steve Vladeck, ‘It’s Time to Admit that the Military Commissions Have Failed’ ( Lawfare , 16 Apr il 2019)  < https://www.lawfaremedia.org/article/its-time-admit-military-commissions-have-failed > ; ‘The Failed Military Commissions’ ( The Center for Victims of Torture , 19 July 2023)  < https://www.cvt.org/what-we-do/advocating-for-change/legacy-of-us-torture/the-failed-military-commissions/ > all accessed December 2023. [55]  Kasey McCall-Smith, ‘How Torture and National Security Have Corrupted the Right to Fair Trial in the 9/11 Military Commission’ (2022) 27(1) Journal of Conflict and Security Law 83-116. [56]  Eg Sacha Pfeiffer, Monika Evstatieva ,  ‘ Onetime Supporter of Guantanamo’s Military Court Now Says It Was ‘Doomed ’’  ( NPR , 3 Apr il  2023)  < https://www.npr.org/2023/04/03/1167339647/ted-olson-guantanamo-sept-11-plea > ; Leila Murphy, ‘For 9/11 Families, Plea Deals Are the Only Way Forward’ ( Just Security , 7 February 2023)  < https://www.justsecurity.org/85045/for-9-11-families-plea-deals-are-the-only-path-forward/ > all accessed December 2023. [57]  United Nations Working Group on Arbitrary Detention, Opinion 50/2014 Concerning Mustafa al-Hawsawi, < https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/024/84/PDF/G1502484.pdf?OpenElement >; United Nations Working Group on Arbitrary Detention, Opinion 66/2022 Concerning Zayn al-Abedin Muhammad Husayn (Abu Zubaydah) < https://www.ohchr.org/sites/default/files/documents/issues/detention-wg/opinions/session95/A-HRC-WGAD-2022-66-Advance-Edited-Version.pdf > ; United Nations Working Group on Arbitrary Detention, Opinion 72/2022 Concerning Abd al-Rahim Hussein al-Nashiri  < https://www.ohchr.org/sites/default/files/documents/issues/detention-wg/opinions/session95/A-HRC-WGAD-2022-72-USA-Advance-Edited-Version.pdf > all accessed 29 December 2023. [58]  Carol Rosenberg , ‘ UN Investigators Protest to U.S. Over Health Care at Guantanamo Bay ’ The New York Times  (New York, 26 Ma rch  2023) < https://www.nytimes.com/2023/03/26/us/politics/un-guantanamo-bay-health-care.html > accessed 30 December 2023. [59]  Robin M Maher, ‘The ABA and the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases ’ (2008) 36(3)   Article 5 Hofstra Law Review < https://scholarlycommons.law.hofstra.edu/hlr/vol36/iss3/5/ > accessed 29 December 2023. [60]  American Bar Association, Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (2008)  < https://www.americanbar.org/groups/committees/death_penalty_representation/resources/aba_guidelines/2008-supplementary-guidelines/ > accessed 30 December 2023. [61]   Appellate Exhibit 563 (n 1) att  H (Declaration of Margaret O’Donnell) . [62]   ibid att C (Declaration of Phyllis Rodriguez). [63]   ibid. [64] ibid att D (Declaration of Erin Thompson). [65] ibid ‘[T]he exhibit result[ed] in more than 200 news, radio, and television reports in 12 languages . . . Mr al Baluchi’s artwork was displayed in almost all of these reports’. [66]   ibid  att F (Declaration of Caroline Lagerfelt).

Introduction[1]   Why have Palestinian Bedouin youth in the Jerusalem periphery disappeared? This has been a consistent question in the minds of researchers working with Al-Quds University Human Rights Clinic (AQHRC). The AQHRC has been working with Palestinian Bedouin communities in the southeast Jerusalem periphery since 2014. These communities are among the most vulnerable communities to Israeli settler colonialism in all of its components; land expropriation, displacement, and imposition of an apartheid system, as will be demonstrated shortly. Over the past ten years, despite making concerted and consistent engagement with these communities, AQHRC has failed in engaging young men in the vast majority of activities, including research, advocacy, and awareness-raising workshops, to name a few.   This observation was corroborated while interviewing a 37-year-old Bedouin man in a Bedouin community near Jerusalem. The field research team of AQHRC asked him about the whereabouts of young Bedouin men, and his response was: ‘we rarely see them as well…if it is a wedding, or a social event you will see 300 young men but otherwise you will barely see one of them, it is like they have just ‘disappeared’ as if they rode a donkey or a car and went deep into the desert’.[2] This statement on its own gave rise to several other questions. Why would the Bedouin young men appear in weddings or social events and not in political activities? Why are they absent from the public sphere and the political arena of their communities despite the imminent threat of eviction and demolition of their homes by the Israeli authorities? How can this alternating surfacing of young men be explained?   Suppression of resistance, activism, and mobilisation are intrinsic components of settler colonialism. Within this framework, Israeli occupation has constructed a sophisticated system of suppression through the adoption of a series of vital laws and policies. These include Military Order 101 and the British Defence (Emergency) Regulations in Mandatory Palestine, which restricted freedom of assembly, freedom of expression, and political participation. All of these will be explored thoroughly later. Apart from these laws, the risk of revocation of civil status as a concrete part of settler colonialism, coupled with the risk of deprivation of opportunities and access to livelihood, has given rise to self-censorship and refrain from any form of participation in activism and resistance. This is particularly relevant among the most vulnerable Palestinians, whose livelihoods completely depend on the Israeli economy.   Israeli measures intended to instil domination of one racial group over another has over time given rise to the absenteeism of key social groups from political arena and wider Palestinian resistance to Israeli occupation. This system of hegemony and domination has been the subject of several recent analyses by Israeli and international human rights organisations, who have all concluded that Israel practices a system of apartheid against Palestinians that seeks to perpetuate the domination of one racial group over another.[3]   A key pillar of this system of apartheid is the fragmentation of Palestinians, which classifies Palestinians by civil status and confers a hierarchy of privileges and rights accordingly. This system of classification is designated by area of residency. To demonstrate by way of example, Palestinians inside Israel enjoy the status of citizenship, which differs from nationality, as the former confers individual rights, while the latter confers collective national rights.[4] In contrast, Palestinians in Jerusalem enjoy the status of ‘permanent’ residents, which confers residency, employment, and other social rights. However, this status is fragile, and unlike its connotation can be easily revoked, on grounds including but not limited to the ‘centre of life’ criterion and as a punitive measure.[5] Further down the ladder of privileges are Palestinians in the West Bank and Gaza Strip, who are stateless and reside under a system of military occupation, and last are refugees whose right of return is unrecognised by Israel.[6]   While Jerusalem was immediately annexed after its occupation in 1967, the Israeli Civil Administration was established as a military body to rule over Palestinians in the West Bank and Gaza.[7] The Israeli Civil Administration instilled a system of control that requires Palestinians in the West Bank to obtain permits to access Jerusalem and Israel proper, including employment and livelihood opportunities in the settlements.[8] This requirement restricts Palestinian freedom of movement, as was emphasised in a ruling by the Israeli Supreme Court in 2008, which declared the West Bank and Gaza to be closed to all persons and requiring military permits for Palestinians for movement based on a military order issued in 1967.[9] This hierarchisation of civil statuses and associated permit regime is a key factor of the absenteeism of youth, as will be demonstrated later in this article.   On a related level, complete Israeli control over borders and natural resources, coupled with restrictions on movement and development of economic infrastructure, have all collectively rendered the Palestinian economy hostage to the Israeli economy. This automatically leads to severe restriction on availability of work opportunities, which by extension forces Palestinians to seek employment and work in the Israeli market.[10]   The main focus of this article is to examine the different dimensions that impact Palestinian activism, and thereafter take young Bedouin men in the so-called E1 area in the southern Jerusalem periphery, as a case study. This invisibility of young men became a point of exploration during the research project ‘Palestinian Bedouins at Risk of Forcible Displacement: IHL Vulnerabilities, ICC Possibilities’, which focuses on Bedouin communities at risk of forcible displacement in the E1 area. During the research, the field research team of AQHRC conducted tens of interviews in five different Bedouin communities. The sampling approach sought to maximise inclusivity with the integration of various social groups (elders, women, young women, young men) as well as relevant stakeholders (lawyers, NGOs, humanitarian agencies). Within this framework, between November 2020 and March 2021, the field research team interviewed a total of (26) persons; fourteen men, nine women, and three young women. However, the field research team failed to interview or even engage with any young men from the Bedouin communities, despite concerted efforts. This approach of inclusivity of various social groups confirmed to the field research team the absence of young men from the communities.   To this end, this article will commence with an overview of Israeli suppression of Palestinian activism, resistance, and mobilisation, showcasing the myriad of laws and policies that are utilised, and highlighting the recent heightened suppression. The next section will present the so-called E1 plan as part of the wider Greater Jerusalem plan, demonstrating how this plan advances Israeli settler colonialism. Last, the article showcases the factors underpinning youth’s visible invisibility in the E1 area, presenting fieldwork findings that are embedded in existing literature, where possible, and highlighting the impact of cultural lifestyle and livelihood factors, socioeconomic and political factors, social factors, and lack of trust in duty bearers as the crux underpinning youth marginalisation and absenteeism.   Israeli Repression and Suppression of Palestinian Resistance   Israel has employed a myriad of strategies and measures throughout its history to supress Palestinian resistance and mobilisation to all forms of its settler colonial endeavours. In employing these strategies and measures, Israel has exploited the fragmentation that it has superimposed on Palestinians, namely through the formulation of different measures for each region where Palestinians exist. This section will demonstrate Israeli measures against Palestinians in Israel proper, in Jerusalem, and the remainder of the occupied Palestinian territory, highlighting the exacerbation in these measures since 7 October 2023, when a further round of escalation from ‘normal’ levels of violence has been witnessed.   With respect to Palestinians inside Israel proper, Israel has developed a sophisticated legal system and associated policies to eradicate Palestinian identity and impose the Jewish character of the state. While Palestinian citizens of Israel enjoy political rights, including running for and voting in the Legislative Council Elections, the Knesset, they face several obstacles. Section 7a of the ‘Basic Law: The Knesset’, which is equivalent to a constitutional law, enacted in 2002, provides for the barring of a candidate or a list of candidates if their actions or goals explicitly or implicitly include ‘negation of the existence of the State of Israel as a Jewish and democratic state’. This is the clause that the Israeli Central Committee has predominantly relied on to disqualify Palestinian candidates and lists. And while the Israeli Supreme Court has overturned these disqualifications, it is important to note that in its decisions, the Court cited that this clause should be interpreted narrowly and not broadly, such that lists can only be disqualified when the goal is injurious to ‘the ‘core’ features that form the minimal definition of Israel as a Jewish state’. While overturning the disqualification of Palestinian lists is important, the narrow interpretation continues to impose limitations on Palestinian political participation, as the Supreme Court President Aharon Barak has elaborated that demands for equality do not threaten the existence of Israel as a Jewish state so long as the aim is to ‘secure equality between citizens internally, while acknowledging the rights of the minority living among us’.[11] This interpretation continues to restrict Palestinian political participation, including in terms of demands and proposed legislation, to remain within the confines of the Jewish character of the state, which is inherently discriminatory. The ‘Basic Law: Israel as the Nation-State of the Jewish People’ enacted in July 2018, provides for in section 1c that the right to national self-determination is exclusive to Jews. This law exacerbates Jewish supremacy and entrenches the status of Palestinians as second-class citizens in their own homeland. This particularly extends to civil and political rights, whereby the Arabic language was demoted from being an official language to becoming a language with ‘special status’.[12]   In Jerusalem, the civil status of ‘permanent residency’ restricts Palestinian political participation to include only voting in the Jerusalem Municipality elections. By extension, Palestinians are deprived of running to the Municipality and from running and electing their representatives in the Israeli Knesset.[13] With the view of refraining from legitimising the Israeli occupation of Jerusalem, Palestinians in the city have continuously boycotted the elections.[14]   A key piece of legislation in terms of suppression of Palestinian activism, entitled ‘Law on Implementation of the Transitional Agreement Regarding the West Bank and Gaza Strip’, which is more commonly as the Activity Restriction Law, was enacted in 1994. This law sought to restrict the activities of the Palestinian Liberation Organisation and the Palestinian Authority (PA) within the territory of the Oslo Accords and prevent any political or sovereign activity without obtaining the written consent of the Israeli government.[15] Under the pretext of this law, the Israeli government had prevented the participation of Jerusalem in the Legislative Council Elections that were intended to take place in 2021.   The law, however, did not specify any criteria or threshold on the qualification of what constitutes a political or sovereign activity, and on top of that gave the Minister of Internal Security large discretionary powers in the interpretation of the law. Within this framework, the law was used to restrict many aspects of Palestinian life. Between September 2018 and September 2020, the Governor of Jerusalem was arrested and summoned for investigation 18 times, averaging once every 40 days. The same applies to notable public figures associated with the PA and Palestinian political parties. However, the utilisation of this law has extended to prevent sports, artistic, and scouting activities. The extent of the absurdity of the law, which contravenes the Oslo Accords, has reached to the extent of arresting members of civic committees that were formed to raise awareness and warn about the consequences of the Covid-19 pandemic, in addition to storming into a funeral house and forcefully evacuating persons there.[16]   Apart from the Activity Restriction Law, another relevant mechanism in Jerusalem is the revocation of Palestinian residencies under the criterion of ‘breach of allegiance’. In March 2018, the Israeli Knesset amended the ‘Entry into Israel’ law to provide for revocation of residency under the criterion of breach of allegiance. This legislation came in response to a decision by the Israeli Supreme Court, the month prior, that stated that the court did not have the legislative basis to revoke the residencies of three Palestinians elected to the Palestinian Legislative Council in 2006 and the Minister of Jerusalem Affairs. In that ruling, the Court provided the government up to six months to provide the necessary legal basis.[17] Nonetheless, it is important to note that the Israeli government had persistently exploited periods of escalation in violence to punitively issue residency revocation decisions without waiting for the decision of the court.[18]   This ‘new’ measure by Israel not only violates international law, as international humanitarian law forbids the expectation of allegiance from a population under occupation,[19] but also represents a massive breach of fundamental freedoms particularly as the law fails to define the concepts of allegiance and terrorism in the law, particularly given the large discretionary power provided to the Minister of Interior in residency revocation.[20] This is exacerbated by the sanctioning from the Supreme Court, which has maintained that Jerusalem residency is contingent on the discretion of the Minister of Interior.[21] To demonstrate by way of example, some of those whose residencies were revoked were accused of stone throwing.[22]   At the level of the West Bank, Israel employs two main laws to repress and supress Palestinian resistance, military order 101 and the British Defence Regulations. Military order 101 entitled ‘Order Regarding Prohibition of Incitement and Hostile Propaganda Actions’, issued in August 1967,[23] prohibits and punishes any form of Palestinian political expression by up to 10 years in prison. The order prohibits assemblies in the absence of the necessary permit from the military commander. It also provides large discretionary powers to those mandated with its enforcement, such that the order provides for the indefinite closure of any public gathering venue based on the order of the military commander, and authorises soldiers to use any degree of force necessary to prevent any violations of the order,[24] which only applies to Palestinians and does not extend to Israeli settlers.[25] Repression under military order 101 extends to include prohibition of freedom of expression, including publishing, printing, and/or publicising any political materials. It also prohibits the display of the Palestinian flag and any political symbols, in addition to the prohibition of the influence of public opinion orally or in any other manner that Israeli authorities deem a jeopardy to public safety and order. The absence of a definition as to what constitutes public safety and order provide large discretionary power to the military apparatus in the West Bank.[26]   Israeli repression of Palestinians also makes use of Defence (Emergency) Regulations in Mandatory Palestine, which were enacted by the British government in 1945. Israel continues to exploit these regulations despite their repeal in 1948, as the British Mandate was coming to a close. These regulations granted the High Commissioner complete control over all aspects of civil life in Palestine, including deportation of Palestinian citizens, home demolitions, imposition of curfews, censorship of newspapers and books, and carrying out administrative detention.[27] Administrative detention refers to a procedure that allows the military to hold prisoners indefinitely based on secret information without charging them or allowing them to stand trial.[28]   Despite Israel’s unilateral disengagement from Gaza in 2005, which effectively removed the restrictions imposed by military rule vis-à-vis freedom of expression and freedom of assembly, crackdown on these fundamental freedoms persisted. On 30 March 2018, on the occasion of Land Day a series of peaceful demonstrations took place along the Gaza border demanding a lift of the suffocating siege imposed on Gaza. These demonstrations, which persisted until December 2019, were met with brutality and excessive force on the part of the Israeli army deployed on the Gaza periphery. Between March 2018 and December 2019, a total of 214 Palestinians were killed, including 46 children, and an additional 36,100 were injured, 8,800 of which were children.[29]   In keeping with Israeli policy of exploiting periods of escalation in violence, Israeli suppression of Palestinian activism, mobilisation, and solidarity by various parties has intensified since 7 October 2023 and reached unprecedented levels. This suppression extended beyond official spaces and institutions to civic spaces, such as universities, trade unions, hospitals, and high-tech companies. One prominent example of repression at the official level is the suspension of Member of Knesset Aida Touma-Sliman for two months and Member of Knesset Iman Khatib-Yassin for one month. These suspensions impinge on freedom of expression, as Touma-Sliman had criticised the Israeli army for attacking Al-Shifa Hospital on the platform X (previously known as Twitter) and Khatib-Yassin was suspended for saying that footage of the 7 October attack did not show beheading of babies and rape of women,[30] two prominent allegations made by the Israeli army and journalists, with the former being completely debunked[31] and the latter facing mounting credibility concerns.[32] Censoring elected officials extended beyond Palestinian members of Knesset to include also Jewish Israeli member of Knesset Ofer Cassif, who faced the possibility of complete expulsion from the Knesset due to his vocal support for the genocide case brought against Israel by South Africa in the International Court of Justice.[33] While ultimately the vote in the Knesset to expel Cassif failed, it should not be underestimated that 85 out of 120 Knesset members voted for the ouster of Cassif, just five members shy from the 90 members necessary to expel him.[34]   At the level of civic space, Palestinians have found themselves facing a storm of complaints and disciplinary action due to their statements and solidarity with the assault being perpetrated on Gaza expressed through social media platforms.[35] This is seen in students’ experiences, whereby between 7 October and 25 November 2023, a total of 113 student (89 female, 24 male) from 32 Israeli university and college have approached Adalah, The Legal Centre for Arab Minority Rights in Israel, to represent them in disciplinary proceedings that include suspension against them for social media activities.[36] It is important to note that these complaints came pursuant to objections by Israeli far-right students. In a total of 110 cases monitored by Adalah, 52 Palestinian students faced suspension prior to a hearing, and eight were expelled without a hearing. Additionally, three students were expelled from their dormitories without prior notice or the opportunity for a hearing. Complaints against these students came against social media posts expressing solidarity with the Palestinian people in Gaza that are completely irrelevant to the war or to Hamas, including providing context to the attack of Palestinian militants on 7 October and the events that led up to it, and quotation of verses from the Quran, or actions that lie well within the realms of freedom of expression and freedom of religion. The alarming and chilling impact of these measures is exacerbated by statements made by several Israeli academic institutions that have declared that there is ‘zero tolerance’ for ‘supporting terrorism’, and have already proceeded with suspending or expelling students who have utilised social media platforms to express their Palestinian identity or solidarity with Palestinians in Gaza,[37] actions that do not relate to terrorism in any shape or form.   Similar punitive measures were taken against Palestinians in the labour market. In this sense, 90 Palestinian citizens of Israel were fired or suspended from their place of employment in various sectors.[38] Examples of these are many, and we include here two prominent cases. The first is of Dr. Abd Samara, the Head of the Department of Cardiac Intensive Care in Hasharon Hospital, who was removed from his post based on allegations that he ‘praises the Hamas invasion of Israel’.[39] However, scrutiny of the claim reveal that the decision was made based on his Facebook profile picture, posted in 2022, which features the Islamic flag and declaration of faith.[40] In another flagrant case, a Palestinian lawyer who is a citizen of Israel posted on Facebook in the days following 7 October, ‘I had a fantastic night’. The lawyer, who had just passed her bar exam was arrested for her post and standing trial.[41]   The above examples are only a snapshot of wider draconian measures and crackdown on freedom of expression and freedom of assembly, which have disproportionately targeted Palestinian citizens of Israel and Palestinians in Jerusalem. Wider measures include unlawful detention and arrest of activists,[42] and bans on solidarity protests.[43] The chilling effect of these measures is even further exacerbated in light of recent legislative measures, including an amendment to the Counter-Terrorism Law on ‘Consumption of Terrorist Publications’ and the introduction of a new piece of legislation on citizenship and residency revocation for speech related offenses.[44] Ultimately, these measures, collectively, have rendered the Palestinian voice invisible, whether in terms of criticising the Israeli government or expressing solidarity with the Palestinian people in the Gaza Strip out of fear for retribution.   The E1 Masterplan: A Microcosm of Israeli Government Policy in Area ‘C’   Settler colonialism is a relatively new and growing scholarly field that is distinct from classical colonialism,[45] and that is host to multiple conceptualisations. While definitions of settler colonialism abound, there are key elements that characterise and recur in its various conceptualisations. First, the elimination and replacement of the native by the settlers,[46] captured in Patrick Wolfe’s ‘logic of elimination’.[47] Second, the centrality of territoriality, land, resources and their exploitation.[48] Third, the structural formation of settler colonialism and its ongoing nature, which is distinct from an event that has a beginning and ending.[49] Accordingly, settler colonialism differentiates from classical colonialism in that the latter seeks to exploit indigenous people and extract surplus value from their labour, while the former seeks to displace (or replace) indigenous people from their homeland.[50]   Over the last years, the theorisation of the Israeli occupation of Palestine has evolved and expanded to include settler colonialism. Israeli settler colonialism against Palestinians demonstrates a state of exception in exclusively combining elements that were not collectively combined in other settler colonial contexts. Israeli settler colonialism combines land expropriation, settlement expansion with displacement of Palestinians, and imposing an apartheid regime on those who remain.[51] All of these are underpinned by a narrative of entitlement based on transforming a religion into a nationality, which came about in response to European antisemitism, and was inspired by both European nationalism and the new wave of European colonialism.[52]   With the view of effectuating settler colonialism through maximising the acquisition of land with the least percentage of Palestinians on it,[53] Israeli government employs a myriad of measures, including confiscation of land and denial of use, establishment and expansion of settlements (including its associated infrastructure), demolition of Palestinian homes and other methods of forcible displacement, and imposing a coercive environment that extends Israeli domination over Palestinians and that ultimately seeks to drive out Palestinian communities.[54] This is seen in the increase in the number of settlers in the West Bank, including Jerusalem, from 238,060 in 1991 at the outset of the peace process,[55] to 719,452 by the end of 2021.[56] Furthermore, between January 2009 and February 2024, a total of 7,969 Palestinian owned structures located in Area ‘C’ were demolished, leading to the displacement of 9,905 Palestinians.[57]   The so-called E1 plan serves as a microcosm of Israeli settler-colonial expansionist policy in Area ‘C’ of the West Bank, enabled through the occupation of the West Bank, including East Jerusalem, in 1967. The E1 plan refers to a 12 km2 narrow undeveloped land corridor in Area ‘C’ of the West Bank, located 8 km to the southeast of Jerusalem, and is encircled by Israeli settlements.[58] The E1 plan is part and parcel of the Greater Jerusalem plan, also known as the Jerusalem Master Plan, which serves as a blueprint and is the first planning framework that treats east and west Jerusalem as one urban unit.[59] The Greater Jerusalem plan seeks to separate Jerusalem from the remainder of the West Bank by annexing the settlements of Ma’ale Adummim, Givat Ze’ev, Beittar Illit, and the Gush Etzion bloc to East Jerusalem[60] and as it is demographically motivated, aims to establish and maintain Jewish majority by 70% to 30% Arabs in Jerusalem by 2030.[61] The E1 plan, if implemented, will not only entirely isolate East Jerusalem from the remainder of the West Bank, making Palestinian access to the intended capital impossible, but also will cut the West Bank in half, separating Nablus, Ramallah and Jericho in the north and central West Bank from Bethlehem and Hebron in the south, rendering territorial contiguity and agreement on permanent borders impossible.[62] The E1 Masterplan (420/4), developed on privately owned Palestinian land that was declared state land in the 1980s,[63] is subdivided into several plans, three of which have already been approved: a water reservoir, a metropolitan commercial centre, and a police station, which has already been built. Additional sub-plans, which are yet to be approved, will effectively double the population of Ma’ale Adummim through up to a possible 15,000 illegal settlement units,[64] including 2,000 hotel rooms.[65]   There are 3,000 Bedouins in eighteen communities in the E1 area,[66] the vast majority of them (2,700) belong to the Jahalin tribe.[67] In light of Israeli occupation government policy in the area, these Bedouins are under constant threat of displacement, through both direct and indirect means. It is important to note that the displacement of Palestinian Bedouins serves as a continuum, as they were ethnically cleansed from their homeland in Tal Arad in Al-Naqab in the early 1950s by the Israeli government, such that 85% of the Bedouins in that area were displaced to Gaza Strip, Egypt, Jordan, and the West Bank.[68]   Direct methods of displacement include outlawing the presence of communities, forced urbanisation, house demolitions, house evictions, land confiscation, and settlement expansion. Within this framework, between January 2009 and February 2024, a total of 429 structures were demolished in eighteen Bedouin communities within the E1 area, 186 of which are residential structures, leading to the displacement of 909 Bedouins, with 68% of the demolitions taking place in Khan Al-Ahmar Abu Helu, Jabal Al-Baba, Abu Nuwwar, Al Muntar, and Az Za’ayyem Bedouins communities.[69]   Furthermore, the Bedouin communities in the E1 area are a target for relocation to outside the E1 area by Israel. In this sense, Israeli right-wing politicians have been advocating for direct and outright annexation of E1 area, considering the ‘incremental’ approach through demolitions and settlement expansion insufficient and ineffective. This is seen in Naftali Bennet’s statement at the time when he was Minister of Education, declaring ‘clearly it’s time for a quantum change…The incremental approach has not worked. We have to understand it’s a new reality. We have to go big, bold, and fast’.[70] During the 2021 Israeli national elections, ten Israeli political leaders in a live broadcast from a studio erected at the outskirts of Al-Khan Al-Ahmar Bedouin community in the E1 area not only criticised the delay in the demolition and eviction of the Bedouin communities in the Greater Jerusalem area, but also have affirmed their commitment to proceed with the eviction as soon as they are elected.[71] Three main sites are being considered; an existing site near the Abu Dis garbage dump called Al-Jabal, a new site in Nu’eimeh, north of Jericho, and an additional less known site also located in the Jordan Valley, Armonot Hashmonaim.[72]   Displacement through indirect means is carried out, as designated by the UN Secretary General, by imposing and maintaining a coercive environment,[73] through the denial of basic utilities and social and economic rights, including electricity, running water, an adequate road system, public transportation, educational institutions, and healthcare facilities.[74] Within this framework, only four out of eighteen communities have primary schools (Abu Nuwwar, Al-Muntar, Wadi Abu Hindi, and Khan Al-Ahmar Abu Al-Helu), all of which have an outstanding demolition order against them, and none of the communities have secondary schools. This entails that children from the fourteen other communities have to commute to these communities or to urban centres to access primary education, while children from all communities have to commute to urban centres to complete their secondary education.[75] The same applies for healthcare facilities, whereby services are provided by UNRWA and civil society organisations in the form of mobile clinics that only provide the most basic services in terms of testing and medication, twice a month at the best.[76] This forces Bedouins to commute to nearby urban centres to receive healthcare services, which is exacerbated, particularly in the winter, by the absence of an adequate road system and public transportation. Furthermore, another limiting factor is the high cost of medical services, which is impacted by the economic disempowerment of these communities.[77] This comes within the framework of the restriction of access to grazing land, which forces the Bedouins either to sell their herd or buy highly expensive fodder. This in its turn has pushed the Bedouin communities into poverty and turned them into cheap manual labour in Israeli settlements, where they are denied basic labour rights.[78]   Steady settlement expansion has eaten away at grazing land available for Bedouin communities in the E1 area, with severe economic repercussions that facilitated their subjugation and effectuation of Israeli domination. Specifically, the expansion of Ma’ale Adummim settlement has been detrimental. In 1994, the borders of Ma’ale Adummim were expanded by the government of Yitzhak Rabin to include the so-called E1 area. Thus, expansion from the mid-1990s led to the relocation of some 150 families from the Bedouin Jahalin tribe to Al-Jabal site between 1997 to 2007. Today, Ma’ale Adummim houses over 40,000 settlers on lands confiscated from Abu Dis, Al-Izzariyeh, Al-Issawiyeh, Al-Tur, and Anata. While its current built-up area is around 7 km2, Ma’ale Adummim’s municipal plan covers a total area of 55 km2, which includes the E1 area and extends to almost the Dead Sea.[79] Land confiscation is also further exacerbated by the targeting of agricultural structures in demolition operations. Between 1 January 2009 and 20 February 2024, of the total 429 structures demolished, 125 were agricultural structures,[80] representing 29.1% of the total number of demolished structures.   The implications of settlement expansion and associated land confiscation, in addition to demolition of agricultural structures can be seen in the sources of livelihood of Bedouin communities. While only one of eighteen Bedouin communities report that working in Israeli settlements serves as their primary source of livelihood, this figure rises to thirteen communities who rely on working in Israeli settlements as a secondary source of livelihood.[81] These figures speak to the Israeli domination over Bedouin communities in the E1 area, which, by extension, renders them in complete control over their residency and livelihood opportunities.   Why are the Youth Absent? A Myriad of Political, Economic and Social Factors   Young Bedouin men in the E1 area are faced with several potential challenges and risks when it comes to political participation and activism. The AQHRC field research team faced several challenges in studying these risks, particularly as they were not able to discuss this issue with the young men themselves and were warned by other field workers not to ask too many questions about the youth’s absence for fear of increasing reluctance of communities to engage in the future. Nevertheless, the AQHRC field research team managed to gather some information through indirect questions to the older people interviewed, as well as from field observations and notes. The factors that were formulated vary from economic, social, and political factors to lack of trust in the international mechanisms and lack of support from the national duty-bearers. Naturally, these factors are interlinked and reinforce each other, such that many factors of an economic nature are exacerbated by and/or feed into social factors. The same applies to the other sets of factors. This section presents fieldwork findings on factors underpinning the visible invisibility of young Bedouin men in the E1 area.   Cultural Lifestyle and Livelihood Factors   Palestinian Bedouins in Area ‘C’ hold West Bank identity cards, which, as demonstrated earlier, nearly come at the bottom of the ladder in terms of associated privileges and rights. Second, these Palestinian Bedouins, particularly, live at the sharp edge of displacement and domination, as reflected earlier, through outlawing their communities, forcefully urbanising them, confiscating grazing land available, demolishing their homes, and targeting their agricultural infrastructure, to name a few. In this sense, in contrast to various other youth groups, such as youth in Arab revolts dubbed ‘Arab Spring’, Bedouin youth in Al-Naqab desert resisting the Prawer plan and other settler colonial plans, and even Palestinian youth in urban centres and rural areas, young Bedouin men in the E1 area fear significant retaliation and punitive measures if they engage in activism.   The key issue underpinning these differences is the increased risk for Bedouin participation in terms of the retaliation and retribution that could engulf the Bedouin communities. Specifically, retaliatory responses to Bedouin participation in resistance and activism could very easily include home demolitions and eviction from their communities, and as demonstrated in the next subsection, induced economic hardship.   The implications of such retaliatory measures go beyond infringement on residency rights and extends to include deprivation from practicing their cultural lifestyle and securing livelihoods while maintaining their traditions. This is all exacerbated by a far-right Israeli political leadership which is vocal about their intentions to evict Palestinian Bedouins from the E1 area,[82] and have persistently declared that Palestinians are not deserving of their own state,[83] which carries additional fears to Bedouins in the E1 area due to the strategic location of their dwellings. These measures of abolishment of lifestyle, ultimately, could give rise to cultural genocide. This does not nearly compare to the case for Palestinians in urban and rural centres, who essentially risk being subjected to excessive use of force, arrests and detainment. In that sense, one Bedouin woman spoke to this saying ‘I cannot live in neighbouring communities in sky high buildings. Bedouins like their privacy and are not used to living in small spaces like this. I might die if I cannot roam around with my cattle, and in all honesty I would prefer to die if that happens’.[84] She then stressed the fact that they cannot live in refugee camps or any other crowded space, because then, they would lose all sense of identity and suffer both mental and physical deterioration.   Socioeconomic and Political Factors   Similar to the rest of the West Bank, the economy of the Bedouin communities especially in the E1 area have been driven to be fully dependent on the Israeli economy. The Bedouin communities’ economy is highly intertwined with their lifestyle, as one of the interviewed Bedouins stated in response to a question about his preferred place of residence ‘wherever my cattle goes, I follow’.[85] Thus, as Israeli policies are stripping Bedouins in the E1 area from their original lifestyle, they are stripping them away from their economic independence and livelihood opportunities. The impact of policies of economic dependency is doubled in the case of the Bedouin communities in the E1 area because their original ‘profession’ cannot be practiced. The same applies to their original lifestyle, which also cannot be practiced without sufficient land. Israeli policies to forcibly displace Bedouins include land confiscation, restrictions on movement, limiting access to land and most notably the construction of the annexation wall.[86] This is alongside the construction of Israeli illegal settlements and imposition of closed military zones and nature reserves, which made 70% of Area ‘C’ of the West Bank inaccessible to Palestinians.[87]   Israeli policies have led to the economic disempowerment of Bedouin communities in the E1 area, forcing youth into cheap manual labour in nearby settlements and Israeli labour market, which is contingent on the granting of permits by occupation authorities. Historically, the Bedouins used to travel all across Palestine, and were able to move from the Jerusalem area to Ramallah (30 km) in the summer, and move back during the winter.[88] Now, that process, which is an essential part of the Bedouin lifestyle is being erased by Israel, as the Bedouins now are not allowed in the majority of lands they used to graze in, and even the places they are allowed in, they are reluctant to leave due to the risk of moving and not being able to return. That fear and lack of land concentrated the grazing in areas they can go and come back within one day to avoid losing their space; essentially around the ever decreasing E1 area. Currently with ongoing settlement expansion, the lands surrounding the E1 area became off limits for Bedouins residing there. In order to overcome this obstacle, the Bedouins in the E1 area adopted a costly alternative and started buying highly expensive fodder, which costs up to 1500 NIS/ton, the equivalent to 412 USD/ton, in addition to buying water tanks to compensate for the lack of grazing land. This has led to a critical decrease in the number of livestock owned by the E1 Bedouins. Several Bedouins in 2021 stated that the number of livestock represents a third of what they used to be three to four years ago, which is not cost efficient for youth in dire need for an income.   Bedouins in the E1 area lack access to education, whether academic or vocational education. There are only four primary schools in the eighteen Bedouin communities in the E1 area.[89] As most children have to commute long distances to reach education, coupled with the associated risks due to the absence of pedestrian sidewalks and an adequate transportation system, school drop-out rates have significantly increased.[90] One Bedouin stressed their need for education in her interview as she responded to a question about her education saying that ‘I wish we have an illiteracy programme in the community, we all need it and women especially demand it’.[91] The lack of access to education plays a major role in the Bedouin’s economic situation as many jobs and employment opportunities are inaccessible due to the lack of availability of academic or vocational qualifications.   Stakeholders are not sufficiently supporting Bedouins in regard to their economic disempowerment. One of the major stakeholders, the PA, failed to invest in the massive human resources in the Bedouin communities. As one of the interviewees raised the question ‘Why has not the PA followed in the footsteps of the Jordanian army and established a special unit for Bedouins?’[92] referring to employment in the security forces. Not only did the PA fail to invest in the Bedouin communities, but it also notably failed to fulfil their responsibility of supporting their resilience through providing job opportunities, or income-generating projects. Other major stakeholders are the non-governmental organisations (NGOs) working on providing humanitarian aid to the Bedouin communities in the E1 area. Due to Israeli policies, these NGOs have been unable to create and maintain sustainable development in the E1 Bedouin communities, and relied on providing short term aid, or emergency response aid. That means that Bedouin youth in the E1 area are rarely exposed to opportunities to generate income or pursue a career through these NGOs. As one Bedouin pointed out ‘I wish if one of these NGOs would start a tailoring and embroidery workshop, it would be better than all the aid provided for us’. He added ‘I know that some might consider it a profession for women, but I’m personally ready to take part in it’.[93]   The economic situation of the neighbouring communities as well as their lack of integration of the Bedouins have deepened the latter’s economic dependency. The surrounding communities are also suffering from the overall poor economic situation, so they are unable to hire new employees and pay additional salaries. In addition to that, the lack of integration by the community makes the Bedouin youth less preferable for the work owners when taking in an apprentice. Moreover, if a Bedouin young man is chosen as an apprentice, he is more likely to work in cleaning or other marginal tasks, limiting prospects for development and advancement. One of the interviewees spoke on that issue saying ‘I sent my son to learn mechanics in one of the garages of Bethany, and a whole week went by where he only cleaned around and did not learn anything connected to the blue-collar profession’.[94] Another interviewee explained that the picking of dates in Jericho and Jordan Valley provides a seasonal opportunity for employment; however, the financial compensation is barely sufficient to cover the transportation costs and basic daily needs.[95]    In light of the above, and since the Bedouins exhausted all options for employment, and income-generation, cheap labour in settlements and Israeli labour market became their only available option. This option can be pursued through permits issued by the Israeli Civil Administration,[96] which allows them to enter certain settlements for work and during specific times. Thus, this permit became the Bedouin’s gateway to a better economic situation and economic survival. This permit is used as a tool of punishment to control the people who receive it or depend on it. Specifically, any act of resistance can eliminate one’s chances of receiving a permit, which automatically results in him losing his job. An example of the permit usage as a tool of punishment is when eighteen residents from al-Khan al-Ahmar community lost their work permits after they protested against the demolition campaign waged by the Israeli occupation on their community in 2018. The loss of their permits meant the loss of their jobs as one of the interviewees said ‘When I lost my permit, my whole family lost its only source of income, and since then I have been selling my cattle to survive, till now I have sold two-thirds of my cattle, and I do not know how much the remaining cattle can last me’.[97] While AQHRC field researchers were conducting field visits and interviews, they noticed the control permits have on people’s expressions, and terminology, as the people who own work permits are more hesitant to share their name, age, or any identification, as well as being sceptical to engage in any political discussion.   In contrast to young men, Bedouin women played an active role in 2018 in defending their land and advocating for their rights. Even though Bedouin females are incredibly harder to reach than Bedouin males, with the right protocols and a female field researcher, AQHRC was able to interview them unlike Bedouin young men. Through this engagement, AQHRC field researchers noticed that women are less scared and hesitant to bluntly express their feelings during interviews and discussions. While the patriarchal structure was more than apparent in some of their answers, they were not afraid to answer, which ties back to the fact that they are not the ones applying for Israeli permits. Instead, women’s main contribution to the communities’ economy is through making dairy products and selling them, so their names are not directly linked to the permits. Nevertheless, as shown above, they are also directly affected by the loss of permits as most of the time it is the family’s main source of income.   Social Factors   The Bedouin communities are known for their private and conservative lifestyle. Social factors also play a great role in the youth’s invisibility, as various structures, including the Bedouin communities’ patriarchal structure, restricts the youth’s roles and voices. Each Bedouin community in the E1 area has a representative -always a man- who is considered the leader of the community as well as its spokesperson. If anyone wants to gain access to any area in the community, they must talk to the leader, gain his trust, and take his approval on every step they intend to take.[98] During AQHRC field work, the field researchers have contacted whole communities through one person only, which is one of the obstacles faced when trying to gather information. An employee of a humanitarian organisation that works in the E1 area has stressed this fact saying, ‘one of the main challenges in dealing with the Bedouin communities, is having one person speak for the entirety of the community, which affects the credibility and inclusivity of our field data’.[99] When conducting interviews, AQHRC field researchers noticed that a significant number of persons are dependent on their representative. In many cases, AQHRC field research team were referred to the representative to answer questions asked to them. For example, when asked about court cases and standing demolition orders, respondents would often say that the representative knows best, or that the team should ask their representative. The leaders have such high standings that even when the PA wants anything from the community, they communicate directly with the leader before taking any further steps.   Moreover, Bedouin communities in general are stricter when it comes to traditions and community relations. This is aligned with the reinforcement of patriarchy in unstable times and settler colonial contexts, which is exercised by the stronger social group on the weaker social group.[100] In this sense, the elder’s high status in eastern communities is amplified in the Bedouin communities, creating a hierarchical relation between the younger and older generations, which is mainly built on the latter’s domination. In the field, this meant that younger men (if found) are not going to offer any further information than what their elders have already given us, and if they did, it might be considered a sign of disrespect. In one incident, a young man in a Bedouin community in the E1 area refrained from engaging in conversation with AQHRC in the presence of his uncle, even when directly asked, referring the team back to his uncle.   Lack of Trust in Duty Bearers   Another important factor that informs absence of young men is the lack of trust in both the PA and international community agencies. The Bedouins hold the PA responsible for their circumstances, as they feel that the negotiations during Oslo and the PA’s referral to Area ‘C’ lands as uninhabited is a major factor in the problems they are witnessing today. They feel left out, and unprotected, especially since the Oslo Accords did not provide any provisions concerning the protection of the Bedouin communities and their lifestyle. One interviewee even went as far as saying that the PA -at some point in time- assisted directly in the erosion of Bedouin communities in the E1 area. He supported his statement by his personal experience, as he was born in al-Khan al-Ahmar, and his birth certificate, issued by the Israeli Civil Administration indicated Khan al-Ahmar as his birth place, but when the PA came and he wanted to issue an identity card through the Palestinian Civil Registration they issued it with the birth place changed to Bethany because al-Khan al-Ahmar is not present in the PA’s records.[101] In recent years, this lack of trust has strengthened as the PA is still unable to fulfil the needs of Bedouin communities and support them in their struggles. Many people from various Bedouin communities in the E1 area have mentioned that they feel used by the PA, as they keep giving them promises and telling them to remain steadfast without providing them with sufficient support or resources.[102] This lack of trust reflects a broader Palestinian perception of lack of satisfaction in the PA. A public opinion poll by the Palestinian Center for Policy and Survey Research, released in September 2023, reveals that only 22% are satisfied with the performance of the PA President, Mahmoud Abbas, compared to 76% dissatisfied.[103] The same poll reveals that 52% of respondents support the dissolution of the PA.[104] This lack of trust in the PA decreases the perceived relevance of resistance and intensifies the importance of economic stability.   Similar to other Palestinians, the Bedouin communities do not have high hopes and expectations from international mechanisms; this includes the investigation opened by the International Criminal Court into war crimes in Palestine in 2021. This was apparent to AQHRC field research team early on in their fieldwork. When the team introduced themselves as field researchers working to help advocate for their rights on the international and national arenas, they often seem disappointed, and they do not shy away from expressing that disappointment. They often cite the great number of resolutions issued by the United Nations since 1948 that are yet to be implemented.   In one of the communities a Bedouin woman clearly declared that she would have refused to sit with AQHRC field research team, if the team had not walked all the way and got there [her house]. When asked about the reason behind this intense attitude she shared her frustration of NGOs coming in and out of the community without benefiting the communities in any shape or form. She stated that the previous month, a woman called from an NGO and asked her for some data so she can send them Covid-19 emergency response packages, but she never heard from her again. ‘She wasted two hours of my life, I have kids to feed, laundry to do, and house chores to attend to, but I sacrificed my time in the hopes of benefiting the community’. She added how she felt deceived by all the NGOs that are ‘using them to raise funds’ but who do not actually care about them.[105] The experience this woman went through and similar experiences like it, created an issue for other NGOs who genuinely intend to help and offer real support, which was pointed out by a representative of one of the NGOs working there.[106] The Bedouins are now bored, frustrated, and fed up with being used as a fundraising tools, or being told to stay put when everyone else is turning their backs on them and their area.[107] These observations are not dissimilar to experiences of other indigenous communities, whereby they refuse to engage in research due to its lack of effectiveness, coupled with its association with European colonialism and imperialism.[108]    Conclusion   The Israeli occupation, since the beginning, has utilised oppression and suppression of resistance as a cornerstone of its settler colonial policy. To effectuate this system, Israel instilled fragmentation of Palestinians geographically, and by extension conferred different civil statuses on Palestinians. This fragmentation corresponded with varying methods of suppression of resistance and mobilisation among different groups of Palestinians. Some of the tools used are Military Order 101, British Emergency Regulations, and punitive residency revocation, all of which have been extensively criticised by human rights and international organisations, as posing massive violations of human rights. Despite the long track record of suppression of Palestinian resistance, unprecedented levels of crackdown on any form of Palestinian activism and mobilisation were witnessed since 7 October 2023. This crackdown included widespread arrests, expulsion from workplaces, and expulsion from universities, among other measures.   Despite restrictions on resistance, mobilisation, and activism, Palestinian resistance to the Israeli occupation and settler colonialism is well documented. However, Palestinian Bedouins in the E1 area reflect an exception to the Palestinian norm of resistance, which has been steadily increasing over the past three decades. Specifically, young men are seen to be completely absent from any form of mobilisation, resistance, and activism. This article examined and identified the following factors underpinning this visible invisibility.   First, the dire economic situation of Bedouin communities can be attributed to multiple factors, including land confiscation and lack of grazing land, which is depriving Bedouins from their traditional lifestyle and generation of income through traditional means. Also, the lack of both academic and vocational education limits job opportunities available for Bedouin youth, which is exacerbated by the lack of integration of Bedouin communities with neighbouring communities. These factors have forced young Bedouin men into cheap manual labour in Israeli settlements, which is contingent on receipt of permits from the Israeli military body governing the West Bank. In this sense, young Bedouin men refrain from any form of activism and engagement in resistance for fear or revocation of their permits and loss of their only source of livelihood, a measure that has been persistently documented.   Economic factors are further exacerbated by the fear or retaliation and execution of punitive measures beyond revocation of permits, including complete eviction of Bedouins from their communities if they engage in any form of activism. This directly relates to Israeli settler colonialism, which is rendering Bedouin communities in the E1 area among the most vulnerable Palestinians to displacement through both demolitions and forced urbanisation.   Nonetheless, there are social factors that also influence the visible invisibility of youth. Specifically, the hierarchical patriarchal tribal system that characterises Bedouin communities, marginalises the voices of the younger generation in the presence of the tribal leaders, who come from the older generation. This was extensively experienced by AQHRC field research team in their work with Bedouin communities in the E1 area. All these factors have advanced the visible invisibility of young Bedouin men in the E1 area, which has reached a degree of self-censorship from any form of mobilisation, activism, and resistance against the Israeli occupation and settler colonialism in Palestine. Osama Risheq, Tamara Tamimi, and Raghad Adwan Osama Risheq is a PhD candidate in international law and transitional justice in Vrije University in the Netherlands, and holds an L.L.M in International Law with International Relations from Kent University. Osama has held the position of Legal Supervisor at Al-Quds Human Rights Clinic in Al-Quds University since 2009, and possesses extensive research and fieldwork experience in international law, transitional justice, forcible displacement, prisoners’ rights and the right to education. Osama has published extensively in peer reviewed journals and edited collections.   Tamara Tamimi is a PhD researcher in Law at Queen’s University Belfast and scholar of the Economic and Social Research Council Northern Ireland and North East Doctoral Training Partnership Consortium. Tamara holds an MA in Human Rights Law from SOAS, University of London, where her MA dissertation, which focused on destruction of property and forcible transfer in Jerusalem, received the Sarah Spells Prize for the best dissertation of the 2015-2016 academic year.  Tamara’s research activity focuses on settler colonialism, gender equality, transformative justice, forcible displacement, and aid effectiveness of overseas development assistance. Tamara has also published extensively in peer reviewed journals and edited collections.   Raghad Adwan holds a dual MA degree in Global Studies and International Affairs from Bard College, and has completed her undergraduate degree in human rights and international law from Al-Quds Bard College, Al-Quds University. Raghad has extensive experience in the civil society sector in Palestine, having worked with several civil society organisations, and previously held the position of field researcher at Al-Quds Human Rights Clinic for two years. Raghad is a member of the board of directors for the Alternative Information Center Palestine, and is one of the founding members for Lejan, a platform for Palestinian youth wherever they reside. Raghad is currently working as a Coordinator at the Community-Based Rehabilitation programme, Bethlehem Arab Society for Rehabilitation. [1] This work was supported by Arts and Humanities Research Council under the project ‘Palestinian Bedouin at Risk of Forced Displacement: IHL Vulnerabilities, ICC Possibilities’ [grant number AH/T007540/1], administered by Principal investigator Alice Panepinto, and Co-investigators Munir Nuseibah, Brendan Browne, and Triestino Mariniello. [2] Field interviews by Al-Quds Human Rights Clinic with Bedouin Communities, March 2021. 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[4] As’ad Ghanem, Nadim Rouhana, and Oren Yiftachel, ‘Questioning “Ethnic Democracy”: A Response to Sammy Smooha’ (1998) 3(2) Israel Studies 255; Nimer Sultany, ‘The Making of an Underclass: The Palestinian Citizens of Israel’ (2012) 27(2) Israel Studies Review 195. [5] BADIL – Resource Center for Palestinian Residency and Refugee Rights, ‘Forced Population Transfer: The Case of Palestine- Denial of Residency’ ( BADIL , April 2014) 17 < https://www.badil.org/phocadownloadpap/badil-new/publications/research/working-papers/wp16-Residency.pdf > accessed 24 March 2024. [6] Amnesty (n 3) 87, 93. [7] ibid 5. [8] ibid 16. [9] BADIL – Resource Center for Palestinian Residency and Refugee Rights, ‘Forced Population Transfer: The Case of Palestine: Instalment of a Permit Regime’ ( BADIL , December 2015) 24 < https://www.badil.org/phocadownloadpap/badil-new/publications/research/working-papers/wp18-FPT-Israeli-permit-system.pdf > accessed 24 March 2024. [10] Governance and Conflict Prevention Cluster, ‘Countering Economic Dependence and De-Development in the Occupied Palestinian Territory’ ( UNESCWA , October 2022) 13 < https://www.unescwa.org/sites/default/files/pubs/pdf/palestine-economic-dependency-development-english_0.pdf > accessed 24 March 2024. [11] B’Tselem, ‘Not a “Vibrant Democracy”. This is Apartheid’   ( B’Tselem , 2022) < https://www.btselem.org/publications/202210_not_a_vibrant_democracy_this_is_apartheid > accessed 24 March 2024. [12] Honaida Ghanem, ‘Israel’s Nation-State Law: Hierarchized Citizenship and Jewish Supremacy’ (2021) 4(3) Critical Times 566. [13] Norwegian Refugee Council, ‘The Legal Status of East Jerusalem’   ( NRC , December 2013) 24 < https://www.nrc.no/globalassets/pdf/reports/the-legal-status-of-east-jerusalem.pdf > accessed 24 March 2024. [14] Eetta Prince-Gibson, ‘Why There’s No Palestinian Protest Vote in Jerusalem’ ( Foreign Policy , 19 November 2018) < https://foreignpolicy.com/2018/11/19/why-theres-no-palestinian-protest-vote-in-jerusalem-israel-municipal-palestinian-authority-ramadan-dabash-aziz-abu-sarah/ > accessed 24 March 2024. [15] Moeen Odeh, ‘Policy Analysis Paper on the Impact of the Implementation Law (Law Implementing the Transitional Agreement on the West Bank and Gaza Strip) on the Civic Life and Political Participation of Jerusalemites’   (ACT for Conflict Resolution, 2020) 3. [16] ibid 7. [17] Al-Quds University et al, ‘Punitive Residency Revocation: The Most Recent Tool of Forcible Transfer’   ( Al-Haq , 17 March 2018) < https://www.alhaq.org/advocacy/6257.html > accessed 24 March 2024. [18] Munir Nuseibah, ‘Israel’s Dangerous New Transfer Tactic in Jerusalem’   ( Al-Shabaka , 13 April 2016) 3 < https://al-shabaka.org/wp-content/uploads/2016/04/Nuseibah_Commentary_Eng_Apr2016.pdf > accessed 24 March 2024. [19] ibid. [20] Al-Quds University et al (n 17). [21] Nuseibah (n 18) 4. [22] ibid 3. [23] ‘50 Years of Israeli Occupation: Four Outrageous Facts about Military Order 101’ ( Amnesty International , 25 August 2017) < https://www.amnesty.org/en/latest/campaigns/2017/08/50-years-of-israeli-occupation-four-outrageous-facts-about-military-order-101/ > accessed 24 March 2024. [24] Taha Awawdeh, Mary-Catherine, Marwa Hassouneh, Dana Al-Ghoul, Malak Hassouneh, ‘Spot on the Restriction of Academic Freedom in Palestine’ (Al-Quds Human Rights Clinic, 2021) 16. [25] Raja Shehadeh, ‘Multiple Legal Systems in the West Bank’ (2016) 21(3) Palestine-Israel Journal of Politics, Economics and Culture. [26] Awawdeh et al (n 24). [27] ibid 18. [28] ‘Administrative Detention’ ( Addameer Prisoner Support and Human Rights Association , July 2017) < https://www.addameer.org/israeli_military_judicial_system/administrative_detention > accessed 24 March 2024. [29] ‘Two Years On: People Injured and Traumatized in the “Great March of Return” are Still Struggling’   ( United Nations , 6 April 2020) < https://www.un.org/unispal/document/two-years-on-people-injured-and-traumatized-during-the-great-march-of-return-are-still-struggling/ > accessed 24 March 2024. [30] ‘Two Palestinian members of Knesset suspended over comments on war’   ( Middle East Eye , 15 November 2023) < https://www.middleeasteye.net/live-blog/live-blog-update/two-palestinian-members-knesset-suspended-over-comments-war > accessed 24 March 2024. [31] Alice Speri, ‘“Beheaded Babies” Report Spread Wide and Fast- But Israel Military Won’t Confirm It’ ( The Intercept , 11 October 2023) < https://theintercept.com/2023/10/11/israel-hamas-disinformation/ > accessed 24 March 2024. [32] ‘UN team arrives in Israel to investigate Hamas sexual violence claims’   ( The New Arab , 30 January 2024) < https://www.newarab.com/news/un-team-israel-over-october-7-sexual-violence-claims > accessed 24 March 2024. [33] Noa Shpigel, ‘Knesset to Vote on Expulsion of MK Ofer Cassif Over Signing ICJ Petition’   ( Haaretz , 19 February 2024) < https://www.haaretz.com/israel-news/2024-02-19/ty-article/.premium/knesset-to-vote-on-expulsion-of-mk-ofer-cassif-over-signing-icj-petition/0000018d-bdec-dc8c-a3df-fffdab8b0000 > accessed 24 March 2024. [34] ‘Knesset Plenum votes not to remove MK Cassif from office’ ( Knesset News , 19 February 2024) < https://main.knesset.gov.il/en/news/pressreleases/pages/press19224q.aspx > accessed 24 March 2024. [35] Adalah – The Legal Center for Arab Minority Rights in Israel, ‘Crackdown on Freedom of Speech of Palestinian Citizens of Israel’   ( Adalah , 16 November 2023) < https://www.adalah.org/uploads/uploads/Crackdown_Freedom_Speech_23_October_2023.pdf > accessed 24 March 2024. [36] Adalah – The Legal Center for Arab Minority Rights in Israel, ‘Infographic Report: Palestinian Students Persecuted in Israeli Academic Institutions’   ( Adalah , 30 November 2023) < https://www.adalah.org/en/content/view/10991 > accessed 24 March 2024. [37] Adalah (n 35) 1-2. [38] ibid 2. [39] ‘Doctor suspended over alleged incitement to terrorism’   ( Israel National News , 19 October 2023) < https://www.israelnationalnews.com/news/378784 > accessed 24 March 2024. [40] Adalah (n 36) 3. [41] Masha Gessen, ‘Inside the Israeli Crackdown on Speech’ ( New Yorker , 8 November 2023) < https://www.newyorker.com/news/annals-of-human-rights/inside-the-israeli-crackdown-on-speech > accessed 25 March 2024. [42] Adalah (n 36) 3-5; ‘Israeli Police Crack Down on Arab Citizens Expressing Solidarity with Gaza’   ( Asharq Al-Awsat , 20 October 2023) < https://english.aawsat.com/features/4618256-israeli-police-crack-down-arab-citizens-expressing-solidarity-gaza > accessed 24 March 2024; ‘“Raise Your Hands and Give Us Your Phones!” Palestinian Jerusalemites Silenced in Their Private and Public Spaces’   ( Jerusalem Story , 22 October 2023) < https://www.jerusalemstory.com/en/blog/raise-your-hands-and-give-us-your-phones-palestinian-jerusalemites-silenced-their-private-and > accessed 24 March 2024. [43] Adalah (n 36) 5-6. [44] ibid 8-9. [45] Lorenzo Veracini, Settler Colonialism: A Theoretical Overview  (Palgrave Macmillan 2010) 3. [46] Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event  (Cassell 1999) 1. [47] Patrick Wolfe ‘Settler Colonialism and the Elimination of the Native’ (2006) 8(4) Journal of Genocide Research 387-388. [48] Alicia Cox, ‘Settler Colonialism’ ( Oxford Bibliographies , 26 July 2017) 1 < https://www.oxfordbibliographies.com/display/document/obo-9780190221911/obo-9780190221911-0029.xml > accessed 25 March 2024. [49] ibid; Wolfe (n 46). [50] Wolfe (n 46); Wolfe (n 47). [51] David Lloyd, ‘Settler Colonialism and the State of Exception: The Example of Palestine/Israel’ (2012) 2(1) Settler Colonial Studies. [52] Theodor Herzl, The Jewish State (American Zionist Emergency Council 1946); Liora Halperin, ‘Origins and Evolution of Zionism’ ( Foreign Policy Research Institute: Footnotes , January 2015) < https://www.fpri.org/docs/halperin_-_hi_-_origins_and_evolution_of_zionism.pdf > accessed 24 March 2024. [53] Tamara Tamimi, Ahmad Amara, Osama Risheq, Munir Nuseibah, Alice Panepinto, Brendan Ciaran Browne, and Triestino Mariniello, ‘(Mis)using Legal Pluralism in the Occupied Palestinian Territory to Advance Dispossession of Palestinians: Israeli Policies Against Palestinian Bedouins in the Eastern Jerusalem Periphery’ in Noorhaidi Hasan and Irene Schneider (eds), International Law between Translation and Pluralism: Examples from Germany, Palestine and Indonesia  (Harrassowitz Verlag 2022) 264. [54] ibid; Ilan Pappe, Ten Myths About Israel  (Verso 2017) 141. [55] ‘Press Release by the Palestinian Central Bureau of Statistics (PCBS) on the eve of the Forty Two annual commemoration of Land Day’ ( PCBS , 30 March 2018) < http://www.pcbs.gov.ps/post.aspx?lang=en&ItemID=3102 > accessed 24 March 2024. [56] ‘Number of Israeli Settlements and Settlers in the West Bank, by Governorate, 2021’ ( PCBS , 2022) < https://www.pcbs.gov.ps/Portals/_Rainbow/Documents/SETTCurrentMainIndicatorE-2021.html > accessed 24 March 2024. [57] ‘Data on Demolition and Displacement in the West Bank’ ( UNOCHA , 2021) < https://www.ochaopt.org/data/demolition > accessed 24 March 2024. [58] Tamimi et al (n 53) 256. [59] Ahmad Amara, Brendan Ciaran Browne, Triestino Mariniello, Munir Nuseibah, Alice Panepinto, and Tamara Tamimi ‘The Bedouin Communities of Eastern Jerusalem: A New Locus of Power in the Post-Oslo Battle for Palestine?’ (2021) 117 Confluences Méditerranée 106. [60] Zena Agha, ‘Israel’s Annexation Crusade in Jerusalem: The Role of Ma’ale Adumim and the E1 Corridor’ ( Al-Shabaka , March 2018) 1 < https://al-shabaka.org/wp-content/uploads/2018/03/Agha_PolicyBrief_Eng_Mar2018.pdf > accessed 24 March 2024. [61] Mahdi Abdul Hadi (ed), The Palestine Question in Maps: 1878- 2014  (PASSIA 2014) 169. [62] Tamimi et al (n 53) 257. [63] ibid 134. [64] Deniz Altayli, Arab East Jerusalem: A Reader  (PASSIA 2013) 133. [65] BADIL, Forced Population Transfer: The Case of Palestine: Discriminatory Zoning and Planning , (BADIL 2014) 27. [66] The eighteen Bedouin communities are: Abu George Bedouins (Nkheila), Abu George Bedouins (Kassara), Abu Nuwwar, Al-Muntar, Az Za’ayyem Bedouins, Az Za’ayyem Za’atra Herding, Beir Al-Maskoob (A), Beir Al-Maskoob (B), Jabal Al-Baba, Khan Al-Ahmar Abu Al Helu, Khan Al-Ahmar Abu Falah, Khan Al-Ahmar Mihtawish, Khan Al-Ahmar Makab As Samen, Khan Al-Ahmar Wadi As Sider, Wadi Abu Hindi, Wadi Al-A’waj, Wadi Al-Jimel, Wadi Sneysel. [67] Tamimi et al (n 53) 256. [68] Benny Morris, The Birth of the Palestinian Refugee Problem, 1947-1949  (Cambridge University Press 2003). [69] (n 57). [70] Ian Fisher, ‘Israel’s Hard-Liners Want to “Go Big”: Annex a Settlement’  New York Times  (New York, 30 January 2017) < https://www.nytimes.com/2017/01/30/world/middleeast/the-sleepy-israeli-settlement-thats-fast-becoming-a-flash-point.html > accessed 24 March 2024. [71] Jalal Abu Khater, ‘Netanyahu vs not Netanyahu: Israel’s absurd election fiasco’ ( Open Democracy , 24 March 2021) < https://www.opendemocracy.net/en/north-africa-west-asia/netanyahu-vs-not-netanyahu-israels-absurd-election-fiasco/ > accessed 24 March 2024. [72] Amara et al (n 59) 102, 109-110. [73] ‘Monthly Humanitarian Bulletin’ ( OCHA , February 2017) < https://www.ochaopt.org/content/tightening-coercive-environment-bedouin-communities-around-ma-ale-adumim-settlement > accessed 24 March 2024; Report of the Secretary-General (20 January 2016) UN Doc A/HRC/31/43 sec 68. [74] Amara et al (n 59) 111; Field interviews (n 2). [75] Tamimi et al (n 53) 266; Field interviews (n 2). [76] Field interviews (n 2). [77] ibid. [78] ibid. [79] Amara et al (n 59) 106-107. [80] (n 57). [81] ‘46 Bedouin Communities at Risk of Forcible Transfer in the Central West Bank: A Vulnerability Profile’ ( OCHA  2017) < https://www.ochaopt.org/page/46-bedouin-communities-risk-forcible-transfer-central-west-bank-vulnerability-profile > accessed 24 March 2024. [82] Fisher (n 70); Abu Khater (n 71). [83] Tamara Tamimi and Daniela Suarez Vargas, ‘Propaganda Vs. Truth: Israeli Propaganda and Palestinian Demonisation’   ( E-International Relations , 13 February 2024) < https://www.e-ir.info/2024/02/13/israeli-propaganda-and-palestinian-demonisation/ > accessed 24 March 2024. [84]  Field interviews (n 2). [85]  Field interviews (n 2). [86]  United Nations Development Program, ‘Bedouins in the Occupied Palestinian Territory’ ( UN , September 2013) < https://www.un.org/unispal/document/auto-insert-195392/ > accessed 24 March 2024. [87] ibid. [88] Field interviews (n 2). [89] Tamimi et al (n 53) 266. [90] Field interviews by Al-Quds Human Rights Clinic with Bedouin Communities, February 2021. [91] Field interviews (n 2). [92] Field interviews by Al-Quds Human Rights Clinic with Bedouin Communities, March 2021. [93] Field interviews by Al-Quds Human Rights Clinic with Bedouin Communities, April 2021. [94] Field interviews (n 2). [95] Field interviews (n 93). [96] A unit in the Israeli military apparatus that is responsible for dealing with all Palestinian civil issues, including issuance of building permits and work permits, among others. [97] Field interviews (n 93). [98] Interview by Al-Quds Human Rights Clinic with humanitarian organisation, April 2021. [99] ibid. [100] Bell Hooks, We Real Cool: Black Men and Masculinity  (Routledge 2004) 47. [101] Field interviews (n 92). [102] Interview (n 98). [103] Palestinian Center for Policy and Survey Research, ‘Public Opinion Poll No 89’   (PCPSR September 2023) 6 < https://www.pcpsr.org/sites/default/files/Poll%2089%20English%20Full%20Text%20September%202023.pdf > accessed 24 March 2024. [104] ibid 9. [105] Field interviews (n 92). [106] Interview (n 98). [107] ibid; Field interviews (n 92). [108] Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples (2nd edn, Zed Books 2012) 1.