We are the Restitution Study Group (RSG), a New York-based non-profit founded in 2000 to campaign for innovative approaches to healing the injuries of historically exploited people. We have supporters within and act on behalf of communities of descendants of transatlantic enslaved Africans globally. Since 2000, one of our primary efforts has been to secure restitution from organisations complicit in the enslavement of Africans between the 16th and 19th centuries by working in partnership with community advocates in litigation, legislation, genealogical research, and direct action. In later years, our work has focused on fighting for our voices to be heard in relation to the artworks known as the Benin Bronzes. Crafted by master guild workers[1] in the Kingdom of Benin between 1500 and the 1800s,[2] these several thousand pieces proclaim key events in Benin history, showcase the divinity of the oba (the king of Benin), and celebrate the wealth and power of the Benin Kingdom. The bronzes are an important and dynamic spiritual, historical, and cultural link to our ancestors for us descendants of transatlantic enslaved Africans, and the homelands, language, and culture from which we have been separated. They are icons of our conflicted, multi-faceted identities. Some cultural institutions in the Western world have started to ‘repatriate’ bronzes to Nigeria (the modern-day location of the Kingdom of Benin). However, these bronzes have not been placed in a museum for the benefit of the public but have vanished into private hands. The loss of these cultural objects is made more egregious because the full provenance of the bronzes was not examined before they were ‘returned’. Below, we will explore the need for museums to engage properly in provenance research, and to implement more robust procedures, to ensure that the voices of all interested communities are heard. Provenance Taken from Benin City in a British raid in 1897, arguments around the bronzes’ restitution have narrowly focused on the alleged rights of the state of Nigeria to these artworks. However, there can be no doubt that the bronzes, cast from the currency of slavery, must be subject to the rights of the descendants of those whose lives were exchanged for their raw material. We know from contemporary records that manilla bracelets, made from metal mined in central and northern Europe, were used as currency by European slavers, and exchanged with local slavers (including contemporary obas and Benin Kingdom slave traders) in return for enslaved Africans. Recent, cutting-edge scientific research has proven this beyond any doubt, as Dr Tobias Skowronek’s pioneering study of the metallurgical composition of the manillas used by the Kingdom of Benin metalworkers has demonstrated. In Dr Skowronek’s words: Although the importance of European brass, including the potential role of Rhenish sources, in African casting industries has long been recognized, this study definitively identifies the Rhineland as the principal source of manillas at the opening of the Portuguese trade. Millions of these artefacts were sent to West Africa where they likely provided the major, virtually the only, source of brass for West African casters between the 15th and the 18th centuries, including serving as the principal metal source of the Benin Bronzes. […] Manillas had no purpose in European societies: they were a product specifically produced for the African trade and it is clear from documentary sources that Africans were selective in the products they accepted. Edo metalsmiths were likely well aware of the better casting qualities of the Portuguese ‘tacoais’ type manillas, and these were subsequently demanded in trade. Ongoing research may afford additional insights into other West African casting traditions.[3] The currency given in exchange for enslaved people represents those lives lost.[4] We know that in the 16th century, an adult female West African cost 50 manillas; an adult male cost 57.[5] How many destroyed lives therefore does a single Benin Bronze represent? How many displaced families? The bronzes serve as votive vessels for our ancestors’ souls and their memories. They are priceless not because of their artistic merit, but because of this potent spiritual dimension. Western institutions justify handing bronzes over to the descendants of the Oba and Nigerian slavers (those who were not uprooted from their homeland) on the basis of the 1897 conflict, without listening to the voices of us descendants of transatlantic enslaved Africans, who to this day encounter racism and oppression in different parts of the world. Therefore, in order to fully assess any claim made in respect of the bronzes, it is not enough to look to the events of 1897, but rather it is necessary to face the uncomfortable truth about exactly who was involved in the trade of our ancestors, and the rights this confers on descendants of transatlantic enslaved Africans today. How Claims Ought to be Assessed Whilst there is no one consensus amongst museums as to how restitution and repatriation claims should be dealt with, there are common threads. The main issues around eligibility usually focus on the circumstances in which the objects were taken (whether there was any illegality/compulsion); the cultural or spiritual significance of the objects to a particular community or nation; and the historical and scholarly importance of the objects. Above all, close attention must be paid to the moral force of any given claim. Restitution claims are one of the few areas where a moral argument may override legal title, especially as institutions across the world feel increasingly called upon to ‘do the right thing’. The Restitution Study Group has sent letters setting out the moral arguments and our community’s interests in, and rights to, the Benin Bronzes to numerous stakeholders, starting in 2022, before most repatriation decisions were taken. Once the institution’s process for hearing the claim begins, there is no consensus on the steps that should be followed. However, there are instructive guidelines. The Arts Council England has published detailed guidelines entitled ‘Restitution and Repatriation: A Practical Guide for Museums in England’,[6] which offer a wealth of instructive information on the steps institutions should follow when dealing with claims. For example, they should investigate the claim by carrying out (where necessary) further research; they should meet with the claimant to discuss their aims; and they should prepare a report on the claim, to be considered by an independent decision-making body. Following such steps, they should ensure that there is transparency, fairness, and collaboration for all claimant parties throughout the claim process. Given this overarching focus on the moral impetus of a claim, it is astonishing that institutions have not conducted full provenance research before ‘repatriating’ the bronzes, and that the claims of descendants of transatlantic enslaved Africans has been ignored in this sphere. Institutions cannot assert that repatriation has been made on moral grounds, when they are handing over objects to the descendants of elite Africans and have failed to even engage with the claims of the descendants of the enslaved, for whom the bronzes hold almost sacred significance. The Need for Ongoing Debate: A Revised Approach The descendant community’s rights to and interests in the bronzes have been ignored for too long. Western institutions have adopted a reductive and indeed proto-colonial approach to the bronzes’ provenance by focusing solely on the British raid in 1897 and ignoring the circumstances in which the bronzes were created in the first place and the material from which they were cast. Because descendants of transatlantic enslaved Africans continue to be excluded from the ‘dialogue’ around the Benin Bronzes, access to which is tightly regulated by museum curators and Western state representatives, such exclusion is perpetuating the same inequalities that once led to the bronzes’ creation. Indeed, a handful of museums have already ‘jumped the gun’ and ‘returned’ bronzes to Nigeria, while proudly announcing their supposedly anti-racist and anti-imperial credentials on all available channels. This has happened despite our protestations of the fact that those bronzes have since been transferred to a private collection in Nigeria. They are now exceedingly unlikely to be accessible to the general public in Nigeria, let alone to members of our community.[7] The bronzes were not so much ‘returned’ as simply ‘handed over’. The presumption of a number of Western institutions has been that they do not need to consult with us, nor even hear us out. These acts of ‘restitution’ are a fiasco and represent an incalculable loss to our community. Framing the debate in a way that ignores much of the objects’ provenance is not only historically inaccurate but allows West African elites to avoid taking responsibility for their communities’ historic role in the slave trade. There is virtually no chance that the objects will remain accessible to our community once they have been handed over to private collections in West Africa. The spiritual connection we have with the bronzes will be forever lost, as will be the educational opportunity and the chance to find innovative ways of healing and overcoming painful aspects of the history of slavery, which literally is not ‘black and white’. This is not something any institution of learning and education should take lightly. Unfortunately, this statement must be directed at the University of Cambridge, too. The origins of the bronzes lie in slavery. The act of forcing people into chattel enslavement—capturing them; shackling them like animals; taking them away from their country and homeland; and transporting them overseas in squalid conditions in order to undertake forced and unpaid labour—is one of the most egregious and harrowing examples of concerted, organised violence in human history. Indeed, according to the Transatlantic Slave Trade Database, between 1525 and 1866, 12.5 million African people were enslaved and transported to the New World. Two million of those captives died on the voyage in appalling conditions, from disease, malnutrition, and, in some cases, murder.[8] Slavery remains a problem to this very day. A recent CNN report has revealed how Benin City is the heart of modern-day human trafficking.[9] A meaningful debate about the Benin Bronzes requires consideration of history without editing out those parts that may be uncomfortable for African elites today. That includes inviting the government of Nigeria and the oba of Benin to examine the roles that their communities played in perpetuating violence against fellow West Africans, which led to them using the proceeds of slavery that are the starting point in the bronzes’ provenance chain. To hand over further bronzes to Nigeria and/or the oba or his family, without having this discussion with descendants of transatlantic enslaved Africans, thereby denying us any say in the future of the bronzes, would be like enslaving our ancestors all over again. Our voice must be heard. Deadria Farmer-Paellmann, Esther Xosei, and Sheila Camaroti Silva Deadria Farmer-Paellmann is a lawyer and the executive director of RSG. Her pioneering work has led to legislative change in New York concerning the roles of American banks in financing chattel enslavement and the transatlantic slave trade, and today she coordinates the campaign for joint rights over the Benin bronzes for descendants of transatlantic enslaved Africans globally. Esther Xosei is a leading scholar and activist in the International Social Movement for Afrikan Reparations in the UK. She is co-vice chair of the Pan-Afrikan Reparations Coalition in Europe and serves as the legal advisor for the Stop the Maangamizi: We Charge Genocide/ Ecocide Campaign. Sheila Camaroti Silva is a Brazilian descendant of enslaved Africans. Now resident in Germany, she campaigns for greater historical literacy around slavery and forced migrations and is an advocate for RSG’s work globally. [1] Barnaby Phillips, Loot: Britain and the Benin Bronzes (Simon and Schuster 2021) 6: ‘For hundreds of years, the Igun Eronmwon guild worked for its one and only patron, the oba. He provided security—slaves, money, and other gifts—but little freedom’. [2] See Oriiz Onuwajeobaro Ikime, The Benin Monarchy: An Anthology of Benin History (Whitefox Publishing Ltd 2020) 205. [3] See Tobias B Skowronek et al, ‘German brass for Benin Bronzes: Geochemical analysis insights into the early Atlantic trade’ (2023) 18(4) PLOS ONE e0283415. [4] Dan Hicks, The Brutish Museums: The Benin Bronzes, Colonial Violence and Cultural Restitution (Pluto Press 2020) 219: ‘Most [bronzes] were cast from brass, melting down the manillas and wire that the copper producers of Bristol, London and Liverpool traded for enslaved people, transforming the very substance of a transaction between humanity and inhumanity, objecthood and subjecthood, and forming memory markers for significant events’. [5] Bryan Freyer, Royal Art of Benin: In the Collection of the National Museum of African Art (Smithsonian 1987) 54. [6] Arts Council England, ‘Restitution and repatriation: a practical guide for museums in England’ (Arts Council England) accessed 10 April 2024. [7] Oliver Moody, ‘Berlin’s Benin bronze return a fiasco as artefacts vanish’ The Times (London, 8 May 2023), accessed 10 April 2024. [8] ‘Trans-Atlantic Slave Trade Database’ (Slave Voyages) accessed 10 April 2024. [9] Nima Elbagir, Hassan John, and Lillian Leposo, ‘A smuggler’s chilling warning’ (CNN World, 27 February 2018). See Phillips (n 1) 32: ‘slavery had existed in Edo society before the Europeans arrived and would continue after Europeans had abandoned the trade’.

‘It is authority and not truth that makes the law’[1] German philosopher Hannah Arendt says in her book On Violence: ‘The authority does not need to be justified itself, because it is an organic part of the existence of political groups, but it needs legitimacy. As for violence, it can sometimes be justified, but it’s impossible, and absolutely, to be legitimate’.[2] This leads us to the main question which this paper tries to analyse and respond to, taking the Syrian authority in place since 1963 as a case study: How does political authority legitimise violence against its opponents? Utilising Arendt’s definitions in her book The Origins of Totalitarianism, one can distinguish between two eras. The first is the era of Hafez al-Assad (1970-2000). This was a secret police state, according to Arendt’s introduction of the Bolshevik model in Stalinist. The second is the era of Bashar al-Assad (2000-present), who surpassed his father using violence, and moved Syria to a totalitarian domination model during his office. This distinction is vital for understanding the presence of violence in the state structure and its relationship to the ruling authority in Syria. What distinguishes the Syrian experience from the Bolshevik and Nazi political systems studied by Arendt is that it did not carry the ideology of socialism or the supreme racial superiority to ensure its control to the same extent. Instead, it was an authority that came with the power of violence and domination through it from the very beginning. After nearly a decade of seizing power, Hafez al-Assad developed his theory of fighting the enemy so that his institutional identity for violence became the need to fight the external or internal enemy in times of war and peace. The enemy is the enemy of the nation, the homeland, and the President: al-Assad systematically eliminated any separation between these areas. With time, state institutions lost any actual control over violence, especially after the 2011 revolution, which allowed violence to swallow everything in return for him staying in power. As Arendt writes, the stage in which the ‘police state began to eat its children’, is the stage of totalitarian domination based on terrorism.[3] The relationship of violence to the state has been debated for a long time. In his lecture Politics as a Vocation, the German sociologist Max Weber famously defined the state as following: ‘We have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory…The state is considered the sole source of the “right” to use violence’.[4] States use violence to ensure public order, but this use is always possible to question in democratic countries that allow accountability by an independent press and an independent judiciary. But in dictatorships, such as the Syrian regime, violence goes beyond its role of protecting the people or public security, despite slogans maintained by dictatorial authorities. Rather, violence moves to play a constitutive role in the production and maintenance of political power itself in authoritarian regimes. Moreover, when political authority depends on violence in this way, law becomes a tool to legitimise the violence. Authoritarian political authorities control and use law not only as a monopoly of legitimate symbolic violence, but to legalise violence, to ensure that they remain the only party that has the legal right to practice violence and ensure that they remain in power by practicing this violence, ie, by using its power as a state. As the German jurist Carl Schmitt—who was close to the Nazi Party—suggests, legal orders are based on sovereign decisions, and not legal norms.[5] So, in the discussion of the relationship between violence and legitimacy, we can ask: How does a political system which monopolises the power of law use this legal order to justify its violence? By studying the Syrian case during the rule of the Assad regime (father and son), bearing in mind that this regime relied on historical, legal, or political precedents, we attempt to answer this question. For this purpose, the study is based on qualitative research, and draws on the work of Arendt, Weber, and Schmitt. The analysis of how law is used to legitimise state violence also utilises the theories of French sociologist Pierre Bourdieu, in his article The Force of Law, and particularly the concept of the legal field. Because of the difficulties imposed by the Syrian government in accessing information—in particular related to human rights issues—it was not possible to rely on official government data. But with the help of reports by human rights organisations, we were able to document indicators of the violence of the regime. This is in addition to the use of press articles, studies by Syrian human rights defenders, and present humanitarian examples of victims of legal violence in Syria who were arrested and tried before exceptional judicial bodies and spent 10-17 years in prison. Foundational violence: the juridical field in Syria This study suggests that the Syrian authority legitimises its violence by relying on law. According to Arendt, this legal approach puts together practice and discourse to normalise violence and thus shifts the question from: What is moral, to what is legal? The significance of this normalisation of violence is explained by Bourdieu as follows: ‘It makes sense that, in a complex society, the universalization effect is one of the mechanisms, and no doubt one of the most powerful, producing symbolic domination (or, if one prefers to call it that, the imposition of legitimacy in a social order). When the legal norm makes the practical principles of the symbolically dominant style of living official…The universalization effect, which one could also term the normalization effect, functions to heighten the effect of social authority already exercised by the legitimate culture and by those who control it. It thereby complements the practical power of legal constraint’.[6] Bourdieu also notes that: ‘The law is the quintessential form of “active” discourse, able by its own operation to produce its effects. It would not be excessive to say that it creates the social world, but only if we remember that it is this world which first creates the law’.[7] In Syria, it is the Sovereign Dictatorship who created the law. The effect of legal action turns into a legitimisation of the practices of this political authority, and normalisation of violence in terms of being one of the effects of the legal action itself. Accordingly, the law is not only a tool of authority—as Bourdieu points out—but also an attempt to formulate authority as a legal authority and ensure its continuity. As Bourdieu writes: ‘Juridical labor has multiple effects. It provides the guarantee that, in the absence of a revolution which would upset the very foundation of the juridical order, the future will resemble what has gone before’.[8] Discussing the legalisation of state violence also motivates an engagement with Schmitt’s work. Schmitt linked power to the ability to define law and the exception to it. In his words: ‘the sovereign is he who decides on the state of exception: If there is some person or institution, in a given polity, capable of bringing about a total suspension of the law and then to use extra-legal force to normalize the situation, then that person or institution is the sovereign in that polity’.[9] Moreover, Schmitt reasons that: ‘If a sovereign, so understood, exists, its authority to suspend the law does not stand in need of positive legal recognition, since the law’s applicability itself depends on a situation of normality secured by the sovereign’.[10] This jurisprudence theorising established for Schmitt the legitimacy of absolute dictatorship, or what Arendt would later call ‘Totalitarianism’, characterised by terror. As Schmitt argues: ‘The question of the legitimacy of law thus turns on the question of the legitimacy of an identity-constituting sovereign exercise of foundational violence’.[11] In Syria, Hafez al-Assad succeeded—by playing a leading role in formulating the 1963 military coup, and then his personal, white coup against the party’s comrades in 1970—in making himself the person with the ability to determine the exception. This power of sovereignty enabled al-Assad to determine the exception when he declared himself president of the country and ensure that emergency laws continued in Syria for 49 years. With al-Assad, foundational violence became identity-constituting sovereign, and the basis of al-Assad’s legitimacy as sovereign dictator. Since emergency laws give power to the government to the detriment of the juridical field, then the juridical field in Syria cannot be understood without reading it as a field created by a dictatorial authority whose constituent identity is violence. Accordingly, there is no autonomy of the legal field from the state, which brings to mind Hobbes’s dictum that: ‘It is authority and not truth that makes the law’.[12] Yet, al-Assad needed to justify this violence, and for that he needed a common political identity. As Schmitt argues: ‘A sovereign dictator is a dictator who does not defend an already existing constitution but attempts to create a new one and who does so not by his own authority but in the name of the people’.[13] Thus, in the name of the people, al-Assad used emergency law. Even the constitution, which he tailored and implemented to suit his will and interpretations, was limited by the upper authority of emergency law. For example, he did not designate himself as the head of the country’s Supreme Constitutional Court, which consists of 11 members. However, all these members are named and appointed by him. Al-Assad sought to eliminate all his political opponents and present a model of terror that Syrians would not easily override. In the 1980s, al-Assad enabled his power as sole ruler through two violent incidents, which are not the only ones, but are foundational in understanding the legitimating identity of violence. The first, known as ‘Hama massacre’ is one of the founding events of the direct, broad-spectrum violence of the al-Assad police state. Second is the campaign of arrests of all his opponents, which effectively killed political life in Syria. In his definition of what he called the ‘juridical field’, Bourdieu remarked the following: ‘The social practices of the law are in fact the product of the functioning of a “field” whose specific logic is determined by two factors: on the one hand, by the specific power relations which give it its structure and which order the competitive struggles (or, more precisely, the conflicts over competence) that occur within it; and on the other hand, by the internal logic of juridical functioning which constantly constrains the range of possible actions and, thereby, limits the realm of specifically juridical solutions’.[14] Detailed analysis will show that the juridical field in Syria was established during the rule of the al-Assad family, according to the rule of exception established by Schmitt, which radically changed its logic. Therefore, this study discusses the legal field established according to the status of the exception. The emergency law issued by Legislative Decree No. 51 in 1962 stipulated two main articles. Article 2 read: ‘The state of emergency is declared by a decree taken in the Council of Ministers convened under the chairmanship of the President of the Republic and by a two-thirds majority of its members, provided that it is presented to the House of Representatives in its first meeting’.[15] Paragraph (b) of Article 3 added: ‘The decree determines the restrictions and measures that the martial ruler may take as stipulated in Article 4 of this Legislative Decree without prejudice to the provisions of Article 5 thereof’.[16] But in reality, the leaders of the 1963 military coup were the ones who announced the implementation of the emergency law, and the same declaration was satisfied with repealing the decree and thus eliminating what was stipulated in paragraph (b). We could not find the official text of Military Decree No. (2) of 1963 that reiterated the emergency law enforcement. However, we found press articles that refer to it as follows: ‘The state of emergency is declared in all parts of the Syrian Arab Republic and even Further notice’, but without specifying the exact source. This was not announced in a decree published in the official newspapers, but rather through what is known as Statement No. (2) that follows the Military Statement No. (1) announcing the military coup. The legal order in Syria—as Schmitt concludes—‘is based on a sovereign decision and not on a legal norm’.[17] A sovereign decision based on exception. The exception according to which the juridical field was established in Syria is manifested not only by the exceptional declaration of the emergency law itself but also by not providing any specifics. Consequently, the Sovereign, in this case Hafez al-Assad, was free to draw up mechanisms and measures for implementing the state of emergency according to his will. Thus al-Assad defined positive laws and formed the mechanisms for implementing violence within a legal frame. Based on this exception, free of time limitations, the sovereign authority has established exceptional judicial bodies, such as the Supreme State Security (SSSC) and, later, the Terrorism Cases Court. These two bodies, as well as the Military Field Court, are all exceptional forms without any timeframe for their mission. The court operates as long as the exceptional laws exist, with no ceiling to its mission. In fact, the SSSC was not abolished until the 2011 revolution, and Military Field Court was only abolished 3 September 2023.[18] The absence of time restrictions for these exceptional judicial bodies is the second characteristic of the legal field which, congruent with the absence of the finiteness of time at the formal narrative and the ideological slogans of power, emphasise the infinity, the eternity, and the absolute permanence of this exception. Building on the legitimacy of power in defining the exceptional, the juridical field in Syria was built as a field to regulate the domination of the dictator or the leader of the ruling party. Max Weber describes this as ‘organized hegemony’, which ‘calls for continuous administration, requires that human conduct be conditioned to obedience towards those masters who claim to be the bearers of legitimate power. On the other hand, by virtue of this obedience, organized domination requires the control of those material goods which in a given case are necessary for the use of physical violence’.[19] While the separation of legislative, executive, and judicial powers are one of the conditions for democratic state, in the Syrian model organised domination was represented by the president’s monopoly of those three powers, in the text of the constitution. The following articles are examples of the 2012 constitution that al-Assad approved after the 2011 revolution. Still, it was a legal aim to impose more domination that derives its legitimacy from a constitutional text. Article 105: The President of the Republic is the Commander in Chief of the army and armed forces; he issues all the decisions necessary to exercise this authority. He might delegate some of these authorities. Article 108: Power to pardon. The President of the Republic grants special amnesty and might reinstate individuals. Article 111: 1. The President of the Republic might decide to dissolve the People’s Assembly in a justified decision he makes. Article 132: The judicial authority is independent; and the President of the Republic ensures this independence assisted by the Supreme Judicial Council. Establishment of judicial council Article 133: 1. The Supreme Judicial Council is headed by the President of the Republic; and the law states the way it shall be formed, its mandate and its rules of procedures.[20] This monopoly of domination breaks the conditions of the legal game referred to by Bourdieu: ‘The juridical field is a social space organized around the conversion of direct conflict between directly concerned parties into juridically regulated debate between professionals acting by proxy. It is also the space in which such debate functions. These professionals have in common their knowledge and their acceptance of the rules of the legal game’.[21] In Syria, this legal field formed based on exception does not recognise the balance of power between the dominant parties. It is not a field of organising discussion, but rather a field for imposing the domination and control of one party over another. Upon that, a judge is no longer a ‘mediating party’ but rather an implementer of the political will. Even some judicial bodies did not require legal knowledge when appointing the head of the judicial body but instead focused on his military rank, as in Military Field Court. In the Assad regime, and as Arendt says: ‘In these ideologies, the word “law” constantly changes its meaning. Instead of being a fixed framework where human movements and actions take their place, the latter has become an expression of the movement itself’.[22] With this, the law is not a field of punitive action only. The imposition of power is manifested through prohibition and criminalisation, punishing opponents, and rewarding loyalists. This protection code eliminated any possibility of establishing what is known as the state of law. The loyal men, members of the security establishment, are above the law and are even protected by it. So al-Assad, the father, and then Bashar al-Assad, released a set of decrees that would protect the agents and members of this institution from legal accountability. Whereas ‘agents of the intelligence services (Military Intelligence, Air Force Intelligence, and General Intelligence) are protected from prosecution by Article 16 of the law establishing the State Security Administration issued by Legislative Decree No.14 and by Article 74 of the Law of Internal Organisations of the Administration State security and the rules of service for its employees issued by Legislative Decree No. 549. The texts of these two articles is as follows: Article (16): It is not permissible to prosecute any of the employees of the State Security Department for crimes they commit while carrying out the specific tasks entrusted to them or in the course of carrying out them except by a prosecution order issued by the director. Article (74): It is not permissible to prosecute any of the employees of the State Security Department, or those who are seconded or seconded to it, or those who contract with it directly before the judiciary, in the crimes arising from the job, or in the course of carrying it out before referring it to the disciplinary board in the administration and issuing a prosecution order by the director.[23] In 2008, three years before the outbreak of the Syrian revolution, Bashar Al-Assad issued Legislative Decree No. 69, which amended the Syrian Military Penal Code. The articles of this new decree stipulated limiting the decision to prosecute police, political security, and customs personnel accused of practicing torture to the General Command of the Army and Armed Forces, even though they report administratively to the Ministry of Interior. Noting that in 2004 Syria ratified the Convention against Torture, the intelligence services in Syria, or the secret police in Germany, are both, as Arendt says: ‘an embodiment of law itself’.[24] The authority in Syria does not face a conflict from any other party in the interpretation of the legal text but possesses complete control, or absolute appropriation, in its determination and application. According to Bourdieu: ‘Control of the legal text is the prize in interpretive struggles’.[25] So, al-Assad ensured by his possession of the Exception Report that only his power was to read, interpret, and reframe the legal text, as Hafez al-Assad did when he amended the work of the Military Field Court to include times of peace as well as war.[26] In its language, provisions, and applications, the legal text is a means and a tool of political authority to suppress public freedoms and control the masses.. Legal language and the normalisation of stigma Attempting to understand the impact of the legal field in Syria requires researching what Bourdieu called the normalisation of violence. As Bourdieu explains: ‘The law, an intrinsically powerful discourse coupled with the physical means to impose compliance on others, can be seen as a quintessential instrument of normalization’. Since the time of the father, Syrian authority succeeded in merging its legal discourse with its official discourse, to produce a normalisation of violence that pervades the entire society. Opponents of the state have lost their humanity through the repetition of the official narrative vocabulary in official speeches, in the media, slogans, and as well as in forced daily repetition in schools, by words which announce political opponents as if they are enemies. The Syrian totalitarian authority spreads terror and fear of the other. The enemy is an enemy of the ideology, the regime, the president, the security establishment, the army, and most importantly, an enemy of the state. Any violation made by an opponent, activist, writer, or whoever, is considered a violation or not by the security agents as they are the representatives of the president. These are the ones who have the authority and the right to determine if there is a betrayal committed. Although the legal text does claim to defend the nation, the arbitrariness of its power is revealed by the arbitrariness of sentencing. As Arendt writes in The Origins of Totalitarianism: ‘The aforementioned totalitarian regime only acted under the guidance of the law, but not as the Nazi or Bolshevik regime claimed that its laws were derived from the laws of nature and history’.[27] The Assad regime’s laws stemmed only from the sovereign dictatorship and the will of the ruling individual. Totalitarian legitimacy here makes an exception with the aim of saving the loyal group, and saving itself from what Arendt refers to as the ‘objective enemy’, who here has become the enemy of the ‘nation’, which is itself the homeland, security, and represented in the person of the individual dictator.[28] So, laws—whether exceptional laws or ordinary—become a representation of an action to eliminate the objective enemy. The nation, the revolution, the party, the symbols of the state: this is a vocabulary repeated in Syrian laws, which Syrians know very well. In their morning slogans they were forced to repeat it throughout their lives. They know these words, but not their meaning. They are—as they appear in the Syrian Penal Code—empty and unidentifiable words. But this ensures that enforcers of state authority can arrest individuals, torture them, and keep them in prison for many years. Specifically, it includes the following articles, many of which have equivalents in democratic or republican regimes such as France. Article 278 of the Penal Code: Whoever undertaking acts, writings, or speech unauthorized by the government that exposes Syria to the danger of belligerent acts or that disrupt Syria’s ties to foreign states. Article 285 of the Penal Code: Whoever, during wartime or when it is expected to break out, issuing calls that weaken national sentiment or awaken racial or sectarian tensions while Syria is at war or is expecting a war. Article 286 of the Penal Code: Whoever reports in Syria news which he knows that are false or exaggerated information that weakens national sentiment while Syria is at war or is expecting a war. Article 307 of the Penal Code: every act, every writing, and every speech intended or results in provoking sectarian or racial strife.[29] There is no accurate count in Syria of the number of prisoners of conscience who have been prosecuted according to these two articles (285-286). But by analogy, Human Rights Watch reports in its 2009 report Far from Justice that, according to the observation they conducted for the hearings trial of detainees of conscience in Syria before the Supreme State Security court: Of the 237 cases it is known to have decided since January 2007, the SSSC sentenced at least 153 of the defendants on the basis of vague and overbroad offenses, such as ‘issuing calls that awaken racial or sectarian tensions’, spreading ‘false or exaggerated information that weakens national sentiment’, or undertaking ‘acts that…disrupt Syria’s ties to foreign states’. The Syrian government has long relied on such broadly worded ‘security’ provisions in its penal code, primarily based on speech or writings, as its primarily lever to silence critics, or perceived critics.[30] According to the report, the ratios were distributed as follows: (34) People were tried according to Article (278). / (104) people were tried according to Article (285). / (6) People were tried according to Article (286). / (9) People were tried according to Article (307).[31] The Media Law Promulgated No.108 of 2011 provides a clear example of the problematic legal language, in terms of being an unmeasurable rhetorical language that allows a wide scope for the sovereign authority to exert violence on whoever it wants. Article 12: The media is prohibited from publishing… 1. Any content that would prejudice the national unity, and the national security, or offend divine religions and religious beliefs, or stir sectarian or doctrinal strife. 2. Any content that incites the commission of crimes and acts of violence and terrorism or incites hatred and racism. 3. News and information related to the army and the armed forces, except for what is issued by the army and the armed forces, and it is permitted to publish it. 4. All that is prohibited from being published in the 'General Penal Code' and the legislation in force, and everything that is prohibited by the courts from publishing it. 5. Everything that affects the country’s symbols.[32] But who can say what the ‘country’s symbols’ are and what ‘touches them’? According to Bourdieu: ‘Law is the quintessential form of the symbolic power of naming that creates the things named, and creates social groups in particular. It confers upon the reality which arises from its classificatory operations the maximum permanence that any social entity has the power to confer upon another, the permanence which we attribute to objects’.[33] This means that Assad’s sovereign authority used laws to implement its political identity. As Schmitt argues, ‘identification is possible only in virtue of the prior identity of all citizens as members of a group constituted by a shared friend-enemy distinction’.[34] After March 2011, the Syrian media used inflammatory vocabulary that divided the Syrian population into ‘honourable citizens’, ‘infiltrated citizens’, and ‘traitors’. Another time, as ‘agents’ as well as ‘the Salafists’. The media used the worst kind of discourse when it stigmatised the protesters as nothing more than traitorous foreign tools, inciting calls to kill and drag them. Examples include the Al-Dunya channel’s report on Talbisa in Homs, on 5 November 2011, or worse, its report after the mascara of Daria on 25 August 2012.[35] We can classify some of the words being used into two categories: This division made by the hegemonic power in Syria—between a stigmatised, disgraced group and a group regarded with honor—culminated at the national level with the Syrian president telling the world in an official speech in July 2015 that ‘Syria is not for those who live in it or who holds the Syrian nationality but for those who defend it’.[36] Normalisation of state violence To normalise state violence, fear should control all people, excepted for those whom the Sovereign dictatorship provides security. Hence, a political activist was not arrested as an individual, but his wife, father, sisters, and even his friends were arrested, if an intelligence agent—representing sovereign power—decided so. In the case of Nizar Muradni, the political activist in the Communist Action League in Syria, his wife was arrested with him for her activity in the party and to pressure him, but his mother was also arrested to pressure him to confess in the investigation. All these actions—arbitrary arrest, enforced disappearance, torture and ill-treatment, unfair trials, extrajudicial executions, security oversight, prevention of individual and intellectual freedoms, and the abolition of political life—all were legal acts by the power of exception, the power of emergency law. Or as Arendt says: ‘Terrorism become the legitimacy if the law becomes a law for the movement of a supra-human force’, and ‘citizens of the totalitarian state are only allowed to be the implementers of the law that accompanies it (the movement) or be victims of it’.[37] Article 4 of the emergency law, which was declared operational between1963 and 2011 (when it was replaced by the anti-terrorism law) declares: - Putting restrictions on the freedom of persons meeting, residence, moving and passing in certain places or times, and detain a suspect or those who are dangerous to security and public order in custody precaution, and authorize the investigation of persons and places at any time, and to assign any person to perform any of the tasks. - Monitor messages and calls of any kind, and monitor newspapers, pamphlets, files, printing, publications, broadcasts, and all means of expression, advertising and advertisement before publishing, seizing, confiscating, disabling, canceling their concessions, and closing their printing houses). Two simple texts with a total of no more than four lines were sufficient to include a clear breach of sixteen of the thirty articles of the Universal Declaration of Human Rights.[38] This is an example of the legal field becoming an area for symbolic violence practiced by authority on one hand, and a tool for applying direct, physical violence on other hand. Where these laws and bodies are mostly exceptional, they are based on legal expressions and formulas that are not measurable. Only sovereign authority determines it interpretation. Bourdieu suggest that ‘The symbolic imposition of power, which only succeeds because it is fully based in reality. Juridical ratification is the canonical form of all this social magic. It can function effectively only to the extent that the symbolic power of legitimation, or more accurately of naturalization ‘since what is natural need not even ask the question of its own legitimacy’.[39] The multiplicity of legal texts and bodies, and the open time range for nearly half a century, in addition to the inclusion of enforcement mechanisms against civilians and military personnel, all turned the exceptional into the normal. It is legal in the sense that it is based on a legal text and has a legal formula and legal effect—even if it violates the rules of the constitution itself or other legal articles of the country’s laws—as Schmitt sees it, because it comes from a sovereign authority. Through this legal system, the political authority legitimises its violence. As Bourdieu writes: ‘The result of the separation between judgments based upon the law and naive intuitions of fairness is that the system of juridical norms seems (both to those who impose them and even to those upon whom they are imposed) totally independent of the power relations which such a system sustains and legitimizes’.[40] In other words, the system of legal rules legitimises the power relations between a hegemon, or authority, and the subjects of domination. We can present a horrifying example of the legalisation of symbolic and physical violence in Syria by returning to the Military Field Court, which continued its work even after the abolition of the emergency law. A machine to implement terror and carry out various wide-spectrum human rights violations, we are talking about thousands of death sentences, enforced disappearances, and cases of torture. In its report, Sednaya Prison: Human Slaughterhouse, Amnesty International writes: The first executions related to the Syrian crisis began in September 2011, according to former staff at Sednaya prison, for the first four months, it was usual for between seven and 20 people to be executed every 10-15 days. For the following 11 months, between 20 and 50 people were executed once a week, usually on Monday nights. For the subsequent six months, groups of between 20 and 50 people were executed once or twice a week, usually on Monday and/or Wednesday nights. Witness testimony from detainees suggests that the executions were conducted at a similar—or even higher—rate at least until December 2015. Assuming that the death rate remained the same as the preceding period, Amnesty International estimates that between 5,000 and 13,000 people were extra judicially executed at Saydnaya between September 2011 and December 2015. Amnesty International does not have evidence of executions after December 2015. However, detainees are still being transferred to Saydnaya, “trials” at the Military Field Court have continued, and there is no reason to believe that such extrajudicial executions have stopped. Since December 2015, therefore, thousands more detainees are likely to have been hanged. According to a former prison official and detainees who witnessed the executions, the number of people killed by hanging at Saydnaya increased during the weeks prior to and after the presidential amnesties for detainees issued after September 2011, which were on 10 January 2012, 23 October 2012, 16 April 2013, 30 October 2013 and 9 June 2014.[41] In a report on the trial to which these victims were subject, Amnesty adds: The whole process is done while detainees are handcuffed and blindfolded, although sometimes the gang is removed from their eyes the moment they appear before the judge. One trial takes between one and three minutes, and the judge generally relies on ‘confessions’ extracted under torture to determine the verdict that he will issue. The rulings of this court vary between life imprisonment and execution, and detainees who are tried before the Military Field Court are not allowed to contact the lawyer, or know the details of the ruling issued against them.[42] Despite the human rights violations documented in post-2011 Syria, this killing machine remains inaccessible, with no accurate numbers for the victims. Nonetheless, in July 2018, the Syrian regime announced, indirectly, that it had executed hundreds detained in Sednaya—human rights activists, political opponents, and intellectuals who had been involved in the revolt in 2011, before the popular movement turned into an armed movement—through what is called a family statement (the Family Civil Registration extract). Families can request these from civil registry departments in their area, in which the names and status of family members are mentioned. In the fields of the persons concerned, the families found that what was written was: Deceased. After more than 60 years in power, and after the 2011 revolution that shook its authority, the Syrian government has exerted more violence and sought more laws trying to legalise and legitimise its violence. It was left with nothing except ‘terror in order to maintain hegemony’, as Arendt put it.[43] The Syrian regime decided that execution or brutal detention was the only way to exterminate the ‘enemies of the state’: its own people. As a result, in 2017, Bashar al-Assad declared in an official speech that the country lost a lot of its youth and a lot was destroyed, but they succeeded in creating a homogeneous society. Yara Bader Yara Bader is a Syrian journalist and a human rights activist. Throughout her career, Yara has worked to expose the conditions inside the detention centres in Syrian and the torture conducted by the Assad regime. In 2012, alongside 15 journalists, she was arrested by the intelligence forces in Syria for her work. Since her escape from Syria, Yara has continued to help victims get their voices heard through her work with the Syrian Centre for Media and Freedom of Expression. In 2015, she was a recipient of Human Rights Watch Alison Des Forges Award. [1] See Lars Vinx, ‘Carl Schmitt’ (The Stanford Encyclopedia of Philosophy, 29 August 2019) accessed 10 February 2024. [2] Hannah Arendt, On Violence (first published 1970, Ibrahim al-Ariss tr, second edn, Arabic Print-Dar Al Saqi 2015) 46. [3] ibid 50. [4] Max Weber, ‘Politics as a Vocation’ in HH Gerth and C Wright Mills (eds) From Max Weber: Essays in Sociology (first published 1919, Oxford University Press 1946) 77­128 accessed 10 February 2024. [5] See Vinx (n 1). [6] Pierre Bourdieu and Richard Terdman, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 38 Hastings Law Journal 814. [7] ibid. [8] ibid. [9] See Vinx (n 1). [10] See ibid. [11] See ibid. [12] See ibid. [13] See ibid. [14] Bourdieu and Terdman (n 6). [15] ‘Text of the Syrian Emergency Law of 1962’ (Al Jazeera, 11 August 2011) Available online in Arabic  accessed 10 February 2024. [16] ibid. [17] See Vinx (n 1). [18] ‘Ending’ the work of military field courts responsible for ‘executing thousands’ (DW, 3 September 2023) Available online in Arabic  accessed 10 February 2024. [19] Weber (n 4). [20] Syrian Arab Republic's Constitution of 2012 (2021). Generated from the repository of the Comparative Constitutions Project and distributed on constituteproject.org  accessed 10 February 2024. [21] Bourdieu and Terdman (n 6). [22] Hannah Arendt, The Origins of Totalitarianism (first published 1951, Antoine Abu Zaid tr, second edn, Arabic Print-Dar Al Saqi 2016) 250. [23] ‘A new decree protects security personnel accused of torture from prosecution’ (Syrian Human Rights Committee, 12 October 2008). Available online in Arabic accessed 10 February 2024. [24] Arendt (n 22) 192. [25] Bourdieu and Terdman (n 6). [26] Haitham Al-Maleh, ‘The nature of the military field courts and the legality of the rulings issued by it’ (Committees for the Defense of Democracy Freedoms and Human Rights in Syria). Available online in Arabic  accessed 10 February 2024. [27] Arendt (n 22) 246. [28] ibid 252. [29] ‘Syrian Penal Code 1949’ (25 January 2019). Available online in Arabic accessed 10 February 2024. [30] ‘Far From Justice – Syria's Supreme State Security Court’ (Human Rights Watch, 24 February 2009)  accessed 10 February 2024. [31] ibid. [32] Legislative Decree 108 of 2011. Media Law. Available online in Arabic  accessed 10 February 2024. [33] Bourdieu and Terdman (n 6). [34] See Vinx (n 1). [35] ‘تقرير قناة الدنيا عن مجزرة داريا 25/8/2012-من تقديم ميشلين عازر’ (YouTube, 9 September 2015) accessed 10 February 2024; ‘2011- تقرير قناة الدنيا حول تلبيسه في حمص 5-10-‘ Al-Dunya TV (YouTube, 6 October 2012) accessed 10 February 2024. [36] Krishan Muhammad, ‘The scandalous sentence in Al-Assad’s speech’ Al-Quds Al-Arabi (28 July 2015)  accessed 10 February 2024. [37] Arendt (n 22) 252. [38] Al Jazeera (n 15). [39] Bourdieu and Terdman (n 6). [40] ibid. [41] ‘Syria: Human slaughterhouse: Mass hangings and extermination at Saydnaya Prison, Syria’ (Amnesty International, 7 February 2017)  accessed 10 February 2024. [42] ibid. [43] Arendt (n 2) 49.

Introduction ‘Drown them in the details’, a long-standing strategic tradition of the Syrian government, was cited by Syria’s foreign minister, Walid al-Muallem, in December 2011, after signing the Arab League agreement that allowed a mission to enter Syria to monitor human rights violations, and to ensure that the Syrian government implemented the Arab Initiative.[1] The Arab League peace initiative included ending the crackdown on protests, withdrawing the army from the cities, and giving the Arab mission complete freedom to visit detention centres. In the press conference following the signing of the agreement, al-Muallem said: ‘If we are going to drown the mission in the details, they must learn to swim’, in response to a journalist who asked what the intentions are behind Syria signing, and whether Syria will drown the Arabs in the details, so that the Arab Initiative would take several years to be implemented.[2] Weeks after the UN High Commissioner for Human Rights, Navi Pillay, had stated that the Syrian Government ‘has manifestly ignored the pleas and condemnations of the international community at all levels’, the United Nations nonetheless welcomed this agreement.[3] The agreement was, however, never implemented. The Arab League monitors withdrew from Syria because the bloodshed continued. In his concluding report, the Arab Mission head Mohammed al-Dabi said that the Syrian government’s ‘intentions towards the mission since its formation were insincere, and more generally, not serious’.[4] Examples of the Syrian government’s insincerity and manipulation of its pledges and obligations under the Arab agreement and other related agreements include: Fixing fake town signs to mislead observers into areas loyal to the government. Painting olive green military vehicles with blue, so as to avoid withdrawing the army from inside the cities. Transferring detainees from detention centres to buses and circling them around the city between 8am and 5pm, in case observers decided to visit detention centres. Grasping ‘the devil’ in the details of the perpetrator governments’ reactions to the justice and human rights advocacy actions is crucial to the release of human rights defenders, lawyers, and humanitarian organisations. This will provide decision makers with the insight to plan high-impact and low-effort strategies to address and prevent grave violations of human rights in Syria. In this paper, I closely examine two recent cases where the Syrian government apparently acted in response to the international pressures to end its grave violations of human rights and consider whether those responses had a genuinely positive effect in ending the violations: Case I. Issuing a law criminalizing torture. Case II. Abolishing military Field Courts. I. Case 1. Anti-Torture Law: Nullum crimen sine lege On 30 March 2022, Syrian President Bashar al-Assad issued Law No. 16 of 2022 to criminalize torture ‘in accordance with…the provisions of the Convention against Torture, which the Syrian Arab Republic had previously ratified’,[5] according to a tweet by the Syrian presidency.[6] Like most Syrians, including victims and survivors of torture, various international human rights organizations responded to this news with a grain of salt. Human Rights Watch, for example, described the decree as an April Fools’ joke, ‘given how pervasive the use of torture is by Syrian state authorities’.[7] They noted that: While it is hard to attribute intent to a government defined by arbitrariness, the passage of the law could be a response to ongoing efforts to prosecute the use of torture by Syria officials in the conflict, including an effort by some states to hold the Syrian government accountable for torture under the United Nations Convention Against Torture.[8] Amnesty International described the decree as a legislative step towards complying with internationally recognized anti-torture conventions, but noted that ‘the new law effectively whitewashes decades of state-sanctioned human rights violations’.[9] On 18 September 2020, the Netherlands announced that it had asked the Syrian government to enter negotiations to resolve a dispute concerning Syria’s violations of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), to which the Netherlands and Syria are parties.[10] The Netherlands confirmed that in case no agreement was reached, it would submit the case to the International Court of Justice (ICJ). On 4 March 2021, Canada also announced that it had requested formal negotiations under UNCAT to hold Syria accountable, citing the Netherlands’ announcement.[11] In June 2022, I contacted the governments of Canada and the Netherlands to inquire about the status of their negotiations with the Syrian government.[12] They replied that to negotiate in good faith implies that the process, strategy, and correspondence with Syria are confidential and that they ‘cannot comment on the exact dates or content of any submissions or letters to the Syrian Arab Republic, the International Court of Justice, or any other party regarding this dispute for reasons of confidentiality’. Global Affairs Canada added that they can however confirm that the dispute resolution process is ongoing.[13] They said that once they reach a stage where more information can be provided, they will do so, keenly aware of the people—the Syrian victims—for whom this step was taken.[14] Whilst the dispute resolution process was ongoing, and a complex and lengthy process, they stressed that it was the next step in combating impunity and obtaining justice for the most serious crimes under international law committed against Syrian victims. On 8 June 2023, the ICJ published the document of the Dutch-Canadian joint application instituting proceedings concerning UNCAT violations.[15] The application document detailed the process of negotiations with the Syrian government, including the correspondence and meetings dates and requests made by the Netherlands and Canada. Examining these details shows that the negotiations and the issuing of Law No. 16 of 2022 to criminalize torture are significantly correlated. On 9 August 2021, the Netherlands and Canada presented a Statement of Facts and a Statement of Law to Syria in writing. The statements included a description of the relief sought by the Netherlands and Canada, in particular: ‘cessation of violations of the Convention against Torture, assurances and guarantees of non-repetition, and full reparation for victims’. The UNCAT articles which the Netherlands and Canada accused Syria of violating include Article 2: Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.[16] Since then, sixty-six Notes Verbales have been exchanged between the Netherlands, Canada, and Syria, including discussions about the dispute and attempts to negotiate a resolution.[17] On 30 September 2021, Syria informed the Netherlands and Canada that it rejected ‘in toto’ the characterisation of the dispute as an admission of international responsibility for the recent breaches of its obligations under UNCAT. As a response to the Netherlands’ and Canada’s negotiations with Syria regarding its violations of UNCAT Article 2,[18] and as a pre-emptive measure to counter the accusations made by the Netherlands and Canda in foreseeable legal proceedings at the ICJ, the Syrian president Bashar al-Assad issued Law No. 16/2022 on 30 March 2022 to criminalize torture ‘in accordance with the constitutional obligations of the state that prohibits torture, and with the provisions of the Convention against Torture, which was previously ratified by the Syrian Arab Republic’. On 25 April 2022 and 5-6 October 2022, representatives from the Netherlands and Canada met in-person with representatives from Syria in Abu Dhabi, United Arab Emirates, as part of their efforts to negotiate a resolution of the dispute. After more than two years of exchanges of Notes Verbales, without any progress towards settling the dispute, the Netherlands and Canada concluded that negotiations had become deadlocked or futile.[19] On 17 October 2022, they informed Syria of their conclusion by Note Verbale. On 8 June 2023, the Netherlands and Canada (the Applicants) started legal proceedings at the ICJ to hold Syria accountable for torture under the UNCAT. They filed a joint application instituting proceedings concerning violations of the UNCAT. Together with the Application, the Applicants filed a Request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court and Articles 73, 74, and 75 of the Rules of Court. However, on 15 July 2023, the ICJ announced that it decided to postpone the proceedings that were originally due to commence on Wednesday 19 July 2023, to 10 and 11 October 2023, following Syria’s request for a postponement. Law No. 16/2022: Nullum crimen sine lege Based on the UNCAT torture definition,[20] Law No. 16/2022, defines torture in Art. No. 1 as follows: For the application of the provisions of this law, torture means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for obtaining information or a confession from him or another person, or punishing him for an act he has committed, or intimidating or coercing him to perform an act. When such pain or suffering is inflicted on a person for any reason based on discrimination of any kind, or when it is instigated or consented to, expressly or implicitly, by an employee or any person acting in his official capacity. It also includes actions committed by a person or group to achieve personal, material, or political goals or with the intention of revenge or retaliation. [21] The Latin phrase ‘Nullum crimen sine lege’ or its English equivalent ‘no crime without law’ reflects an essential principle of criminal law: that only the law can define a crime and prescribe a penalty.[22] This means that no person may be convicted of a crime for an act that was not forbidden by law at the time it was committed. Whilst the Syrian constitution and the Public Penal Code prohibit torture in loose and ambiguous terms, the act of torture itself was never defined under Syrian law. Law No. 16/2022 was the first-time torture was defined, creating a new criterion for punishment. Based on the new definition, the Syrian government can only punish torture defined in this law after the law was created. Another attention-grabbing element in the new definition is the term ‘omission’, which is not included in the UNCAT definition. Previously, Syrian law prohibited and punished those who committed torture, but not those who allowed it. The new law criminalises those who abstained from action. This means that every official, especially high-ranking officials including the head of the state, cannot be punished for omissions before this new law was issued. Law No. 16/2022 also included a provision that is not mentioned in the UNCAT definition, namely: ‘It also includes actions committed by a person or group to achieve personal, material, or political goals or with the intention of revenge or retaliation’. [23] This addition apparently targets torture committed by individuals, including non-state actors, and the opposition. Thus, under Syrian national law, the Syrian judiciary is ‘legally’ permitted to not punish acts of torture committed by the state before Law No. 16/2022 was issued. However, under international law, as a state party to UNCAT, and under the command responsibility and failure to act, Syria should be obliged and be able to punish acts of torture from all perpetrators, including high-ranking officials. II. Case 2. Abolishing Military Field Courts: Between Scylla and Charybdis On 3 September 2023—only 30 days before the first ICJ hearing and following Syria's request to postpone it, in an apparent pre-emptive step to counter the accusations made by Applicants in the legal proceedings at the ICJ, al-Assad issued Decree No. 32/2023, ending the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of Military Field Courts. The Decree effectively abolished the Military Field Courts and stipulated in its Art. 2 that ‘all cases referred to the Military Field Courts shall be referred in their present condition to the military judiciary for prosecution’. The Syrian president issued Decree No. 32/2023 ending the effect of Legislative Decree No. 109/1968 and its amendments on the establishment of Military Field Courts, after decades of countless calls from Syrians, the United Nations, human rights organisations, and others to reform or abolish these courts. This decree seemed surprising to many Syrians. For 55 years, Syrians (even children and other nationals such as Palestinians[24] and Lebanese[25] and lately dual US-Syrian citizens)[26] have suffered under these Military Field Courts. Since its creation, those courts have been used to imprison and execute tens of thousands of Syrians, including military and political opponents, journalists, lawyers, human and ethnic rights activists, and children. The rules and proceedings of those courts were so summary and arbitrary that they cannot be considered to constitute a fair trial, let alone a judicial process.[27] Military Field Courts: Background Military Field Courts were created after the 23 February 1966 military coup d’état in Syria. The coup was planned and led by Chief of Staff of the Armed Forces Salah Jadid, the commander of the Syrian Air Force, Hafez al-Assad, and army Lieutenant Colonel Mustafa Tlass, among others. Since March 1949, Syria went through around 16 military coups and coups attempts, which in some cases, handed over the government to civilians. The 1966 coup was the final nail in the coffin of democratic experimentation, parliamentary and civilian governing in post-colonial Syria and made Syria a one-party state with military authoritarian domination over the daily life of Syrians. The 1966 coup overthrew the Syrian government, took over the Baath Party leadership and announced the Interim Regional Command of the Arab Socialist Ba'ath Party, which issued Statement 1 with 2 articles: Suspending the Constitution Appointing Hafez al-Assad as defence minister The coup leadership in the Interim Regional Command appointed the head of the state and the prime minister, and within one year issued decrees and decisions that tightened the military coup leaders’ grip over the social, economic, legal, military, and intelligence aspects of life in Syria, including: Decree no. 130/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, creating the National Union of Syrian Students, which ensured the coup leaders’ control and monitoring of universities and higher education. After 2011, Bashar al-Assad used it as an intelligence branch inside universities and university residences to arrest, torture, and kill university students, and hand them over to the intelligence services,[28] Decree no. 117/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, establishing the system of the Red Crescent Organization, a leading organisation directing and implementing humanitarian aid, which is subject to the supervision and intervention of intelligence services,[29] and practises discrimination and other violations of the principles of humanitarian work,[30] Decree no. 96/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’ allowing the seizure of the official Syrian Civil Aviation Company by the Ministry of Defence,[31] and Decree no. 109/1968,[32] ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, establishing Military Field Courts. Military Field Courts and Fair Trial In Field Courts, sessions would last only minutes, with no witnesses or lawyer present. Some defendants were only informed of their verdict years after their trial. Others were sentenced without ever being present at a hearing.[33] Detainees that were eventually referred to parts of the court system on criminal charges were invariably subjected to multiple violations of the right to a fair trial. Proceedings of the Military Field Courts were of particular concern, owing to the general lack of evidence utilised and the imposition of death sentences.[34] Military Field Courts are exceptional courts that issue sentences that are not subject to any form of appeal. These courts can pass any sentence, including the death penalty. Their rules and proceedings are summary and arbitrary that they cannot be considered a legitimate judicial. They are not required to operate within existing legislation and, once a sentence is issued, there is no possibility of appeal. However, the sentences they issue are subject to the approval of the head of state and the Minister of Defence.[35] These courts constituted a powerful authoritarian tool: to suppress any counter-coup attempt and to persecute and prosecute rivals to power without the intervention of the fair judiciary and lawyers. These courts enabled absolute power to the 1966 coup leaders, including the new minister of defence Hafez al-Assad, to eliminate political opponents. In 2005, the German magazine Der Spiegel published an interview with Mustafa Tlass after he retired as a defence minister, having served for 32 years: Tlass no longer knows exactly how many death sentences he has signed personally, and he speaks quietly as he explains why these horrific acts were unavoidable, even the many who died by hanging. At times in the 1980s, he says, 150 death sentences a week were carried out by hanging in Damascus alone. ‘We used weapons to assume power, and we wanted to hold onto it. Anyone who wants power will have to take it from us with weapons’, says the general, smiling.[36] It is unclear if the executions Tlass signed were only issued by the Military Field Courts, or included those issued by the military courts. However, it indicates the huge number of executions issued by both military courts and Military Field Courts against opponents of the 1966 coup leaders and the Syrian regime. Syrian officials and lawyers affiliated with the Syrian bar described this decree as a positive step towards juridical reform and to end the violations of a fair trial. However, according to Decree No. 32/2023: all cases referred to the Military Field Courts will be transferred to the military justice to make the pursuit according to the rules of punishment law and military trials issued by legislative decree No. 61 for 1950. [37] The news of abolishing Military Field Courts had an emotional impact on Syrians with painful collective and personal memories of these notorious courts. It invoked the decades-long struggle and traumas of several generations in these courts. Generations of opponents, human rights activists, and lawyers have called for its abolition, some of whom spent their childhood and upbringing amid these demands and the trauma caused by these courts. The Syrian government’s comment on abolishing Military Field Courts The Director of the Military Justice Department in Syria, Major General Yazan Al-Homsi, said that ‘Legislative Decree No. 32 forms part of the reform process adopted by President Al-Assad. It is a process that is not newly born but began in the pre-war years and included various fields in administration and institutions, in the judiciary, in the military, and others’.[38] Syrian lawyer and member of the Syrian government Bar Association Ghassan Abu Alwan considered this new presidential decree ending the Military Field Courts a ‘positive step’: The new presidential legislative decree to end the work of Field Courts and transfer them to the military judiciary is a positive and important step’. It took the Assad regime 55 years of slaughtering Syrians and political opponents by illegal executions and hundreds and perhaps, thousands of demands and calls to finally end these courts. But the grim, yet unsurprising news is that Assad handed over the commission of violations and crimes against fair trials and other international law obligations from one apparatus to another. Therefore, the same crimes and violations will continue under a different name. Perhaps judges and employees of military courts will continue their work under a new desk nameplate and job title. The Military Penal Code and Fair Trial The Syrian criminal justice system, which includes civilian courts, the Counter Terrorism Court, and military and Field Courts, is systemically failing to uphold international human rights standards at every step of the judicial process.[39] Law No. 61/1950 (the Military Penal Code), [40] regarding the military courts to which Decree 32 [41] referred the Military Field Courts’ ongoing cases, allows for violations of several international treaties adopted by Syria and have articles which are not substantially different from the regulations of the abolished Field Courts. Military judiciary jurisdiction over civilians The Military Penal Code allows targeting civilians on charges based on freedom of expression, assembly, and association, and peaceful criticism, whether it is criticism of the army, the government, or economic conditions. Article 47 of the military penal code specifies the military courts’ jurisdiction and states that: These courts may be granted, by a decree taken by the Council of Ministers based on the proposal of the Commander-in-Chief of the Army and Armed Forces and the Minister of Justice, the right to consider all or some crimes against the internal security of the state.[42] Definition of crimes against the internal security of the state The Military Penal Code does not define ‘crimes against the internal security of the state’; these crimes are stipulated in the General Penal Code. According to the ‘Arab Encyclopaedia Authority’, which was established by Legislative Decree No. 3 of 1970 [43] and is affiliated with the Syrian Presidency: The Syrian legislator stipulates crimes against state security in Articles (291-310) of the Penal Code, which are: felonies against the constitution—usurpation of a political or civil authority, or military leadership—sedition—terrorism—crimes that undermine national unity or disturb peace among the elements of the nation—undermining the state’s financial position. [44] Articles (291-310) of the General Penal Code allow criminalising freedom of speech, peaceful political expression, and the freedoms of assembly and association. For example, Article 307 of the General Penal Code states that for: Every action, every writing, and every speech that intends or results in inciting sectarian or racist strife or inciting conflict between sects and various elements of the nation... The court may order the publication of the judgement. [45] 2 means in practice that the rule is not to publish. Article 309 states that: Whoever broadcasts, by one of the means mentioned in the second and third paragraphs of Article 208, fabricated facts, or false allegations to cause a decline in national banknotes or to undermine confidence in the strength of the state’s currency, its bonds, and all documents related to public financial trust, he shall be punished with imprisonment from six months to three years and a fine from two hundred and fifty pounds to one thousand pounds. [46] Article 123 of the Military Penal Code punishes: Every military or civilian person who insults the flag or the army, harms its dignity, reputation, or morale, or does anything that might weaken in the army the spirit of the military system, obedience to superiors, or the respect due to them, or criticises the actions of the General Command and those responsible for the actions of the army, in a manner degrade their dignity. [47] The Syrian Military Penal Code contains provisions that blatantly breach fair trials by allowing secret trials, banning publishing procedures, immunity for perpetrators, and targeting civilians including journalists: Decisions issued by the investigating judge are not subject to any method of review.[48] It allows execution sentences for military and civilians under many charges, including ‘anyone who incites the military to join the enemy or the rebels’.[49] Sentences in absentia allow sentenced individuals to appeal the decision within only five days.[50] Sentences in absentia allow the confiscating of all ‘existing and future movable and immovable shared and non-shared funds’. It allows prosecuting and punishing journalists.[51] It gives the military judiciary the sole right to decide on conflicts of jurisdiction with civilian courts.[52] Its jurisdiction includes crimes that military courts were given the right to decide under special regulations and laws.[53] It provides protections to the perpetrators and immunity from prosecution. The prosecution order is issued only by the Commander-in-Chief of the Army and the Armed Forces, the Syrian president.[54] Law No. 16/2022, defining and punishing torture, and Decree No. 32/2023, abolishing military Field Courts, will be used by the Syrian government at the ICJ in order to counter accusations made by the Applicants in the Court. Destroying evidence of crimes and information about disappeared persons In its Article 2, Decree No. 32 states that ‘all cases referred to the Military Field Courts shall be referred in their present condition to the military judiciary for prosecution’. [55] The decree does not address the fate of the previous/completed/past cases records. Those records should have strong evidence of systematic grave violations of fair trial which may amount to crimes against humanity. The records likely also include vital information about the victims of enforced disappearance. According to the Syrian Military Penal Code, records of trials, decisions, and sentences should be sent to Military Public Prosecution which is tasked with handling incoming and outgoing mail between military judicial departments in the governorates. For example, execution reports should be registered and kept at the Public Prosecution.[56] Abolishing Field Courts risks getting rid of their records including death sentences. Therefore, eliminating these records means destroying the information necessary to know the fate of those who were sentenced and executed, including those who were forcibly disappeared. Evidence of crimes includes killing forcibly disappeared people by execution sentences issued by these courts under unfair trials, whose records show the absence of lawyers, and disregard claims of forced confessions under torture and various other violations under the UN Charter. III. Criminalizing Torture and Abolishing Military Field Courts: International Optics for the Syrian Government The Syrian government’s responses to international pressure and demands to end its violations of international law have been consistent for decades: if there is no benefit, enforcement mechanism, or imminent threat to the regime’s hold on power, the Syrian government ignores the pressure and denies any wrongdoing. In some cases, it responds with misleading and meaningless actions, mostly by issuing laws and decrees that do not contribute to ending its violations in practice, as established. Aside from utilising these new laws in its propaganda and destroying highly important evidence of crimes in defiance of the Applicants’ request to not destroy or render inaccessible any evidence related to the Application (including information about mass graves’ locations and death certificates stating the true causes of death), the same responses and strategies are likely to be used at the ICJ in the upcoming proceedings by the Applicants under the UNCAT. For example, in its response to the concerns of the UN Committee against Torture (CAT) over the State of Emergency and widespread use of torture in 2011, the Syrian government denied any routine use of torture and said: With the enactment of Decree No. 161 of 21 April 2011, ending the state of emergency, and Legislative Decree No. 55 of 21 April 2011, there can be no further talk about arbitrary or unlawful detention in any institution.[57] Then, in response to the CAT’s request to reform or abolish the Supreme State Security Court, the Syrian government said: The Supreme State Security Court was abolished by Legislative Decree No. 53 of 21 April 2011. The decree provided for all cases pending before the Court or with the public prosecutor’s office at the Court, to be transferred in their current state to the appropriate competent courts in accordance with the rules and procedures laid down in the Syrian Code of Criminal Procedures.[58] Additionally, on the torture complaints mechanism, Syria provided a table of the number of cases pending before the judiciary relating to allegations of torture, that are almost impossible to verify or deny. On appropriate education for persons involved in the custody, interrogation, or treatment of detainees, Syria said: The course ‘Human Rights and Public Freedoms’ is taught within the Judicial Institute. Many courses have been conducted for judges in the field of combating money laundering and the financing of terrorism, in cooperation with the World Bank and the Anti-Money Laundering and Combating the Financing of Terrorism Authority in the Syrian Arab Republic. Judges also participate in all courses held inside the country and in many courses held outside it within the framework of Human rights and public freedoms. Currently, there are many workshops implemented by the Ministry of the Interior in cooperation with the International Organization for Migration and the Austrian government within the framework of combating trafficking in persons. The ‘Human Rights’ course is taught in law colleges for undergraduate students, and it is also taught to postgraduate students in English and French. This course is also taught in the College of Political Science and many other colleges and institutes.[59] On ensuring that victims of torture obtain redress and adequate compensation: Article 164 of the Civil Code stipulates that: ‘Any mistake that causes harm to others obligates the person who committed it to compensate’, and Article 165 stipulates that: ‘A person shall be responsible for his unlawful acts whenever they are committed by him while he is distinct’. The state is responsible for free treatment for all citizens, including those who have been subjected to torture, whether health or psychological treatment. In 2012, the Syrian government responded by Note Verbale to the CAT’s request to submit a special report on measures taken to ensure that all its obligations under the UNCAT were fully implemented, that Syria would inform the CAT about the measures in its next periodic report (due in 2014) and that Syria considered that Article 19 of the Convention did not provide for the possibility for the CAT to request a special report. It also said that Syria: informed the Secretary-General, the Security Council and the Committee, about the human and material losses that have occurred in the Syrian Arab Republic since the beginning of the events in the State party until 15 March 2012, caused by the ‘actions of armed terrorist groups.[60] IV. How the Syrian government will use the new laws in its legal argument at the ICJ Legal grounds for Canada and the Netherlands’ claims at the ICJ and the new Syrian laws Based on the Syrian government's long-standing strategies of manoeuvre and manipulation, Syria will likely use these two laws as a ‘legal’ weapon at the ICJ to argue that it is fulfilling its obligations under the UNCAT to refute the accusations of the Applicants. Laws criminalizing torture and abolishing the Field Courts would be used to refute seven (a, b, c, d, i, j, k) of the twelve accusations brought by the Applicants in their complaint before the ICJ. As for the remaining five accusations (e, f, g, h, l), Syria will deny them, claiming its financial inability and state of war prevented it from submitting periodic reviews and reports. Syria will deny accusations of state torture and make the same allegations that the Syrian president deployed in an interview with the Swedish newspaper Expressen. The journalist’s question: As you know there are many serious allegations against your government, about human rights abuses committed by your side. How much do you know about torture in your prisons here?[61] The Syrian president’s answer: When you talk about torture we have to differentiate between policy of torture and individual incidents that happen by any individual…With Syria, we never had under any circumstances such a policy. If you have any breach of law, torture, revenge, whatever, it could be an individual incident that the one who committed should be held accountable for.[62] On 7 March 2020, Justice Minister Najm al-Ahmad acknowledged the existence of torture, but echoed Assad’s narrative that torture constitutes an exceptional phenomenon: I do not want to say that the prisons in Syria are five-star prisons in which there is no torture, but all I want to say is that torture constitutes a purely exceptional phenomenon.[63] The Minister, referring to Caesar’s photos,[64] also stated that the government does not allow evidence of torture or killing under torture to exist: Who is that person that we authorize—assuming that a person has been subjected to torture—to photograph this person, whether alive or dead.[65] Accusation (f) would be refuted by the Syrian government by alleging that it has many courses to ensure appropriate education of human rights to its employees. Accusation (h) would be refuted by the Syrian government by providing a table of the number of cases pending before the judiciary in cases relating to allegations of torture, that are almost impossible to verify or deny. Accusation (l) would be refuted by the Syrian government by referring to ‘the actions of armed terrorist groups’, ‘the war’, ‘the economic impact of the war’, and ‘the sanctions’ as reasons that prevented it from fulfilling its obligations to report to the Committee against Torture. V. Conclusion ‘Drowning them in the details’ and pretexts of ‘the actions of armed terrorist groups’, ‘the war’, ‘the economic impact of the war’, and ‘the sanctions’ are often used by the Syrian government to address the international pressures and to justify its various failures and egregious actions, that range from the inability to fulfil specific obligations to committing war crimes. Issuing or abolishing some laws in Syria in response to international pressures and action does not reflect an effective and positive change in the Syrian legal system in either theory or practice. Even if the Syrian government issued new laws or abolished others, it still has its arsenal of laws and courts. This includes the Military Penal Code, the Couter-Terrorism Court and the legalised tools and regulations that allow the authoritarian regime in Syria to continue to target the Syrian people by torturing, killing, and violating the basic principles of fair trials. The government also has its laws to protect perpetrators of torture and other grave crimes, including in its Military Penal Code. It should be clear that the real purpose of issuing such laws has nothing to do with ending human rights violations. The purpose of issuing these recent two laws is to counter accusations at the surface level before the ICJ. Mansour al-Omari Mansour al-Omari is a Syrian human rights defender and legal researcher. He holds an LLM in Transitional Justice and Conflict. Al-Omari works with international and Syrian human rights organisations to hold the perpetrators of international crimes in Syria accountable. In 2012, al-Omari was detained and tortured by the Syrian government for 356 days for documenting its atrocities while working with the Syrian Center for Media and Freedom of Expression as the supervisor of the Detainees Office. [1] ‘UN welcomes move enabling Arab League monitors to visit Syria’ UN News (20 December 2011) accessed 16 September 2023. [2] ‘المعلم . على العرب ان يتعلموا السباحة ب19-12-2011.flv’ HomeTears (21 April 2012) accessed 16 September 2023. [3] UN News (n 1) [4] Anwar Malek, Revolution of a nation; Secrets of the Arab League mission to Syria (Obeikan Publishing 2017). [5] Law No.16, Law No 16, 30 March 2022 (Syria) [6] Syrian Presidency, ‘الرئيس الأسد يصدر القانون رقم /16/ للعام 2022 لتجريم التعذيب، بما يتوافق مع الالتزامات الدستورية للدولة التي تحرم التعذيب، ومع’ accessed 1 October 2023. [7] ‘Torture in Syrian Prisons is Not a Joke’ (Human Rights Watch, 1 April 2022) accessed 16 September 2023. [8] ibid. [9] ‘Syria: New anti-torture law ‘whitewashes’ decades of human rights violations’ (Amnesty International, 31 March 2022) accessed 16 September 2023. [10] ‘The Netherlands holds Syria responsible for gross human rights violations’ (Government of the Netherlands) accessed 16 September 2023. [11] ‘Minister of Foreign Affairs takes action on Syria’s human rights violations’ (Government of Canada) accessed 16 September 2023. [12] Emails from author to Ministries of Foreign Affairs of Canada and the Netherlands (27 June 2022). [13] Email from Global Affairs Canada, Government of Canada to author (14 July 2022). [14] Email from the Dutch Ministry of Foreign Affairs to author (5 July 2022). [15] Canada and the Kingdom of the Netherlands v The Syrian Arab Republic, International Court of Justice, Joint application instituting proceedings concerning a dispute under the convention against torture and other cruel, inhuman or degrading treatment or punishment. [16] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations Treaty Series, Vol. 1465, P. 85 (entered into force 26 June 1987) [Convention against Torture]. [17] Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic) (Pending) (8 June 2023) accessed 16 September 2023. [18] Convention against Torture, Article 2, states ‘1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture’. [19] Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic) (n 4). [20] Convention against Torture, Article 1 (1), states: For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. [21] Article 1, Law No. 16 of 2022 criminalizing torture (n.d) (Syria). [22] Guide on Article 7 of the European Convention on Human Rights, European Court of Human Rights (31 August 2022) accessed 16 September 2023. [23] Article 1, Law No. 16 of 2022 criminalizing torture (n.d) (Syria). [24] ‘Syria: Extrajudicial execution of Bassel Khartabil a grim reminder of Syrian prison horrors’ (Amnesty International) accessed 29 September 2023. [25] ‘وثائق رسمية تؤكد إعدام دمشق أربعة معتقلين لبنانيين لم تعترف باحتجازهم’ (الشرق الأوسط | اطلع على أخبار اليوم عبر صحيفة العرب الأولى) accessed 29 September 2023. [26] ‘U.S. Citizen, Believed Executed in Syrian Prison, Heightens Fears for Others’ (The Wall Street Journal) accessed 29 September 2023. [27] ‘Syria: Human slaughterhouse: Mass hangings and extermination at Saydnaya Prison, Syria’ (Amnesty International 7 February 2017) accessed 16 September 2023. [28] ‘Victims of Assad's notorious Students' Union speak out – but the UN is not listening’ (Home | Amnesty International UK) accessed 29 September 2023. [29] ‘Inside the Syrian Arab Red Crescent’ (Syria Justice & Accountability Centre, 8 August 2019) accessed 29 September 2023. [30] ‘The Syrian Arab Red Crescent…The Reality of the Organization and its Commitment towards the Seven Principles’ (Jusoor For Studies) accessed 29 September 2023. [31] ‘مرسوم ربط شركة الطيران العربية السورية بوزارة الدفاع عام 1966 - التاريخ السوري المعاصر’ (التاريخ السوري المعاصر) accessed 29 September 2023. [32] Constituted by Legislative Decree No. 109 of 17 August 1968, published in the Official Gazette of 1968 No. 38, 12542. [33] Report of the Independent International Commission of Inquiry on the Syrian Arab Republic (11 March 2021, A/HRC/46/55). [34] ibid. [35] (n 7). [36] Translated by Christopher Sultan at ‘A 101 Course in Mideast Dictatorships’ The New York Times (New York, 21 February 2005) accessed 3 October 2023. [37] Article 2, Decree No. 32 for 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (Syria). [38] Muhammad Manar Hamijo, ‘Major General Al Homsi to Al Watan: It is part of the reform process that began years ago, and the war may have delayed many steps, but it does not cancel them... President Al–Assad ends the work of the Field Courts and refers their cases to the military judiciary’ Al Watan Newspaper (Damascus, 4 September 2023) accessed 5 September 2023. [39] ‘Out of Sight, Out of Mind: Deaths in Detention in the Syrian Arab Republic’ UN Human Rights Council (3 February 2016, A/HRC/31/CRP.1). [40] Military Penal Code (n.d) (Syria). [41] Decree No. 32 of 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (n.d) (Syria) [42] Article 47, Military Penal Code (n.d) (Syria). [43] Legislative Decree No. 3 of 1970 (n.d) (Syria). [44] الجرائم الواقعة على أمن الدولة (الموسوعة العربية) accessed 29 September 2023. [45] Article 307, General Penal Code, (n.d) (Syria). [46] Article 309, General Penal Code, (n.d) (Syria). [47] Article 123, Military Penal Code, (n.d) (Syria). [48] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 26. [49] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 160. [50] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 15 (1). [51] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 47 (6). [52] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 51. [53] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 47 (4). [54]Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 53 and Legislative Decree No. 64 of 2008 on the trial of police officers, customs officers, and political security personnel before the military judiciary (المرسوم التشريعي 64 لعام 2008 المتضمن محاكمة ضباط الشرطة وعناصرها وعناصر الجمارك والأمن السياسي أمام القضاء العسكري). [55] Article 2, Decree No. 32 of 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (n.d) (Syria). [56]Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 92. [57] United Nations, Committee against Torture, Consideration of reports submitted by States parties under article 19 of the Convention Comments and follow–up responses of the Syrian Arab Republic to the concluding observations of the Committee against Torture report of Committee against Torture (6 September 2011, CAT/C/SYR/CO/1/Add.1). [58] ibid. [59] ibid. [60] United Nations, Committee against Torture, Consideration by the Committee against Torture of the implementation of the Convention in the Syrian Arab Republic in the absence of a special report requested pursuant to article 19, paragraph 1, in fine; Concluding observations of the Committee against Torture (29 June 2012, CAT/C/SYR/CO/1/Add.2). [61] Kassem Hamadé, ‘He denies torture – that has been caught on camera’ Expressen (Damascus, 17 April 2015) accessed 16 September 2023. [62] Ibid. [63] Mansour Omari, ‘al Fatih al–Islami symposium: acknowledging ‘Caesar’ and torture’ Enab Baladi Newspaper (10 March 2020) accessed 16 September 2023. [64] ‘If the Dead Could Speak; Mass Deaths and Torture in Syria’s Detention Facilities’ Human Rights Watch (16 December 2015) accessed 16 September 2023. [65] Omari (n 63)

In our society and social theory, there is a fine line between a ‘right’ and a ‘wrong’ decision. While society uses moral justifications to determine a right or wrong choice, social theory relies on adaptive preference formation, the ‘unconscious altering of our preferences in light of the options we have available’.[1] Adaptive preference formation argues that individuals make decisions based on the options made available to them, thus if they have limited options, they may be less capable of making an informed or ‘correct’ decision. This debate often takes place within the realm of education, where adaptive preference adherents argue that an individual without a formal education simply does not have the option of education available to them. Moreover, those who lack the desire to be formally educated are categorised as having low aspirations, a low sense of achievement, or a limited set of options that do not highlight the benefits of education.[2] This perspective assumes that education is the ‘correct’ choice, and if that choice is not made, it is because education is not available, or the individual has an inherent deficiency. In both scenarios, there is a moral argument being made—one that champions education as ‘right’ while simultaneously looking down upon the individual who is either wanting, but incapable of accessing education, or apathetic and incapable of acknowledging the benefits of education. When the focus is placed so heavily on an individual’s capacity to make the ‘correct’ choice, we lose sight of the true problems. Government entities and international organisations, for example, often intervene in communities to change the desires of individuals (ie, enticing them to desire formal education) without addressing the root causes of systemic injustice (ie, formal education is exclusive). When these interventions are held to change individuals’ desires while the root of the problem is never addressed, true deprivation becomes apparent. Increasing a population’s desire for education, for example, does not automatically make education more affordable or equitable. Instead, it creates a plethora of people who desire education but cannot be absorbed within a fragmented and exclusive education system.[3] The focus should, therefore, be shifted from an imposed idea of ‘right’ and ‘wrong’ via adaptive preference formation to the endogenous desires of a population through the cultivation of public emotion. The cultivation of public emotion is a movement in which a person or persons of influence shift the public consciousness by tapping into people’s endogenous desires and enabling them to identify their own needs. It mobilises a community around their own beliefs and can be used to combat the impositions by adaptive preference adherents. But how can we be sure that the cultivation of public emotions does not simply change the consciousness of the people without changing the situation that oppresses them?[4] In this paper, I examine how the cultivation of public emotions can challenge the impositions of adaptive preference adherents who claim to know what is best for a community. I argue that adaptive preference is best challenged when the cultivation of public emotions is used to express a community’s endogenous desires, thus being conscious and supportive of the community’s needs. As such, a sense of agency is bestowed on a community which enables them to identify their own desires, advocate for themselves, and acknowledge the power structures that impede access to those desires. Moreover, I argue that by addressing the inadequacies of a power structure, rather than the ‘deficiencies’ of the people it governs, the cultivation of public emotions can mitigate the root cause of adaptive preference formation. I begin this paper by examining adaptive preference formation, the assumptions embedded in the ‘correct’ choice and the impact it can have on target populations. I then assess the cultivation of public emotions as a necessary tool for change and how this change should stem from the desires of a community, not via foreign interventions. Finally, I assess the Civil Rights struggle for voting rights and subsequent voting campaigns in the United States today to analyse how endogenous and agentic desires have a greater capacity to overcome adaptive preference. The ‘suboptimal’ choice In its most rudimentary state, adaptive preference formation (APF) is the preference a person adopts based on their current circumstance. A student, for example, may prefer to study abroad if they receive funding, whereas if funding is not provided, the same student may prefer to forego studying abroad. Through circumstantial preferences, people make choices on how best to live their lives and determine what values they want to shape their identity. It can be assumed that, to some extent, all people are subjected to APF because all people acquire preferences and make choices within a specific context. Within economic, social, and moral theory, however, APF is used to analyse the so-called deprived choices of marginalised communities. In this section, I examine the use of APF as a judgement and value-based critique of the ‘suboptimal’ choices made by marginalised groups. I argue that by establishing what is right and wrong for a community to desire, we fail to acknowledge a community’s true needs and values. Within economic theory, APF is seen as a driver of irrational decisions. Theorists argue that unbeknownst to them, marginalised people do not experience free choice; instead, they adapt ‘to the limited options set by their circumstances’.[5] The individual is thus blind to the institutions that limit their choice and is incapable of claiming agency when making decisions. Similar sentiments are expressed by Amartya Sen, who asserts that, Deprived people tend to come to terms with their deprivation because of the sheer necessity of survival, and they may, as a result, lack the courage to demand any radical change, and may even adjust their desires and expectations to what they unambitiously see as feasible.[6] Likewise, Martha Nussbaum argues that because of their environment, marginalised groups adopt ‘deformed’ preferences and begin to subject themselves to welfarism, thus embracing their disadvantaged position and making it ‘impossible to conduct a radical critique of unjust systems’.[7] Within both Sen and Nussbaum’s critique of APF, the focus (and blame) is placed on the ‘deprived’ individual who passively and ignorantly succumbs to their disadvantaged state. Moreover, these scholars argue that marginalised people make the ‘wrong’ decisions which hinder their capacity to demand true freedom. One of the freedoms that Sen, Nussbaum, and numerous policymakers acknowledge as being underutilised by marginalised communities is participation in formal education. During the early 2000s in the UK, for example, countless initiatives were implemented to increase participation in education among people from ‘non-traditional backgrounds’. Initiatives were premised on the belief that the UK must become ‘economically competitive in the knowledge economy’ by increasing its human (and academic) capital.[8] After securing nearly 100% of middle-class recruits, the UK government set out to enrol school-aged children from Afro-Caribbean, Muslim, and working-class communities only to find that these groups were not interested in further education.[9] This lack of desire for education was categorised as these communities having ‘low aspirations’ and ‘low achievement standards’ as a result of APF. ‘The requirement,’ as David Bridges argues, ‘[was] then to intervene in the interest of changing these…aspirations and…to challenge choices…that [would] not take them on the pathway through higher education’.[10] A moral and social hierarchy was thus established which presumed that education advocates were rational actors who knew what was best for the marginalised communities. These beliefs and interventions continue today as academics and policymakers undermine decisions that lead people away from higher education. Mainstream discourses maintain that preferences that defy the status quo are ‘restricted by ignorance and/or a failure of rationality’ which then impedes people from living in a ‘truly human way’.[11][12] But if not as a human, in what way have people in marginalised communities been living, and who is given the authority to discern how a human should live correctly? Critiques of Sen, Nussbaum, and Bridges highlight the fundamental arrogance of APF within economic, social, and moral theory—a belief that an elite social group can determine for all others the ‘correct’ way to live and the ‘correct’ things to desire. This belief has many consequences, but the two of significance for this paper are the impact of institutions on APF and the question of agency amongst marginalised groups. As argued by Elaine Unterhalter, ‘the rhetoric of aspiration ultimately serves as a diversion from the reality of increasing social exclusion and inequality’.[13] This is evidenced within the UK education system, where education is lauded as a necessity for local communities and economic growth, yet education budgets have been cut by more than £3.2 billion since 2010.[14] Though the UK government continues to raise aspirations for education, they simultaneously make education more inaccessible and blame the working class for their low aspirations and low standards of living.[15] By refusing to acknowledge the role that institutions play in making education inaccessible, policymakers force marginalised populations into worse-off positions when trying to raise unrealistic aspirations for education. Moreover, because the desire for education is imposed—as opposed to being endogenously identified as a need of the community—there is minimal to no effort made by officials to match the increase in desire with an equal number of educational opportunities. Instead, there is an influx of desire that cannot be absorbed by the fractured education system as resources are allocated to changing people’s desires and not the institutions that leave them deprived. Instead of championing the capacity for all people to make diverse and informed decisions, policymakers question people’s agency and rationality, which then invites ‘coercive forms of intervention’.[16][17] To combat forms of coercion, it is imperative to acknowledge that marginalised groups have agency and adhere to rational thinking when choosing what they should and should not value. Marginalised communities, HE Baber argues, are not passive receivers of APF, but are rational actors who assess the risk of choosing to follow the status quo.[18] If a government heavily promotes education, for example, but access to education remains precarious, an individual has every right to not desire education, nor should they be forced to desire it. Marginalised communities do not need a rise in consciousness or a boost in self-esteem—they need factual information from which they can make an informed decision about what they ought to value.[19] By acknowledging the agency and rationality embedded in the decisions of marginalised groups, we can become aware of multi-dimensional aspirations and the ways that people determine their own needs.[20] Within APF theories, the inadequacy of an institution to provide necessary services and the agency of marginalised communities to determine what should or should not be valued is often left out of discussions. This shifts the blame from the institution itself onto the ‘deprived’ communities who require interventions to change their desires. These changes can do more to harm a community when an increase in desire does not equate to increased opportunities or greater accessibility to services. An imposed desire thus does not benefit a community because it is not reflective of a community’s true needs and dismisses the needs and values that a community has already identified. When institutions are held more accountable, however, and marginalised groups are acknowledged as rational actors, there is a greater capacity to challenge APF. In the next section, I analyse how the cultivation of public emotions around the endogenous desires of a community can help to overcome APF. The importance of emotion APF theorists are keen to acknowledge the depravity and passivity of marginalised communities, which they claim can be rectified by imposing foreign desires and interventions. Though I argue against the imposition of desires, inciting interventions, and identifying marginalised groups as passive, it is imperative to acknowledge that material deprivation can and does exist within these communities. Material deprivation, or the inability to afford basic, negatively affects the social, psychological, physical, and financial components of a person’s life, thus it is necessary to combat deprivation that is linked to APF.[21][22] The question, however, is who should determine and lead this change? In this section, I assess how marginalised groups cultivate public emotions to combat APF and material deprivation, thus becoming agents of social change. Emotions, James Jasper argues, ‘accompany all social action,’ thus they play a significant role in society.[23] These emotions, however, can be hard to control and are often critiqued for their precarious and irrational nature. Moreover, it can be difficult to cultivate unified, public emotions that propel societies towards a specific goal. Gerlie Caspe-Ogatis asserts that human beings can be ‘greedy, anxious and selfish,’ which can hinder privileged classes from caring about the material deprivation faced by marginalised groups.[24] Caspe-Ogatis, therefore, questions how privileged groups can be made to care about the plight of marginalised communities to solve their APF and material deprivation. Though Caspe-Ogatis aims to mobilise emotions productively, I argue that more attention should be given to the emotions and care that already exist within marginalised communities. As such, we should spend less time forging emotions amongst privileged classes and more time mobilising the fears, desires, and motivations present within marginalised groups. By focusing on marginalised groups’ emotions, we become privy to what these groups identify as unjust within their society, such as unequal educational opportunities, discriminatory work practices, or over-policing within their communities. This helps to acknowledge what needs are not being met and what desires are being formulated. Moreover, this begins a process of marginalised communities determining for themselves the best path towards social change. As marginalised groups begin to identify their collective grievances, they become more cognizant of the role that institutions play in inciting material deprivation. This enables marginalised groups to shift the blame from themselves and, instead, work to rectify the structural inequalities that have affected their community. If a community is over-policed, for example, they may determine that police officers are not productive in their society and thus ban the institution of formal policing within their community.[25] Though this ban may not align with the status quo, it reflects the specific needs of the marginalised community involved, thus making it an appropriate solution that increases the community’s freedom. This freedom is contingent upon identifying the endogenous emotions of a community and acknowledging that these emotions inform the experiences and beliefs of marginalised groups.[26] Once these emotions are acknowledged, community leaders can begin to cultivate public emotions that reflect the context-specific grievances of a community, the structural barriers that impose these grievances, and the actions necessary to provoke social change. The cultivation of public emotions around endogenous desires is thus necessary to begin solving APF. Martha Nussbaum acknowledges that the cultivation of public emotions should be undertaken by actors who understand a population’s cultural context.[27] During the Civil Rights movement, for example, Martin Luther King Jr. adopted many of Gandhi’s strategies, yet King did not copy and paste Gandhian norms onto a US context. Instead, King merged Gandhi’s practices with American perspectives to enable anti-racism, Christianity, love, and anti-discrimination to be embedded within Gandhian forms of peaceful protest.[28] The cultivation of public emotions thus necessitates a cultural awareness that is best derived from endogenous actors, grievances, and desires. When APF theories overestimate the importance of elites or foreign ideologies to enact social change, they become ‘problematic because [the]…interpretation either neglects or misconceives the principally bottom-up dynamics of social movements’.[29] For people’s lives to be changed for the better, they need to be acknowledged for determining their own needs and desires, as opposed to being expected to passively receive imposed desires and interventions. The capacity for marginalised groups to rectify structural injustices should never be undermined nor should the presence of emotions within social action be misconstrued as irrational.[30][31] The endogenous cultivation of public emotions is a powerful tool through which rational and agentic actors can identify a grievance, assert a desire, and demand change from the prevailing social structure. Moreover, the APF that is experienced by marginalised groups can be better addressed when blame is not being placed on the communities themselves, but on the institutions that restrains a community. In the next section, I examine how the endogenous cultivation of public emotions during voting rights struggles not only helped to solve APF during the Civil Rights era, but propelled voting campaigns today to provide more access and opportunities to marginalised groups. From grievance to change The Civil Rights movement encompassed a range of goals to ensure that Black citizens were no longer treated as lesser than their white counterparts. By enacting campaigns to dismantle racial segregation, demand decent housing, and end police brutality, civil rights organisers cultivated public emotions that acknowledged the collective grievances of marginalised communities. The cultivation of public emotions not only changed the consciousness of Black people but also the national and global consciousness which helped to formalise laws and policies that favoured the movement’s agenda.[32] In this section, I examine how the struggle for voter registration during the Civil Rights movement cultivated public emotions that continue to help solve APF for marginalised groups today. Taeku Lee’s study of the US Black Insurgency between the 1940s to the 1960s highlights how the endogenous cultivation of public emotions helped solve APF.[33] After decades of experiencing voter suppression, Black Alabama residents identified the right to vote as a key component in overcoming their status as second-class citizens. This desire to vote, however, was met with extreme violence from state and federal governments, in addition to the violence carried out by many white civilians who opposed the Civil Rights movement. The violence eventually culminated in the Bloody Sunday march on 7 March 1965, where over 600 Black residents gathered to walk from Selma to Montgomery to demand voting rights. Marchers, however, were unable to cross the Edmund Pettus Bridge in Selma before state troopers began to massacre protestors.[34] Footage of the brutal attacks sent shockwaves throughout the country, but nothing spoke louder than the desire for Black people to gain voting rights. The massacre incited public outrage and by 15 March 1965, President Johnson proposed a voting rights legislation that countered any legal barriers to voting such as literacy tests and poll taxes. For many scholars during the 1960s, the success of the Civil Rights movement and the accumulation of voting rights was attributed to the elites and politicians who helped pass the voting legislation.[35] As Lee argues, however, the change in federal policy and public opinion was largely due to the Black population that mobilised, against all odds, to demand the right to vote. The Black Insurgency was more than a mere disturbance within US social life; it was the product of endogenous grievances (ie, being treated as second-class citizens), and the subsequent desires borne out of those grievances (ie, accessing the right to vote) that enabled the cultivation of public emotions for social change (ie, legislation that combated voter suppression). In cultivating these emotions via endogenous desires, Alabama’s Black population was able to expand their participation in the political sphere, thus overcoming their limited choices and APF. Moreover, their voting power enforced more accountability among policymakers who could alleviate the material deprivation faced by marginalised groups. This exemplifies how the endogenous cultivation of public emotions is essential to solving APF within marginalised communities. But what makes community organising more effective in solving APF than outside forces, and how are these endogenous practices reflected in today’s voting campaigns? Though it has been over 55 years since the Voting Rights Act was passed, racialised voter suppression has persisted, making it increasingly difficult to mobilise Black voters to the polls. Through repressive legislations, such as Georgia’s SB202 bill, policymakers have imposed stricter requirements on absentee ballots, limited the use of drop boxes in ethnically diverse areas, established earlier closing times for polls in Black and Brown communities, and have criminalised individuals who give food and water to those standing in notoriously long polling lines.[36] In 2021, US policymakers introduced over 360 restrictive voting bills mimicking many of the suppression practices enforced in the Jim Crow era.[37][38] These efforts have not only limited Black and Brown people’s capacity to vote but have invigorated community organisers who refuse to have voter suppression prevail. Organisations such as Black Voters Matter and Black Girls Vote are two of the many organisations that have led impactful community campaigns to mobilise disenfranchised voters. Black Voters Matter (BVM) is a non-profit organisation dedicated to engaging voters by disseminating political information to underrepresented groups, marching in solidarity with suppressed voters, rallying communities to increase voter turnout, and organising campaigns with college students.[39] The organisation is run by Black women, known to be the most ‘effective organisers on the ground because they are trusted voices’.[40] During BVM campaigns, such as their Freedom Bus Tour, organisers travel to different communities around the nation to ‘hear the challenges faced and solutions imagined’, thus giving community members the space to acknowledge their grievances.[41] As Janell Ross argues, ‘Black citizens’ concerns are often ignored [and] treated like a fallout of character flaws rather than policy failure,’ thus it is impactful when organisations treat Black voters as though they matter. BVM is as effective in their mobilisation efforts because they understand how it feels to have their voting rights negated, and for those who do not understand first-hand, they sympathise. The cultivation of public emotions and the mobilising efforts enacted by BVM ‘requires an understanding of Black life and culture’, thus it is necessary to understand the cultural context of a community before APF can be solved.[42] Community, trust, and understanding are found within many local organisations that mobilise Black and Brown voters. Within Black Girls Vote, for example, organisers create and deliver locally themed engagement boxes that cultivate ‘a spirit of celebration about voting [and] capitalises…on Black attitudes about the power of the vote’.[43] This is achieved by understanding Black behavioural norms during election time, and the barriers—both legal and emotional—that may impede someone from voting.[44] Likewise, political organising committees that are housed in Black churches levy their social bonds to help mobilise voters, whilst Black political leaders use their established trust in communities to increase voter turnout.[45] In some cases, organisations provide transportation and food during election season so that voters are prepared to withstand any polling challenges.[46] These personalised touches enable community leaders to mobilise Black and Brown voters more effectively by being respectful of a community’s cultural context. This respect furthers the cultivation of public emotions around endogenous grievances and desires which are then used to change social structures and overcome APF within marginalised communities. A conclusion beyond passivity APF theories often conceptualise disadvantaged groups as being passive and deficient actors in need of direct intervention. Direct intervention assumes that disadvantaged groups are responsible for their suboptimal position, thus elite rational actors are needed to intervene on the group’s behalf. These assumptions place blame on marginalised communities and fail to recognise the role that institutions play in imposing APF. Because APF has significant consequences, such as material deprivation, APF must be solved, but it is also important to acknowledge that it cannot be solved by just any actor. When desires are being imposed upon a community by foreign actors, more effort goes into changing the community’s consciousness as opposed to changing their oppressive condition. This can result in more harm than good when a community’s needs are not being met. However, when a community’s endogenous needs and desires are acknowledged as legitimate reasons for mobilising, then the capacity to solve APF by changing social consciousness and structures increases. APF is, therefore, best challenged and solved when the cultivation of public emotions derives from a community’s endogenous desires, which enables a community to identify its own needs and fight to demand justice accordingly. Donari Yahzid Donari Yahzid is a Fulbright Scholar and graduate of the University of Cambridge with an MPhil in Development Studies. In addition to working as an editor for the CJLPA, Donari is a researcher working within the intersections of social movements, land rights, and international development. [1] Ben Colburn, ‘Autonomy and Adaptive Preferences’ (2011) 23(1) Utilitas 52, 52. [2] David Bridges, ‘Adaptive preference, justice and identity in the context of widening participation in higher education’ (2006) 1(1) Ethics and Education 15-28. [3] John E. Craig, ‘The Expansion of Education’ (1981) 9 Review of Research in Education, 151-213. [4] Paulo Freire, Pedagogy of the Oppressed. (Continuum 1970). [5] Bridges (n 2) 16. [6] Amartya Sen, Development as freedom (Oxford University Press 1999) 63. [7] Martha Nussbaum, Women and Human Development (Cambridge University Press 2000) 116. [8] Bridges (n 2) 16. [9] ibid 17-18. [10] ibid. [11] ibid 20. [12] Nussbaum (n 7) 74. [13] Elaine Unterhalter, James Ladwig, and Craig Jeffrey, ‘Decoding Aspirations: Social Theory, the Capability Approach and the Multiple Modalities of Education’ (2014) 35 (1) British Journal of Sociology of Education 133, 140. [14] Nick Wragg, John Robert Stoszkowski, and Aine Macnamara, ‘The Absurdity of Aspiration within Further Education in England: Where Much is Said but Little is Done?’ (2020) 11(9) Journal of Education and Practice 106. [15] Richard Adams and Sally Weale. ‘Ministers’ loan plans could stop poorer students in England going to university’ Guardian (London, 22 February 2022)  accessed 27 January 2024. [16] Catriona Mackenzie, ‘Responding to the Agency Dilemma’, in Marina A. L. Oshana (eds), Personal Autonomy and Social Oppression: Philosophical Perspectives (Routledge 2015) 49. [17] Serene Khader, Adaptive Preferences and Women's Empowerment (Oxford University Press 2011). [18] HE Baber, ‘Adaptive Preferences’ (2007) 33(1) Social Theory and Practice 105. [19] ibid. [20] Caroline Hart, ‘How Do Aspirations Matter?’ (2016) 17 (3) Journal of Human Development and Capabilities 324. [21] Anne-Catherine Guio and Isabelle Engsted Maquet, ‘Material deprivation and poor housing’ (2006) Draft paper for the conference ‘Comparative EU Statistics on Income and Living conditions: issues and Challenges’. [22] Richard Wilkinson, Unhealthy societies: the afflictions of inequality (Routledge 1996). [23] James Jasper, ‘The Emotions of Protest: Affective and Reactive Emotions in and around Social Movements’ (1998) 13 (3) Sociological Forum 397. [24] Gerlie Caspe-Ogatis, ‘Cultivating Constructive Civic Emotions: Why Compassion Matters in Human Survival During the Covid 19 Pandemic’ (2020) 8 Mabini Review 150. [25] Rachel Abrams, ‘Police Clear Seattle’s Protest ‘Autonomous Zone’’ The New York Times (New York, 1 July 2020) accessed 27 January 2024. [26] Amy Winans, ‘Cultivating Racial Literacy in White, Segregated Settings: Emotions as Site of Ethical Engagement and Inquiry’ (2010) 40(3) Curriculum Inquiry 475. [27] Martha Nussbaum, Political Emotions: Why Love Matters for Justice (Harvard University Press 2013). [28] ibid. [29] Taeku Lee, Mobilizing Public Opinion: Black Insurgency and Racial Attitudes in the Civil Rights Era (University of Chicago Press 2002) 6. [30] Doug McAdam, Political Process and the Development of the Black Insurgency, 1930-1970 (University of Chicago Press 1982). [31] James (n 23). [32] Joyce Ladner, ‘A New Civil Rights Agenda: A New Leadership Is Making a Difference’ (Brookings, 1 March 2000) accessed 27 January 2024. [33] Lee (n 29). [34] Christopher Klein, ‘How Selma's ‘Bloody Sunday’ Became a Turning Point in the Civil Rights Movement’ (Sky History, 18 July 2020) < https://www.history.com/news/selma-bloody-sunday-attack-civil-rights-movement> accessed 27 January 2024. [35] Lee (n 29). [36] Zack Beauchamp, ‘Georgia’s restrictive new voting law, explained’ (Vox, 26 March 2021) accessed 27 January 2024. [37] Janie Boschma, ‘Lawmakers in 47 states have introduced bills that would make it harder to vote. See them all here’ (CNN, 3 April 2021) < https://edition.cnn.com/2021/04/03/politics/state-legislation-voter-suppression/index.html> accessed 27 January 2024. [38] Brandon Tensley, ‘America's long history of Black voter suppression’ (CNN, May 2021) accessed 27 January 2024. [39] ‘Our Purpose’ (Black Voters Matter, 2020) accessed 27 January 2024. [40] Jessica Washington, ‘‘Whatever it takes’: how Black women fought to mobilize America's voters’ Guardian (London, 12 November 2020) accessed 27 January 2024. [41] Janell Ross, ‘A radical way to mobilize black voters in 2020: Work on issues, not voting’ (NBC News, 20 October 2019) accessed 27 January 2024. [42] ibid. [43] Ashley Daniels et al., ‘Party at the Mailbox: Mobilizing Black Voters with Celebrations of Community’ (2020) American Government and Politics accessed 2 February 2024. [44] ibid. [45] Baodong Liu, Sharon D. Wright Austin, and Byron D'Andrá Orey, ‘Church Attendance, Social Capital, and Black Voting Participation’ (2009) 90(3) Social Science Quarterly 576; Christopher Clark, ‘Collective Descriptive Representation and Black Voter Mobilization in 2008’ (2013) 36(2) Political Behavior 315; Seth E Masket, ‘Did Obama’s ground game matter? The influence of local field offices during the 2008 presidential election’ (2009) 73(5) Public Opinion Quarterly 1023; Tracey Osborn, Scott D. McClurg, and Benjamin Knoll, ‘Voter mobilization and the Obama victory’ (2010) 38(2) American Politics Review 211. [46] Chelsea Floyd, ‘Nonprofit Organization Encourages Black Voters, Provides Transportation to Polls’ (Spectrum News, 8 October 2020) accessed 27 January 2024.

Anna Gallina is a Legal Consultant at eyeWitness to Atrocities. Julianne Romy formerly worked as a Legal Advisor at eyeWitness to Atrocities (2021-2023). Valmira Gkioni is the Communications Coordinator at eyeWitness to Atrocities. This article was written in August 2023 and therefore does not include subsequent events or reflect eyeWitness to Atrocities’ work undertaken following this date. Valmira Gkioni: In the past 12 months, more than 160 countries worldwide have witnessed various forms of violence, according to ACLED’s Conflict Index assessment.[1] Some of these conflicts have recently erupted, while others have been ongoing for several years. In this age of the internet and smartphones, social media has become a crucial platform for sharing information and facilitating the distribution and communication of data about atrocities happening globally. Photos and videos depicting human rights violations circulate widely, to raise awareness and, ultimately, seek justice for victims and survivors. The advent of the Arab Spring marked a pivotal moment, expanding the use of smartphones and social media as tools for documenting violence and organising civic engagement.[2] Faced with limited access to towns under attack, Syrian citizens and human rights activists began utilising their mobile phones to live-stream, record videos, and capture photos in an organised manner, showcasing the injustices occurring across the country.[3] Online platforms were inundated with footage of unrest, making the Syrian war one of the most extensively documented conflicts in history, amassing millions of photos and videos.[4] Establishing the authenticity of digital content is crucial for it to be considered admissible as evidence. While mobile devices can capture metadata essential for verification, such as the date, time, or location of capture, both this information and the footage itself are susceptible to alteration. Additionally, major social media companies and messaging apps, including Facebook, X (formerly known as Twitter), Signal, and WhatsApp, automatically remove metadata from footage for privacy reasons.[5] Consequently, images and videos depicting atrocities are often challenged in their admissibility as evidence in court. The eyeWitness to Atrocities App was developed to address this challenge by safeguarding the integrity of footage and streamlining the verification process. The app employs advanced control capture technology, embedding unmodifiable metadata from the moment of capture to ensure the authenticity and provenance of the digital content so that it will be admissible for use in court. One of the app’s crucial features is the protection of the chain of custody, empowering human rights defenders and civil society organisations to capture, preserve, and utilise information on international crimes and human rights violations effectively for accountability purposes. Nevertheless, no application or technological tool operates in isolation to attain justice. Recognising this, CJLPA has engaged in this discussion with eyeWitness’s legal advisors to comprehend thoroughly how the eyeWitness App has been and is presently employed in documenting war crimes and other atrocities. The aim is to gain insights into the essential steps required for footage to be admissible as evidence in court. To achieve this understanding, CJLPA concentrates on three specific contexts that have been central to eyeWitness’s efforts in recent years: Ukraine, Palestine, and Nigeria. CJLPA: eyeWitness to Atrocities—what is it all about? Julianne Romy: ‘A picture is worth a thousand words’ as the adage goes. True, except when it cannot be authenticated. In the early 2010s, the surge of social media platforms and the widespread adoption of smartphones ushered in a revolutionary shift in global interaction. Rapidly evolving into a potent tool for activists and ordinary citizens alike, these platforms facilitated the sharing of footage depicting human rights abuses and violations that might otherwise escape notice in traditional media. As such content proliferated on social media, investigators worldwide confronted a pressing question: could this footage withstand scrutiny in a court of law? After four years of dedicated research, what began as an idea in the mind of Dr. Mark Ellis, Executive Director of the International Bar Association, materialised into a comprehensive, free mobile camera app. This app empowers users to capture verifiable footage of atrocity crimes, deemed admissible as evidence in investigations and trials. In 2015, eyeWitness to Atrocities was officially launched. Uniquely crafted by legal professionals, the eyeWitness to Atrocities App stands as the sole system designed for human rights defenders to collect, verify, and safeguard digital evidence of atrocity crimes, including war crimes, crimes against humanity, and genocide. In essence, the app leverages device sensors to embed metadata, authenticating the date, time, location, and integrity of the images and sound captured by users. The footage and accompanying metadata are secured in the app’s gallery until the user uploads them to a secure server, controlled by eyeWitness to Atrocities and hosted by LexisNexis. This meticulous process establishes a trusted chain of custody, verifying the time and place of capture, confirming that the footage has not been edited, and tracing the footage’s journey from its inception to its storage on the server.[6] Anna Gallina: While the technology underpinning the App is sophisticated, its rationale is straightforward: the authenticity of footage captured with the App would be unquestionable to any judge, whether at the domestic, regional, or international level. No government across the globe could dispute that those human rights abuses and violations occurred on their territory. The power of the footage, devoid of any potential misinformation campaign, stands as an irrefutable testament to the truth, contributing significantly to the evidentiary puzzle crucial for securing a perpetrator’s conviction. An organisation was established around the App, ensuring comprehensive support for users. Whether requiring assistance with investigation planning, technical support, or an intermediary to facilitate connections with accountability mechanisms or transfer information collected, the team stood ready to assist. As the organisation expanded, it assumed a more proactive role, emerging as advocates for the captured footage. This involved close collaboration with partners and the formation of coalitions with a diverse range of experts, including other human rights organisations specialising in specific areas, military analysts, and university clinics. The aim was not just to place the footage in the hands of investigators but also to persuade them to take on cases. Now, nine years into eyeWitness’ existence, the daily reminder is clear: there is no universal approach to accountability. The myriad forms it can take depend on factors such as the context of the crimes, political climate, public pressure, and, naturally, the availability of mechanisms. CJLPA: In the past 18 months, Ukraine has become one of history’s most documented wars. Did this conflict have an impact on international criminal justice? And how has the work of eyeWitness been affected? AG: On 24 February 2022, Russia’s full-scale invasion of Ukraine seized the world’s attention, prompting swift international response. Within a week, the International Criminal Court (ICC), backed by unprecedented support from member States, initiated an investigation.[7] Simultaneously, the United Nations Human Rights Council established an Independent International Commission of Inquiry on Ukraine (UN CoI on Ukraine),[8] and Ukraine, with the backing of 45 participating States, invoked the Moscow Mechanism of the Organization for Security and Co-operation in Europe (OSCE) to establish an expert mission.[9] Subsequently, a Joint Investigation Team was formed among Lithuania, Poland, and Ukraine, with Eurojust’s support,[10] later expanding to include four additional national judicial authorities and the participation of the Office of the Prosecutor at the ICC.[11] Discussions also commenced on the potential establishment of a special tribunal to investigate and prosecute the crime of aggression by the Russian Federation against Ukraine. The wheels of justice were in motion, and it appears that the upcoming decade of international criminal justice will significantly revolve around the war in Ukraine. Simultaneously, domestic-level investigations swiftly commenced, with the Office of the Prosecutor General (OPG) of Ukraine registering over 105,000 instances of alleged war crimes between February 2022 and September 2023.[12] What sets Ukraine apart is the unique collaboration of various mechanisms and organisations pooling their efforts to collect and analyse information for accountability. Notably, there is a concerted effort to preserve evidence of crimes as the rebuilding of destroyed infrastructure progresses. In a departure from practices in other regions, the OPG of Ukraine actively encouraged ordinary citizens to document crimes and submit evidence to a newly established database. Eventually, the OPG endorsed the use of the eyeWitness to Atrocities App and formalised cooperation by signing an agreement with the International Bar Association, granting the OPG access to footage captured with the App.[13] This marked a significant milestone for eyeWitness to Atrocities. Although the App had been in use in Ukraine since 2017,[14] Russia’s full-scale invasion led to a dramatic surge in the volume of footage received by eyeWitness. In a matter of weeks, the App saw downloads from civilians, civil society organisations, law firms, and commercial entities. In less than eighteen months, users of the App contributed over 42,000 photographs, video recordings, and audio files from Ukraine to our server, tripling the cumulative footage received since the App’s inception in 2015. The scale of damage and destruction across Ukraine became evident, leading to unprecedented demands from accountability mechanisms for footage captured with the App. CJLPA: In the more than 40,000 photographs, video recordings, and audio files you received from Ukraine, what stood out as alarming? JR: We promptly observed that a majority of the captured footage originated from densely populated areas, often in close proximity to critical civilian infrastructure, such as healthcare facilities. According to international humanitarian law, medical personnel, units, and vehicles are entitled to specific, enhanced protection, mandating that they are protected by all parties involved in an armed conflict. While attacks on healthcare have been pervasive in armed conflicts worldwide, resulting in severe short- and long-term consequences for populations, they are seldom prosecuted. Armed with this preliminary mapping, we reached out to Physicians for Human Rights, an organisation dedicated to documenting and pursuing accountability for human rights violations and other international crimes, with a particular emphasis on healthcare. Now, eighteen months since the commencement of the full-scale invasion, we have forged partnerships with four additional civil society organisations—Insecurity Insight, the Media Initiative for Human Rights, Physicians for Human Rights, and the Ukrainian Healthcare Center—each contributing unique expertise. Together, our collaborative efforts aim to raise awareness about attacks on healthcare facilities and workers in Ukraine. By leveraging a combination of information derived from open-source channels and confidential sources, which encompass witness and victim testimonies, along with footage captured through the App, we have compiled and submitted the outcomes of our collective efforts to established mechanisms at both domestic and international levels.[15] Our endeavours have culminated in the publication of a comprehensive report,[16] the launch of an interactive map that is regularly updated to document attacks,[17] and a sustained advocacy campaign to prioritise accountability for assaults on healthcare. Additionally, we extended our mapping efforts to encompass the damage and destruction of various other civilian infrastructures, such as housing, food-related and agricultural facilities, energy-related installations, schools, religious sites, and other cultural heritage buildings. Throughout this process, we cultivated collaborations with specialised organisations, benefitting from their expertise in open-source research and military analysis. Notably, certain preliminary findings have been incorporated into a submission to the UN CoI on Ukraine, focusing specifically on the city and its environs of Chernihiv in north-eastern Ukraine.[18] CJLPA: Let’s talk about other contexts where eyeWitness has been active in the past few years. What are some of the challenges you have encountered? AG: One of the many barriers that survivors of atrocities need to face is the relatively few avenues that are available for justice. Even when such avenues exist, at least at the international level, there are contexts in which mechanisms struggle to have access to the countries where the violations are taking place. A striking example in this sense is Palestine. There are currently multiple international bodies focussing exclusively on what is taking place in the country, such as the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 (Special Rapporteur on the oPt) and the most recent United Nations Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, set up in 2021 to investigate alleged violations of international humanitarian law and abuses of international human rights law.[19] Judicial mechanisms are also involved in examining the situation in Palestine, with the International Criminal Court conducting an ongoing investigation[20] and the International Court of Justice being recently petitioned to provide an advisory opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.[21] However, the complexities of the geopolitical landscape contribute to the obstacles survivors face in accessing justice. For these mechanisms to effectively carry out their mandate, a crucial factor is their ability to access the country, a privilege almost consistently denied to them. To illustrate, despite receiving an invitation from the Permanent Observer of the State of Palestine to the United Nations Office and other international organisations in Geneva, the Special Rapporteur on the oPt was unable to visit the country before her latest country report.[22] Similarly, the Commission of Inquiry also mentioned the ‘lack of cooperation on the part of Israel, along with its refusal to allow entry into Israel and to permit access to the Occupied Palestinian Territory, despite the desire of the State of Palestine to allow the Commission to visit’.[23] In such situations, documentation by human rights defenders, civil society organisations, journalists, activists, and ordinary citizens becomes even more crucial. They are the sole entities with immediate access to the crime scene, victims, and witnesses. Our role as legal advisors transforms in these instances: we must ensure that these individuals and organisations receive support and protection, and that the valuable information they gather reaches the attention of actors capable of advocating for change at the international level. CJLPA: What is one of the most alarming issues we are witnessing in Palestine? AG: In the context of Palestine, a pressing concern revolves around the widespread demolition of Palestinian residential buildings, livelihood-related structures, and critical infrastructure—a longstanding feature of Israel’s actions throughout the country. Of particular note is the alarming targeting of schools. The most recent instance at the time of writing was the demolition of an elementary school in the village of Ein Samiya on 17 August 2023, just days before the new school year. Approximately 58 schools across the West Bank now face the imminent threat of demolition.[24] Special Rapporteurs assert that these systematic practices, tied to the appropriation of occupied land, the transfer of part of the Israeli population into such areas, and the ensuing forcible transfer of Palestinians, amount to ‘domicide’.[25] These actions impact a broad spectrum of human rights, including the right to adequate housing, privacy, family, and home, as well as the peaceful enjoyment of possessions. They also infringe upon the rights to life and security of persons, health, water, livelihood, non-discrimination, education, and the overall enjoyment of human rights by Palestinians, including children.[26] Under specific conditions, these practices may constitute violations of international humanitarian and criminal law. While the aforementioned practices have been widely reported on by soft-law mechanisms and may also potentially be amongst the crimes investigated by the International Criminal Court,[27] mechanisms—due to their mandates or jurisdiction—tend to focus on state responsibility or individual criminal liability, at the risk of leaving one of the major actors involved untouched: corporations. CJLPA: Holding corporations accountable is a challenging task. How can this be done? AG: Business enterprises are not exempt from human rights standards. Even in cases where States fall short of their obligations, companies are obligated to uphold human rights. This responsibility includes refraining from violating the rights of others and actively addressing any adverse impacts they may generate. Although guidelines such as the UN Guiding Principles on Business and Human Rights[28] and the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises (OECD Guidelines)[29] clearly outline these expectations, there have been few court cases involving corporations implicated in human rights abuses and other crimes worldwide, including in Palestine. In February 2020, the Office of the High Commissioner for Human Rights (OHCHR) released a report, identifying 112 ‘business enterprises involved in certain specified activities related to the Israeli settlements in the Occupied Palestinian Territory’ that raise particular human rights concerns, such as the supply of equipment and materials facilitating the construction and expansion of settlements, the wall, and associated infrastructures and the supply of equipment for the demolition of housing and property, and the destruction of agricultural farms, greenhouses, olive groves, and crops.[30] Amongst these companies was J.C. Bamford Excavators Limited (JCB), a UK-based private limited company whose main activity is the design, manufacturing, and sale of a wide range of excavating, earthmoving, materials handling, and agricultural machines. Around the same time, we noticed that we were receiving an increasing amount of footage through the App showing the aftermath of demolitions. We also soon realised that construction machinery was often present on the site of demolitions or settlement-related construction. Along with a roster of pro bono lawyers bound by confidentiality agreements, we analysed the footage and filed a written submission to the United Nations Special Rapporteur on adequate housing.[31] A selection of photos and videos, portraying incidents where JCB loaders and excavators were visible on the scene, was shared with the UK-based charity Lawyers for Palestinians Human Rights (LPHR). Soon thereafter, LPHR filed a complaint against the company with the UK National Contact Point (UK NCP) for the OECD Guidelines.[32] The complaint, partially based on the powerful photographic and video evidence captured in Palestine with the App, argued that JCB’s products and construction machinery were used in the demolition of Palestinian properties and settlement-related construction, thereby breaching five provisions of the human rights chapter of the OECD Guidelines.[33] The UK NCP accepted some of the arguments raised by LPHR and concluded that JCB had failed to observe the OECD Guidelines by not having a policy commitment to respect human rights and not carrying out human rights due diligence in its supply chain.[34] Since this final statement, JCB has adopted a new human rights policy, now available on its website.[35] Whilst the provisions included therein seem to limit JCB’s obligations to identify and address human rights violations that may arise from the (mis)use of its products, the adoption alone of such a document signals a step in the right direction. The resolution of the OECD complaint against JCB underscores the significance of exploring unconventional avenues for accountability. As legal advisors, it is our responsibility to identify alternative paths, as they can be instrumental in promoting substantive human rights protection and holding private companies accountable for failure to prevent violations. CJLPA: How do you handle situations where accountability avenues are limited or non-existent? JR: There are contexts in which human rights abuses and violations are committed in areas so remote that they ‘fall through the cracks’ of the judicial system, either for lack of awareness of the situation or as a result of the authorities’ inability or unwillingness to prosecute alleged perpetrators. In these contexts, our role as legal advisors revolves around working with our partners to advocate for the creation of mechanisms that will adequately investigate crimes, prosecute alleged perpetrators, and provide redress to the victims. In Nigeria, for instance, several of our partners use the App to document attacks allegedly carried out by organised and well-armed Fulani ethnic militias against farming communities across the Middle Belt region. Between 2019 and 2023, they captured close to 6,000 photographs and video recordings portraying the immediate aftermath of attacks in remote areas of the region that resulted in the killing of civilians—including children, women, and the elderly—as well as the destruction of houses, food reserves, and other civilian infrastructure. Despite the situation being coined as ‘Nigeria’s gravest security challenge’ by a United Nations Special Rapporteur in 2019,[36] attacks rarely make the news, with the few journalists who cover them facing arrest and detention.[37] When reported on, attacks are often imputed to ‘bandits’ and ‘gunmen’ or generically attributed to ‘the Fulanis’, dangerously conflating Fulani civilians who are also victims of attacks with a violent minority among the Fulani ethnic community that has organised in militias. Unsurprisingly, most attacks go unpunished. In Nigeria, only a handful of attacks have led to formal investigations, the findings of which remain inaccessible to the public, with no prosecutions in sight. As an illustration only, none of the more than 70 attacks documented with the App in the States of Adamawa, Kaduna, Nasarawa, Ondo, and Plateau appears to have led to prosecutions, even where alleged individual perpetrators were identified by victims.[38] The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions similarly noted that whilst official figures reported investigations, prosecutions, and convictions in relation to 90 attacks in the State of Benue between 2017 and 2019, ‘it is striking that no one interviewed [by the Special Rapporteur] had been part of any formal investigation or prosecution process or had access to remedies or reparations for their loss of income’.[39] The ECOWAS Court of Justice—the judicial body of the Economic Community of West African States with jurisdiction to determine cases of violation of human rights that occur in any of its member states, including Nigeria—reached the same determination in relation to the alleged mass killings of the Agatu communities in Benue State that occurred in 2016, ordering Nigeria to investigate the crimes, identify and prosecute perpetrators, and provide redress to the victims.[40] CJLPA: Have there been any accountability initiatives at the international level? JR: At the international level, whilst the Office of the Prosecutor at the International Criminal Court (ICC-OTP) opened a preliminary examination into the Situation in Nigeria between 2010 and 2020, prosecutions in relation to so called ‘inter-communal clashes’ in the Middle Belt region are unlikely to proceed. From 2013 onwards, the ICC-OTP appears to have focused its investigations on the conflict between Nigerian security forces and Boko Haram only,[41] due to the lack of information as to alleged perpetrators, their degree of organisation, and their involvement in attacks in the Middle Belt region.[42] Victims find themselves without alternative avenues to have their cases addressed. The absence of thorough investigations and prosecutions not only widens an impunity gap, denying victims proper redress but also fosters an environment of insecurity where retaliatory attacks are commonplace. In this challenging scenario, soft-law mechanisms emerge as the sole remaining recourse for victims. By elevating awareness within the highest echelons of the United Nations, there is a hope that, at some point, a Human Rights Council-mandated investigative body may be established. Such a body could systematically collect, and safeguard evidence of crimes committed in the Middle Belt region of Nigeria, mirroring efforts undertaken in response to violations in Ethiopia, Iran, Myanmar, South Sudan, and Venezuela in recent years. This specific option has been the focal point of our concerted efforts, working in collaboration with partners in Nigeria. CJLPA: How did you process all the photographs and videos captured with the App? JR: Along with the roster of pro bono lawyers, we reviewed all the footage uploaded to our server, cataloguing, tagging, and objectively describing the material received so that the footage could be searched and further analysed. As part of this work, we looked for any insignias, graffiti, or other written material on the photographs and videos as well as any remnants of ammunitions, listened to and transcribed any audio recordings received as a file or as part of a video recording, and translated the information into English if necessary. Subsequently, we systematically categorised the footage based on specific themes, including deaths and injuries, internal or forced displacement, destruction of residential properties, damage to crops and agricultural infrastructure, and a category encompassing ‘other damage or destruction’, which included religious, healthcare, and educational facilities. We then organised this data according to location and the date of capture. In many instances, documenters supplemented their footage with user notes, offering essential details such as the date, time, and location of alleged attacks, information about victims and alleged perpetrators, and additional contextual information. This user-provided information served as a foundation for our open-source research, undertaken to corroborate and contextualise the data. We delved into identifying the manufacturers of ammunition, as well as alleged direct perpetrators and accomplices. Through this groundwork, we discerned recurring patterns across the Middle Belt region, particularly in the neighbouring states of Kaduna and Plateau. This included insights into the locations of attacks, the types of weapons reportedly used, similarities in modus operandi among perpetrators, and the responses to attacks by security forces and government officials. Then came the strategy. We mapped all potential mechanisms for advocacy and/or accountability, however unlikely they were to act, including their mandates, procedures, deadlines, past action, or interest in similar situations or thematics, and so on. On this basis, we selected several soft law mechanisms and filed written submissions, including to the United Nations Special Rapporteur on extrajudicial, summary, or arbitrary executions,[43] the United Nations Special Rapporteur on adequate housing,[44] and the Universal Periodic Review Working Group.[45] Whilst none of these bodies require the submission of information in a format that could meet the admissibility standards of a court of law, information based on footage captured with the App becomes more credible because the footage itself is verifiable. CJLPA: So, what’s next? AG: We know that justice and accountability take a long time. Investigations into complex human rights violations and atrocity crimes take years, with major challenges surrounding the arrest, detention, and prosecution of alleged perpetrators. For instance, footage captured with the App in 2017 contributed to the conviction of two military commanders for crimes committed five years earlier in two villages located in South Kivu of the Democratic Republic of Congo. There, in May 2012, militias had attacked the villages, burnt them to the ground, and killed 48 villagers, with many others injured. In the immediate aftermath of the attacks, a local organisation had captured footage with standard cameras, but this footage did not contain metadata allowing the location, date, and time of capture to be verified. Five years later, a coalition of international and local civil society organisations, including the legal representatives for victims, partnered with eyeWitness to Atrocities to corroborate some of these photos. New footage was taken with the App, portraying individual and mass graves as well as the injuries of surviving victims. In 2018, a military tribunal in Bukavu, Democratic Republic of Congo, relied upon this footage, amongst other evidence, to convict the militia commanders for murder and torture as crimes against humanity and pillage and arson under domestic law. In Ukraine, Palestine, and Nigeria, footage captured with the App today can result in prosecutions and convictions tomorrow. [1] ‘ACLED Conflict Index—Ranking violent conflict levels across the world’ (ACLED Data, July 2023)  accessed 10 March 2024. Note that the ACLED Conflict Index adopts a wide understanding of the concept of ‘conflict’ and includes civil wars, insurgencies, cartel competition, and social violence. [2] Heather Brown, Emily Guskin, and Amy Mitchell, ‘The Role of Social Media in the Arab Uprisings’ (Pew Research Centre, 28 November 2012)  accessed 10 March 2024. [3] Abdul Raziq, ‘Syrian Citizen Journalists Risk All to Bring Stories from the Frontlines’ (Center for Media and Democracy’s PR Watch, 28 May 2012)  accessed 10 March 2024. [4] Sema Nassar and Iavor Rangelov, ‘Documentation of Human Rights Violations and Transitional Justice in Syria: Gaps and Ways to Address Them’ (London School of Economics and Political Science, 2020) 4  accessed 10 March 2024. See the Syrian Archive at . [5] Steven Woodhall, ‘Which Social Media Networks Remove EXIF Data?’ (17 January 2021) accessed 10 March 2024. [6] For more information about the App and resources, see . [7] Statement of ICC Prosecutor, Karim AA Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation (International Criminal Court, 2 March 2022) accessed 10 March 2024. [8] Resolution adopted by the Human Rights Council on 4 March 2022—Situation of human rights in Ukraine stemming from the Russian aggression, A/HRC/RES/49/1 (United Nations Human Rights Council, 7 March 2022), para. 11 accessed 10 March 2024. [9] Ukraine appoints mission of experts following invocation of the OSCE’s Moscow Mechanism (Organization for Security and Co-operation in Europe, 15 March 2022) accessed 10 March 2024. [10] Eurojust supports a joint investigation team into alleged core international crimes in Ukraine (European Union Agency for Criminal Justice Cooperation, 28 March 2023) accessed 10 March 2024. [11] ICC participates in joint investigation team supported by Eurojust on alleged core international crimes in Ukraine (European Union Agency for Criminal Justice Cooperation, 25 April 2022) accessed 10 March 2024. See also ‘Joint investigation team into alleged core international crimes in Ukraine: one year of international collaboration’ (European Union Agency for Criminal Justice Cooperation, 24 March 2023) accessed 10 March 2024. [12] Office of the Prosecutor General of Ukraine, ‘Statistics’ [13] Andriy Kostin, ‘Prosecutor General of Ukraine, endorses eyeWitness to Atrocities app’ (eyeWitness to Atrocities, 27 October 2022) accessed 10 March 2024. [14] For our work on Ukraine prior to Russia’s full-scale invasion, see for instance, ‘Using verifiable footage to fight for adequate housing in Ukraine’ (eyeWitness to Atrocities, 15 March 2021)  accessed 10 March 2024; ‘Behind the scenes: photographing alleged war crimes in Ukraine’ (eyeWitness to Atrocities, 7 December 2021)  accessed 10 March 2024. [15] See, for example, Ukrainian Healthcare Center, Physicians for Human Rights, eyeWitness to Atrocities, and Insecurity Insight, ‘Attacks on Hospitals and Healthcare in Ukraine—Joint Submission to the United Nations Independent International Commission of Inquiry on Ukraine’ (September 2022) accessed 10 March 2024; Insecurity Insight, Media Initiative for Human Rights, Physicians for Human Rights, and Ukrainian Healthcare Centre, ‘Submission to the United Nations Universal Periodic Review of the Russian Federation’ (4 April 2023) accessed 10 March 2024. [16] Insecurity Insight, Media Initiative for Human Rights, Physicians for Human Rights, and Ukrainian Healthcare Centre, ‘Destruction and Devastation: One Year of Russia’s Assault on Ukraine’s Health Care System’ (eyeWitness to Atrocities, February 2023) accessed 10 March 2024. [17] eyeWitness to Atrocities, Insecurity Insight, Media Initiative for Human Rights, Physicians for Human Rights, and Ukrainian Healthcare Centre, ‘Attacks on Health Care in Ukraine’ accessed 10 March 2024. [18] ‘eyeWitness submitted evidence of human rights violations committed in Chernihiv to UN Commission of Inquiry’ (eyeWitness to Atrocities, 20 October 2022) accessed 10 March 2024. [19] For more information, see, ‘Resolution adopted by the Human Rights Council on 27 May 2021—Ensuring respect for international human rights law and international humanitarian law in the Occupied Palestinian Territory, including East Jerusalem, and in Israel, A/HRC/RES/S-30/1’ (United Nations Human Rights Council, 28 May 2021) accessed 10 March 2024. [20] ‘Statement of ICC Prosecutor, Fatou Bensouda, respecting an investigation of the Situation in Palestine’ (International Criminal Court, 3 March 2021) accessed 10 March 2024. [21] United Nations General Assembly, ‘Resolution adopted by the General Assembly on 30 December 2022—Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem A/RES/77/247’ (9 January 2023) 18 accessed 10 March 2024. [22] Francesca Albanese, ‘Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 A/77/356’ (United Nations General Assembly, Note by the Secretary-General, 21 September 2022) 2 accessed 10 March 2024. [23] Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, Note by the Secretary-General, A/77/328’ (United Nations General Assembly, 14 September 2022) 5 accessed 10 March 2024. [24] ‘Elementary School of Ein Samiya Demolished’ (United Nations Office for the Coordination of Humanitarian Affairs, 17 August 2023) accessed 10 March 2024. [25] ‘UN experts say Israel should be held accountable for acts of ‘domicide’’ (United Nations Office of the High Commissioner for Human Rights, 13 February 2023) accessed 10 March 2024. [26] See for instance, ‘JCB Off Track—Evading responsibility for human rights violations committed with JCB machines in the Occupied Palestinian Territories (Amnesty International, November 2021) 11 accessed 10 March 2024. [27] See Office of the Prosecutor, ‘Situation in Palestine—Summary of Preliminary Examination Findings’ (International Criminal Court, 3 March 2021) accessed 10 March 2024. Specifically see para. 4 including a reference to the transfer of Israeli civilians into the West Bank and para. 9 specifying that the crimes identified in the summary of findings are illustrative only and that ‘the Prosecutor’s investigation will not be limited only to the specific crimes that informed the assessment at the preliminary examination stage’. [28] Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ (1 January 2012) accessed 10 March 2024. [29] ‘OECD Guidelines for Multinational Enterprises’ (Organisation for Economic Co-operation and Development, 2011) accessed 10 March 2024. The OECD Guidelines are recommendations addressed by governments to companies and provide a list of principles and standards of good practice consistent with applicable laws and international standards, including a chapter on human rights which was updated in 2011 to reflect core responsibilities in the UN Guiding Principles. Each state adhering to the OECD Guidelines is required to establish a National Contact Point, tasked with resolving complaints against companies for alleged breaches of the guidelines. The process is non-judicial and may result in mediation or a statement determining whether the company is in breach of the guidelines. [30] United Nations High Commissioner for Human Rights, ‘A/HRC/43/71: Database of all business enterprises involved in the activities detailed in paragraph 96 of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem’ (28 February 2020) 6 (a) and (c) accessed 10 March 2024. [31] This submission was confidential and there is no public version available. [32] ‘Complaint regarding the involvement of JCB in human rights breaches in the occupied Palestinian territory, raised by Lawyers for Palestinian Human Rights’ (Lawyers for Palestinian Human Rights, 10 December 2019) accessed 10 March 2024. [33] ibid. [34] ‘Final statement: Lawyers for Palestinian Human Rights complaint to the UK NCP about JC Bamford Excavators Limited’ (26 October 2021) accessed 10 March 2024. [35] Max Jeffery, ‘JCB Human Rights Policy’ accessed 10 March 2024. [36] Agnès Callamard, ‘Visit to Nigeria. Report of the Special Rapporteur on extrajudicial, summary, or arbitrary executions, A/HRC/47/33/Add.2’ (United Nations Human Rights Council, 11 June 2021) 50 accessed 10 March 2024. [37] Christian Solidarity International, Humanitarian Aid Relief Trust, and the International Organisation for Peacebuilding and Social Justice, ‘Breaking Point In Central Nigeria? Terror And Mass Displacement In The Middle Belt’ (Christian Solidarity International, March 2022) 21-22  accessed 10 March 2024; Anugrah Kumar, ‘Christian journalist arrested after reporting on violence in Nigeria has case delayed again’ (Christian Post, 12 September 2022) accessed 10 March 2024. [38] In this sense, former Special Rapporteur Agnès Callamard noted for instance that two years after the killing of 29 persons in Nkiendoro, Bassa Local Government Area of Plateau State, ‘none of the survivors had been asked to provide testimonies or to attend trial, if trials did indeed occur’. See United Nations Human Rights Council (n 37) 56. In a separate instance, a Judicial Commission of Inquiry was established to investigate a 2019 Kaduna State massacre. While the Commission issued a report to Kaduna State Governor in September 2020, its findings are yet to be made public and no further action has been taken at the State or Federal levels to investigate and prosecute those responsible. See Ben Agande, ‘El-Rufai inaugurates commission of inquiry into Kajuru killings’ (Vanguard, 8 August 2019) accessed 10 March 2024; ‘El-Rufai inaugurates Kajuru commission of inquiry’ (Kaduna State Government of Nigeria, 2 March 2021) accessed 10 March 2024; Don Silas, ‘Kaduna: judicial commission of inquiry submits report on Kajuru crisis to El-Rufai’ (Daily Post, 3 September 2020) accessed 10 March 2024. [39] Callamard (n 36) 66. [40] Judgement, ECW/CCJ/JUD/06/19 (ECOWAS Court of Justice, 26 February 2019) accessed 10 March 2024. [41] Office of the Prosecutor, ‘Situation in Nigeria—Article 5 Report’ (International Criminal Court, 5 August 2013) accessed 10 March 2024; Office of the Prosecutor, ‘Report on Preliminary Examination Activities (2015)’ (International Criminal Court, 12 November 2015) 44-51 accessed 10 March 2024; Office of the Prosecutor, ‘Report on Preliminary Examination Activities (2019)’ (International Criminal Court, 5 December 2019) 47-52 accessed 10 March 2024; Office of the Prosecutor, ‘Report on Preliminary Examination Activities (2020)’ (International Criminal Court, 14 December 2020) 64-7 accessed 10 March 2024; ‘ICC Prosecutor, Mr Karim A.A. Khan QC, concludes first official visit to Nigeria’ (International Criminal Court, 22 April 2022) accessed 10 March 2024. [42] Office of the Prosecutor, ‘Situation in Nigeria—Article 5 Report’ (International Criminal Court, 5 August 2013) 13-21 accessed 10 March 2024. [43] ‘eyeWitness and partners file urgent appeal to UN regarding extrajudicial killings in Nigeria’ (eyeWitness to Atrocities, 15 June 2022) accessed 10 March 2024. [44] This submission was confidential and there is no public version available. [45] ‘Nigeria: Joint submission for the fourth Universal Periodic Review, January-February 2024’ (eyeWitness to Atrocities, 1 August 2023) accessed 10 March 2024.

Does the law take its own course or is it made to take a certain course? Property cases are notorious for taking forever, but when the crime is murder, i.e., when the state is the prosecutor, and the facts of the case have been ascertained by the most reliable authorities, can justice elude the victim’s families for as long as two or three decades? Or is it made to do so? These questions arise from the way two cases—which should have been front page news but have simply disappeared from the public consciousness—have developed. I. When protectors become predators On 9 January 1993, when Mumbai was in the grip of the second wave of communal riots sparked off by the demolition of the Babri Masjid[1], eight Muslims were shot dead by the police inside the Suleman Usman Bakery and the adjacent madrasa (an Islamic school) in the city’s old Muslim quarter. The trial of those policemen is still on—over 29 years later. If there was ever a case that can be described as an ‘orphan’, this is it. Nobody is interested in it. Those most affected by the incident—the victims’ families—are either unaware of or indifferent to the legal proceedings. The whereabouts of only one of the eight affected families is known: Abdullah Qasim, the son of one of the victims, is now a middle-aged school teacher with a family in Mumbai. The fire within, that propelled him as a 20-year-old to intervene in the initial stages of the case, is seemingly gone. Believing that the killers of his father will never be punished, his involvement is limited to appearing in court when summoned as a witness. He has already done so five times in the space of a year, taking leave from work each time—but every time, his turn to depose hasn’t come. For the Public Prosecutors (PPs) that have handled the case through the years, the tattered, yellowing files present an unpleasant, thankless duty; for the defence, the longer it is delayed, the lower the chances of their clients being brought to book. And for judges, the fact that the case is still pending, almost three decades after the incident at its centre, remains an enigma. ‘Kasla case ahey? (What’s this case about?)’. This question, asked with irritation by every new judge (the case record shows it’s meandered through at least 11 courts and 13 judges so far), is like a stab through the heart. If only they knew the words used by a sitting High Court judge to describe the incident! ‘The police behaved in a manner not becoming of a police force of a civilised, democratic state’, concluded Justice B N Srikrishna, heading the one-man judicial commission of inquiry into Mumbai’s post-Babri Masjid demolition riots of December 1992 and January 1993.[2] I have, in my capacity as a journalist, followed this case from the time it was filed, i.e., since 2001. The detailed descriptions of the incident that I had read earlier, in the Srikrishna Commission’s records, remain like vivid images in my brain. Had those descriptions been reported in the mainstream media, the victims’ families may have got the justice they deserve. Alas, the proceedings of the Commission did not get the media coverage they deserved.[3] Hence, what’s prevailed in the media and the public consciousness is the police’s narrative: that when the city was in the grip of communal riots, the police had no option but to raid the Suleman Usman Bakery in response to an SOS about AK-47-wielding terrorists firing at them from the rooftop. The fact that no terrorist, no AK-47, indeed, no firearm was recovered, and no policeman was injured (either before or during the raid) has been ignored. This narrative has prevailed even in the Supreme Court, which upheld the discharge of 9 of the 18 policemen accused of murder for this raid, including the senior officer who led it, then Joint Commissioner of Police Ram Dev Tyagi, who later became Mumbai’s Commissioner of Police. In 2003, a trial court accepted Tyagi’s argument that he had merely done his duty by responding to the SOS. Moreover, he had told his squad to use minimum force, and himself had neither entered the bakery, nor fired a single shot. Eight of his colleagues were also discharged because it was proved that they had not fired at all. This reasoning was upheld by the Bombay (Bombay High Court has NOT changed its name) High Court in 2009 and finally by the apex court in 2011, thus freeing these policemen from the burden of standing trial for an operation executed by them that left 8 unarmed people dead. Their nine colleagues were, however, not discharged, and continue to stand trial. (Two have died.) The trial court found that these nine were the ones who had actually fired during the raid, and hence they should be tried for murder. There was ample evidence that the firing had been accompanied by assaults on the civilians within the bakery and madrasa, but the charges against the policemen did not include assault. *** Was this discharge simply a matter of the law taking its own course? Not quite. This was in fact the best the Maharashtra government[4] could achieve in its efforts to protect these policemen. Left to themselves, no administration in India would have prosecuted them. When Justice B N Srikrishna submitted his report in February 1998, the Maharashtra government was run by the Shiv Sena in coalition with the BJP, both parties who believed in Hindutva.[5] Given that the report indicted leaders of both the Shiv Sena and the BJP, it was no surprise that the government rejected the Report. The Congress-Nationalist Congress Party (NCP) coalition, which took over the state a year later, had had the implementation of the Srikrishna Commission Report in its manifesto. Yet, it was only after the Chief Justice of India (CJI) pointedly asked the government counsel what action had been taken against Tyagi that the government moved.[6] The CJI was hearing petitions urging implementation of the Srikrishna Commission Report, which had indicted 31 policemen for their conduct during the riots. Tyagi was the senior most of those indicted. Forced to act, the Maharashtra government appointed a Special Task Force (STF) comprising hand-picked policemen to analyse the Report and act on it. The STF filed a First Information Report (FIR) charging Tyagi and 17 policemen who had participated in the Suleman Usman Bakery raid, with murder. The media went hysterical. A former Police Commissioner actually being charged with murder for his actions during a time of communal violence! The BJP repeated its recurring charge of ‘Muslim appeasement’[7] against the Congress; senior police officers waxed eloquent on ‘demoralization’[8] and how the next time there was a riot, no policeman would bother to act. In all this, the state government kept silent. Indeed, it need not have said anything; it could have just presented to the media the depositions of the survivors of the incident in front of the Srikrishna Commission. The following testimonies would have been in the papers.[9] A bakery employee told the Commission that, hiding behind a small wall, he heard sounds of firing, saw blood splashing onto the pile of baking trays in the room, people running out onto the terrace.[10] When all was quiet, he peeped out and saw the bakery manager Shamshad, clad in vest and lungi, with two commandos pointing their guns at him. ‘Shamshad was folding his hands and begging them to excuse him. Then he sat down near the feet of the commandos. One of them kept saying that Shamshad was a Pakistani, while the other said he was a Kashmiri. Shamshad kept saying he was a bhaiya from Jaunpur, Uttar Pradesh. One of the commandos said, ‘Khaata hai Hindustan ka, gaata hai Pakistan ka. (You eat India’s food, but you sing praises of Pakistan)’.[11] Two minutes later, the witness heard more firing. Peeping out again, he saw ‘Shamshad lying on his side, writhing in pain, blood flowing out and drenching his clothes. He was reciting the kalma (the Islamic prayer). After about a minute or two, his voice trailed off and he became quiet’.[12] This one testimony would have been enough to silence all those talking about ‘appeasement of Muslims’. But there were more: ‘Shamshad was shot on the right side of his chest. He fell. Anwar was shot on the left temple. He also fell down and died. Feroz, Jamil, and Shabir were all shot down near the water tank on the second terrace’, recounted another witness. All this while, said the witnesses, the police demanded that the people in the bakery show them their weapons. Unable to find any ‘armed terrorists’ in the bakery, the police moved to the adjacent madrasa. There, they dragged a disabled elderly teacher, Abul Qasim, out of the room and, according to an eyewitness: ‘made an action as if they were trying to throw him down from the second-floor balcony of the madrasa. However, they did not actually throw him down, but pulled him back from the passage and dragged him down the steps to the ground floor. I saw him lying in the courtyard of the masjid with four bullet wounds’.[13] ‘The police’s main target was our beards’, deposed 60-year-old Sadrul Huda, an Arabic teacher. His head was broken and bleeding after the police beat him. He saw Noor ul Huda being kicked on the face when the latter revealed that he was an Arabic teacher. Wouldn’t these testimonies have convinced readers that if this was the police doing their ‘duty’, they could not go unpunished? Why didn’t the Congress-NCP government publish them? Leaving aside Justice Srikrishna’s assessment of the raid, why did they at least not publicise what their own Special PP had said about the incident: ‘the accused (policemen) abused their authority and misused their power to cause intentional death, without there being any duty to perform or any authority to exercise’. Why did they allow the common Indian (especially the Hindus) to believe the BJP’s propaganda that charging policemen with murder was only done to ‘appease Muslims’? Obviously because the government’s heart was not in this prosecution. This became clear immediately, in the way they responded to the anticipatory bail application filed by Tyagi to avoid being arrested. Tyagi had by then retired. Left to themselves, the Congress-NCP government would have left the handling of Tyagi’s application to the regular PP, who would have treated it as just another case. But human rights groups pressured the Home Minister into appointing a Special Public Prosecutor (SPP). The Home Minister then was Chhagan Bhujbal, a believer in the Shiv Sena’s Hindutva ideology, even after having left the Sena to join the Congress and later the NCP. When the Commission’s Report was tabled in the State Assembly in August 1998, and simultaneously rejected by the Sena-BJP government, Bhujbal was Leader of the (Congress) Opposition in the Assembly. I had asked him then, whether, as leader of the Opposition, he would make the implementation of the Srikrishna Commission Report an issue. ‘What! And lose the Hindu vote?’ he had retorted. After the Congress-NCP took over in 1999, activists fighting to get the 31 policemen indicted by the Commission punished, found the Home Minister unresponsive: ‘What do you expect?’ Bhujbal asked in his characteristic belligerent fashion. ‘That I punish every policeman and make the force my enemy?’.[14] However, in 2001, under public pressure, Bhujbal appointed senior criminal lawyer Pheroze Vakil as SPP to oppose Tyagi’s anticipatory bail application. Vakil’s impassioned and brilliant arguments ensured that Tyagi’s application was rejected. Prima facie this was a case of murder, observed the judge. The Supreme Court refused to intervene when Tyagi appealed. The same words: ‘prima facie, this is a case of murder’ were used by the Sessions Court too, where Tyagi filed for regular bail. However, the court was forced to grant him bail, on grounds of parity with his co-accused policemen. To the judge’s surprise, the government did not oppose the latter’s anticipatory bail applications[15] because, as the SPP stated, they didn’t want them to lose their jobs. Had they been arrested, they would have had to be suspended. Such was the Congress-NCP’s concern for cops accused of murder, first by a sitting High Court judge and then by their own specially constituted panel of policemen! Neither Tyagi, nor any of his co-accused, spent even a moment in police or judicial custody. Given SPP Pheroze Vakil’s spectacular oratory against Tyagi, how could the trial court grant the former Commissioner a discharge? Simply because Vakil was kept in the dark about Tyagi and his fellow accused’s discharge applications. The regular PP handled them. The regular PP had once presented an application in court on behalf of Tyagi, the man he was supposed to prosecute. ‘Are you representing the accused or the State?’ the magistrate had shouted at him. Thus were the victims of ‘cold-blooded murder’ by the police (Justice Srikrishna’s words) betrayed by those entrusted with protecting them. Any surprise then that the government did not appeal against the discharge? It was left to Maulana Noor ul Huda, whose first encounter with the police was a blow to his head when he opened the door of his madrasa to let them in, to appeal against the discharge all the way to the Supreme Court. Huda carried that scar on his temple till he died. An ill-tempered man, Huda had refused to get involved in the struggle to book the cops who’d beaten and humiliated him. ‘Leave me alone; I have a heart problem’, he would tell activists who approached him. But when it dawned on him that Tyagi’s discharge meant that the officer who’d changed his life forever would never be tried, he plunged into the legal battle, staying with it till the end, rejecting feelers sent by Tyagi, and advice by mediators to ‘compromise’. ‘I want to show that we are not powerless, we too have guts’, he said. ‘History will record that there were people who fought’.[16] It would have been easy for Huda to give up, or compromise, for he was, all through those years, caught up in another unfair battle. After the raid, he, among 78 people found inside and around the bakery and madrasa, had been taken to the police station and charged with attempt to murder and rioting. For Justice Srikrishna, the police’s version of events inspired ‘no credence’. For the STF, these charges were ‘a got-up document’, an attempt by the police ‘to justify their firing’. These were the words they used in their FIR against Tyagi. Yet, the government didn’t think fit to withdraw this case against the 78. In 2011, 18 years after the incident, Noor ul Huda and the other 77 accused got their freedom from these bogus charges. Disposing of the discharge application filed by the Maulana and another accused, the High Court said: ‘Nothing can be more frightening than when the protector becomes the predator’. But hardly had Huda savoured his freedom then came the news of the Supreme Court dismissing his appeal and upholding Tyagi’s discharge. That shattered him. A year later, Huda passed away. The trial against those who’d tormented him began in 2019. By then, two of the 18 accused policemen had died. Since then, four different judges have heard the case. While the accused have had the same lawyer defending them from the start, the state has not bothered to appoint an SPP who would be dedicated to this case. Thus, every time the case lands up in a new court, a new PP, totally in the dark about what it’s about, has to fight it. *** I remember asking Tyagi to comment on August 6, 1998—the day the Srikrishna Commission Report was tabled—on the Commission’s indictment of him, its recommendation of ‘strict action’ against him. ‘This is what the Commission has said’, Tyagi had replied coolly. ‘Let’s see what the government has to say’. As events have shown, the senior police officer’s confidence was not misplaced. In this case, all along, the protector has acted like the predator. II. When the state subverts a trial When 27-year-old Khwaja Yunus came home to Parbhani for a Christmas break from his job as a computer engineer in Dubai, his family couldn’t have imagined that this would be the last vacation he’d spend with them. He was holidaying in the hill-station of Chikaldhara when he was arrested on 25 December 2002, for bomb blasts that had taken place 500 km away in a Mumbai bus on December 2. Two people had died in what came to be known as the Ghatkopar blasts, after the suburb in which they took place. Yunus and his 17 co-accused were charged under the Prevention of Terrorist Act (POTA). On 7 January 2003, the young man was reported to have ‘escaped’ when the vehicle in which he was being escorted by police to Aurangabad met with an accident.[17] A police complaint was even lodged against him by Assistant Sub Inspector Sachin Vaze, head of his escort party. Yunus was never seen alive again. A petition filed by Yunus’ father resulted in a court-ordered Criminal Investigation Department (CID) inquiry which concluded that Yunus had been killed in custody. The CID named 14 policemen as responsible. But the state government gave sanction to prosecute only four of them, those who supposedly took him to Aurangabad, with whom he was last seen. Then began the long legal battle to get the policemen punished. Yunus’ father died a year later; his mother Asiya Begum and his brother have been carrying on the fight till today. In the process, they’ve found that there’s no adversary more powerful than policemen, for they have the full might of the state behind them. This reality was stated in so many words earlier this year by the former SPP appointed for the case. After the first witness in the trial, Dr Abdul Mateen, a co-accused in the Ghatkopar blast case, testified that he had seen four (other) policemen torturing Yunus till he collapsed, the SPP filed an application asking that these four be added to the list of accused (bringing the total accused to 8 policemen). Soon after, he was sacked. In an email to Yunus’ lawyer, now part of the court’s record, the former SPP wrote about his sacking: ‘The disturbing aspect of this case is that some faceless bureaucrat(s) actively connived with the police personnel responsible for causing the death of a person in custody in order to thwart criminal proceedings, and they have successfully managed to cause further delay in an already inordinately delayed trial’.[18] This one sacking was enough to reveal the government’s desire to protect policemen indicted by its own investigative agency for a custodial death. So enraged was the government that it dismissed the SPP without even informing him! He came to know that he had been removed from the case in court, when the regular PP brought the government’s resolution sacking him. She even bore a request from the government that the trial be stayed till the Supreme Court heard Asiya Begum’s long-pending petition asking that all 14 policemen indicted by the CID be prosecuted. Interestingly, this request had already been made thrice by the 4 policemen who were being prosecuted, and turned down by the trial court. In his email, the SPP revealed that a caller from the government had sought to find out who had instructed him to file the application asking that the four policemen named by Dr Mateen be made additional accused. He replied that no instructions were received, ‘nor were any necessary in view of the clear provisions of the law’. ‘Would he withdraw this application if he were to be reinstated?’ the former SPP was asked. His answer was one expected of a man whose first loyalty was to his client: ‘No’. That the government’s first loyalty was to the indicted policemen was clear even before this sacking. Having allowed only four of the 14 indicted by the CID to be prosecuted, it tried its best to protect them in court by denying their victim a good lawyer. Those familiar with criminal cases know that regular PPs, overworked and underpaid, are least interested in giving their best and getting a conviction. For them, every case is as unimportant as the next. Keeping this in mind, in 2014, the Bombay High Court passed an order that matters of custodial deaths needed a Special PP to handle them. Yet, after the resignation ‘on personal grounds’ of the first SPP who had handled the Khwaja Yunus case from the start, the government put it on record that the regular PP would handle the case.[19] When Asiya Begum’s lawyers pointed out that this violated the Bombay High Court order, the government tried the next best ploy to help the accused—non-cooperation with the SPP. Neither of the two SPPs appointed after this were given the necessary case papers. It was left to Asiya Begum’s lawyers to fill in the lacuna. Indeed, the government’s reluctance to prosecute any policemen at all for having killed an innocent man in their custody, was evident right from the beginning. That Khwaja Yunus was innocent became clear when all those accused with him of together conspiring to set off the Ghatkopar blast were either discharged or acquitted. Yet, the government dragged its feet even in quashing the false case against him of having ‘escaped’ from police custody. The Khwaja Yunus case has seen two clear demarcations. Instead of the usual divide in murder cases between the accused and the state which prosecutes them on behalf of the victim, in this case the victim’s lawyer and the SPP chosen by her have found themselves having to fight not only the accused’s highly-paid lawyer but also the state government which appoints the SPP! It’s worth noting that state governments comprising all political parties have acted in the same way. When Yunus was arrested and killed in 2003, the Congress-NCP government was in power. It remained in power till 2014. The delaying tactics, the resistance to move in the matter, were all acts of this government. The BJP-Shiv Sena government that succeeded it in 2014, kept up the tradition, as seen by its actions in the Supreme Court. In 2012, the Bombay High Court had upheld the state government’s decision to sanction the prosecution of only four policemen. Asiya Begum had appealed against this decision in the Supreme Court. Her appeal was naturally opposed by the indicted officers. But the State government opposed it too. Curiously, the same lawyer defending the policemen was appointed by the BJP-Sena government then ruling Maharashtra to represent it. What did this imply? In theory, the government was supposed to safeguard Asiya Begum’s interests, for, according to the government’s own investigative agency her son was killed by the state police. But the Maharashtra government came out openly identifying itself with the policemen accused by its own agency of killing an innocent man in their custody; it saw no difference between protecting the rights of the victim and those of his killers. But it is the current government, comprising a coalition led by the Shiv Sena, with the NCP and the Congress as its junior partners, that has committed the most brazen act of support to the policemen so far. It has reinstated the four cops standing trial for murder. This was done in 2020, during the COVID-19 lockdown, when courts were at a standstill, hearing only urgent matters in virtual mode. The four accused policemen, who were under suspension, were reinstated under the pretext of staff shortage during the Covid 19 crisis. In its defence, the police administration cited a government circular of 2011, which said that where a case is pending against suspended policemen two years after the charge sheet has been filed, they can be reinstated to non-executive posts. In the Khwaja Yunus case, the government itself has made sure the case against these suspended policemen has remained pending for 19 years. Interestingly, there were as many as 113 suspended policemen in the force who met this criterion for reinstatement. Of them, only 18 had their suspension revoked. In this highly selective exercise, the government made sure that four policemen charge-sheeted for a custodial death and for destruction of evidence, made the grade. Here too, there was an irregularity. The main accused, Assistant Sub Inspector Sachin Vaze, was reported to have resigned from the police force after his arrest.[20] In 2008, he even joined the Shiv Sena at their annual rally, and in 2010 formed his own company and launched his own website.[21] How then could he be reinstated? Simple—his resignation had never been accepted by the police. He was suspended after his arrest, and continued to be regarded as part of the force. So Vaze, known as an ‘encounter specialist’ (part of a group of policemen encouraged by all governments to indulge in extra-judicial killings of criminals, in orchestrated shoot-outs called ‘encounters’), had the best of both worlds: he could fall back on the force when needed, and could also enjoy the freedom of being outside it. Contrast this indulgent treatment with the way the government has treated Asiya Begum, as well as Dr Mateen, on whose eyewitness testimony the case against the policemen rests. Khwaja Yunus’ mother, now 72, has spent the last 19 years rushing to court every time the government has refused to prosecute the uniformed men who killed her son. Indeed, if at all the truth about her son’s ‘disappearance’ has emerged (and four out of 10 of his alleged killers have faced arrest and trial) it’s been only because of the orders passed by various courts. In fact, the courts had to force a reluctant Maharashtra government to ‘trace’ the three (out of four) policemen who absconded right after prosecution against them was sanctioned. The latest such order in favour of Asiya Begum has come from the Supreme Court, and it is poetic justice that it vindicates the last act of the dismissed SPP. In response to a petition filed by her, the apex court has ruled that the trial court could go ahead and decide on the application filed by the dismissed SPP which sought to make the four policemen named by Dr Mateen as additional accused. It didn’t need to wait for the Supreme Court’s decision on whether the remaining 10 policemen should also be made accused. No doubt the government will now pull out all stops to protect these policemen in the trial court, but for now, Asiya Begum has won this round. Dr Mateen was a doctor in a government hospital when he was arrested in December 2002. After his acquittal in 2005, the hospital refused to take him back, because the government had appealed against his acquittal. He currently works in a private hospital. A job in a government hospital is a respected post; Dr Mateen earned it through his merit but lost it due to the malafide action of the government. In this manner, innocent Muslims are pushed out of the mainstream by governments supposed to represent them. *** Soon after his reinstatement, Vaze got involved in a bizarre case involving a bomb placed in a vehicle outside the Mumbai residence of top industrialist, currently Asia’s richest man, Mukesh Ambani. The owner of the vehicle was killed and Vaze is now in jail accused of murder. For Asiya Begum, who once told me that the ‘policemen are roaming free, we are slowly dying’, that’s the only justice she’s got in these 19 years. Jyoti Punwani Jyoti Punwani is a freelance Indian journalist who has reported for various newspapers including Indian Express, Times of India, The Hindu, DNA and other news media including Economic & Political Weekly, Scroll, and The Hoot. She writes and has reported on Indian politics, civil and criminal law, communalism, police brutality, and gender equality. [1] On 6 December 1992, the Babri Masjid, a 463-year-old mosque in Ayodhya, Uttar Pradesh, was demolished by supporters of the Hindu supremacist organisation the Rashtriya Swayamsevak Sangh (RSS), as security forces looked on. The demolition resulted in communal violence in various cities, the worst affected being Mumbai. The demolition was the culmination of a 7-year-long campaign by the RSS and its various affiliates, including its political wing, the Bharatiya Janata Party (BJP—which currently rules at the Centre). The campaign propagated the belief that the mosque had been built by the first Mughal emperor of India, Babar, on the exact site where the Hindu deity Ram was born, and that it was built after demolishing a Ram temple. In its judgement on the dispute in 2019, the Supreme Court found no evidence of the mosque having been built after demolishing a temple. Then BJP president L K Advani described the Ayodhya movement, which abused Indian Muslims as ‘children of Babar’, as an assertion of ‘cultural nationalism’, thereby equating a Hindu deity and Hinduism with the nation, and challenging the concept of secularism guaranteed in the Indian Constitution. That phase was the forerunner to the majoritarian politics that dominates today. The communal campaign helped the BJP increase its tally from 2 Members of Parliament in 1984 to 85 MPs in 1989 and 120 in 1991. [2] Justice B N Srikrishna, ‘Volume II: The Evidence’ (The Srikrishna Commission 1998) accessed 12 June 2022. [3] Jyoti Punwani, ‘Delhi police in 2020 and Mumbai police in 1992-93: Why consistent media focus matters’ The Times of India (Mumbai, 14 October 2021) accessed 12 June 2022. [4] Mumbai (earlier called Bombay) is a city within the Indian state of Maharashtra. The state has its own government, since India follows the federal structure of governance. This article predominantly focuses on the actions of the Maharashtra state government, therefore ‘state government’ and ‘Maharashtra government’ are used interchangeably. Government at the centre will be referred to as ‘central government’. [5] The political ideology that equates Hinduism with Indian nationalism and believes that India belongs primarily to the Hindus. [6] As reported to me by the lawyers present at the event. [7] TNN, ‘BJP workers protest against Tyagi’s arrest’ The Times of India (Mumbai, 18 August 2001) accessed 12 June 2022. [8] Nirmal Mishra, ‘Tyagi’s arrest is darkest chapter in police history’ The Times of India (Mumbai, 16 August 2001) accessed 12 June 2022. [9] Jyoti Punwani, Witnesses Speak: A compilation of evidence produced before the Srikrishna Commission of Inquiry into the December 92 – January 93 Mumbai Riots (1998). Available online at . [10] ibid. [11] ibid. [12] ibid. [13] ibid. [14] TNN, ‘A riot that got away’ The Times of India (Mumbai, 5 August 2007) accessed 12 June 2022. [15] Anticipatory bail enables an accused to avoid arrest. Regular bail is given to an accused who has been arrested. Tyagi filed for anticipatory bail hoping to avoid arrest. After his application was rejected, arrest became inevitable. So, he got admitted to a hospital and was formally arrested while in hospital. He remained in hospital till he got regular bail. [16] Interview with me. [17] TNN, ‘Ghatkopar blast accused escapes’ The Times of India (Mumbai, 8 January 2003) accessed 12 June 2022 [18] Jyoti Punwani, ‘Khwaja Yunus custodial death: Ex-special public prosecutor questions state govt’s motive’ (Mid-day, 28 March 2022) accessed 12 June 2022. [19] Jyoti Punwani, ‘Special prosecutor in Khwaja Yunus case quits’ Mumbai Mirror (Mumbai, 13 February 2013) accessed 12 June 2022. [20] S Ahmed Ali and Mateen Hafeez, ‘Cop accused of killing Yunus quits’ The Times of India (Mumbai, 1 December 2007) accessed 12 June 2022. [21] Swapnil Rawal, ‘Sachin Vaze’s Shiv Sena connection’ Hindustan Times (New Delhi, March 16 2021) accessed 12 June 2022.

Like many other Rwandans, I heard for the first time of the United Kingdom (UK)’s plan to send its unsolicited asylum seekers to Rwanda to claim asylum there on the news. It was when the then UK Secretary of State for Home Department, The Rt Hon Priti Patel, and the Rwandan Minister of Foreign Affairs and International Co-operation, Dr Vincent Biruta, were shown shaking hands on media across the word, after signing what the two countries called an ‘Immigration and Economic development partnership’ in Kigali, in April 2022. The topic had never been debated in the Rwandan parliament and neither had it been canvassed in the local media prior to the announcement and signing of the partnership. Priti Patel, representing the British government, said that the UK had signed a world-leading Migration Partnership with Rwanda which can see those arriving dangerously, illegally, or unnecessarily into the UK relocated to Rwanda to have their claims for asylum considered and, if recognised as refugees, to build their lives there. She added that this will help break the people smugglers’ business model and prevent loss of life, while ensuring protection for the genuinely vulnerable. Dr Vincent Biruta, representing the Rwandan government, said that there is a global responsibility to prioritise the safety and well-being of migrants, and Rwanda welcomes this partnership with the United Kingdom to host asylum seekers and migrants and offer them legal pathways to residence. He also stated that the partnership is about ensuring that people are protected, respected, and empowered to further their own ambitions and settle permanently in Rwanda if they choose.[1] The Rwandan government’s official press release, issued straight after the signing of both countries scheme of asylum transfer to Rwanda, reads that the partnership reflects Rwanda’s commitment to protect vulnerable people around the world.[2] The press release highlights that by relocating migrants to Rwanda, the dignity and rights of those migrants will be respected. It claims that migrants will be provided with a range of opportunities, including for personal development and employment, in a country that has consistently been ranked among the safest in the world. A considerable number of Rwandans have experienced what it means to be displaced, and even formerly or currently been refugees themselves, due to historical conflicts and/or political oppression as well as economic struggles in Rwanda. Rwandans, irrespective of their political stance—either against or for the ruling party in Rwanda—would understand the struggle that comes with being an asylum seeker and what it means to receive help from host countries to rebuild lives. Therefore, most Rwandans are sensitive to the plight of those forced to leave their home countries and would be more than willing to make them feel welcome. However, this does not change the fact that the arrangement to deport asylum seekers from the UK to Rwanda is unlawful and that Rwanda does not qualify as a safe third country to send asylum seekers to. Rwanda’s Legitimate Actions to Solve Global Immigration Issues As a signatory to the 1951 United Nations Convention Relating to the Status of Refugees (ratified on 26 January 1982) and the 1967 Protocol (ratified on 26 January 1982) as well as the 1969 Organization of Africa Unity (OAU) Convention Concerning Refugees (ratified on 26 January 1980), Rwanda already delivers upright and permissible actions to ensure the overall general protection, security, and safety of the persons of concern. These actions are executed in collaboration with the United Nations (UN), the African Union (AU), and developed countries that provide technical and financial support. It is through the delivery of these actions that Rwanda lawfully contributes towards solving global immigration issues. For instance, Rwanda has been hosting refugees from neighbouring countries. Today, the country is home to 134,519 refugees and asylum seekers mainly from the Democratic Republic of the Congo (DRC) and Burundi.[3] The majority of these refugees have been settled in six refugee camps located throughout different parts of Rwanda as well as accommodation in urban areas of the country.[4] Rwanda’s Ministry in Charge of Emergency Management (MINEMA), in collaboration with the United Nations High Commissioner for Refugees (UNHCR), is responsible for the smooth delivery of multi-sector assistance to refugees residing in refugee camps and reception centres, as well as to refugees and asylum seekers living in urban areas. Rwanda is also a temporary host for refugees being evacuated from Libya. There has been a desperate situation unfolding in the country involving thousands of migrants and refugees languishing in detention centres or enduring homelessness, exploitation, and abuse while trapped in an endless cycle of violence.[5] In response, the Government of Rwanda, UNHCR, and the AU signed a Memorandum of Understanding (MoU) in September 2019 to set up a transit mechanism for evacuating refugees out of Libya.[6] Under this MoU, the Government of Rwanda agreed to receive and provide protection to 500 refugees and asylum-seekers who were being held in detention centres in Libya and willingly choose to be transferred to safety in Rwanda. The aim of this action is to temporarily host refugees and asylum seekers who have undertaken voluntary evacuation from Libya with a view that some evacuees would benefit from resettlement to third countries, while others would be helped to return to countries where asylum had previously been granted, or to return to their home countries if it was safe to do so.[7] Some would be given permission to remain in Rwanda subject to agreement by the competent authorities. Two Emergency Transit Mechanism (ETMs) were established in Rwanda to support the agreed number of refugees and asylum seekers evacuated from Libya at any given time and to conduct case processing for resettlement and other durable solutions. While in the ETM, the asylum seekers go through refugee case processing undertaken by UNHCR to determine if they are a refugee.[8] In October 2021, the first Addendum to the tripartite MoU of September 2019 was signed by the parties, agreeing to renew and extend the MoU until December 2023 and to increase the total number of individuals to be hosted in the centre to 700 people at any given time.[9] According to UNHCR, between September 2019 and March 2023, 1600 refugees and asylum seekers were evacuated from Libya to the ETM in Rwanda by way of 13 evacuation flights.[10] The refugees and asylum seekers consist of mainly Eritrean, Somali, Sudanese, Ethiopian, South Sudanese, Cameroonian, Nigerian, and Chadian nationalities. To date, all refugees have opted not to stay in Rwanda but for resettlement to third countries. Over 900 refugees have subsequently been resettled to third countries. Currently, the ETM is hosting 698 refugees and asylum seekers.[11] The European Union has been the main funding partner to UNHCR for the operation of the ETM in Rwanda—between 2019 and 2022, the EU donated €12 million to the project.[12] The EU granted to the UNHCR an additional €22 million in February 2023 to support its operation of the ETM in Rwanda until 2016.[13] Prior to signing an arrangement for evacuation of refugees from Libya to Rwanda with the country’s government, the UNHCR had been involved in similar schemes with other countries. In May 2008, a tri-partite agreement establishing the Emergency Transit Centre (ETC) in Romania was signed by the Government of Romania, the International Organisation for Migration (IOM) and UNHCR.[14] In November 2017, UNHCR had established for the first time an ETM for the evacuation of vulnerable refugees and asylum seekers from detention in Libya to Niger and signed a MOU with the Government of Niger in December 2017 to temporarily expanding the Niger asylum space to these refugees and asylum seekers.[15] The UNHCR schemes with Romania, Niger and Rwanda that evacuate refugees from Libya are certainly reasonable because they protect migrants from torture, sexual violence, and indefinite detention. However, this is not the case with the Rwanda asylum plan between the UK and Rwanda. Rwanda also deploys troops in peacekeeping missions across the world. By doing so, Rwanda contributes towards addressing threats to international peace and security, an action that is connected to rightly solving global immigration issues. In that context, Rwanda has deployed its military and police personnel on UN peacekeeping missions in Darfur (completed in 2020), the Republic of South Sudan, the Central African Republic, and the Interim Security force for Abyei. Rwanda is today ranked the fourth-most country contributing personnel to UN peacekeeping operations.[16] Rwanda has also entered into bilateral agreements with individual states which have led to additional deployments of its defence forces and police personnel into those countries to ensure security and peace. This was the case during the deployment of Rwanda defence forces and national police to Cabo Delgado, a province of Mozambique affected by terrorism and insecurity. The Rwandan force protection troops were also deployed to the Central African Republic to counter the targeting of the UN peacekeeping forces by rebels. I commend the Rwandan government for the aforementioned actions, as they demonstrate that in spite of Rwanda being categorised as a poor and least developed state, it is certainly making a major contribution towards solving global immigration issues. Of course, more can be done to fulfil Rwanda’s commitment to protecting vulnerable people around the world. However, this is not to be rightfully done currently because the scheme to transfer asylum seekers from the UK to Rwanda is not lawful. Rwanda Policy is Unlawful Just a few months after the MOU between the UK and Rwanda was signed by both countries’ officials, UNCHR, pursuant to its responsibility under the United Nations General Assembly to ensure the promotion and supervision of compliance with international refugee law, published a note that summarizes its views on the legality and appropriateness of partnership on the asylum transfer between the governments of the UK and Rwanda.[17] The UN agency made the note with reference to international refugee law norms and principles, as articulated notably in the 2013 UNHCR Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers and UNHCR’s 2021 Note on the ‘Externalization’ of International Protection. In its note, the UNHCR explained that although States may make arrangements with other States to ensure international protection, these arrangements must—as the preamble of 1951 Convection provides—advance international cooperation to uphold refugee protection, enhance responsibility sharing and be consistent with fundamental rights and freedoms of asylum seekers and refugees. International law requires States to fulfil their treaty obligations in good faith. However, the UK and Rwanda arrangement does not advance international cooperation that would uphold any protection to refugees who would be transferred under the scheme. The MoU on the arrangement[18] clearly states that it will not be binding in international law[19] and does not create or confer any right on any individual, nor shall compliance with it be justiciable in any court of law by third-parties or individuals.[20] It also stipulates that in case of disputes[21] the participants will make all reasonable efforts to resolve between them all disputes concerning the arrangement. Neither participant will have recourse to a dispute resolution body outside of this. The absence of regularising the MoU raises questions on the protection of asylum that will be transferred under the partnership if, for unforeseeable reasons, the partnership suddenly ends. Moreover, the arrangement between the two states does not contribute to burden-sharing and responsibility-sharing and puts the asylum seekers transferred from UK to Rwanda at risk of refoulement. The UNCHR’s assessment of the Rwandan asylum system is that the system is still nascent, while the UK asylum system is highly developed and has the capacity to consider asylum claims. This renders the arrangement as not promoting responsibility-sharing between the two states but simply shifting the burden from the UK to Rwanda, which is not in line with the 1951 convention. The UNHCR had submitted shortcomings in the Rwandan asylum system to the Universal Periodic Review in July 2020.[22] Among these flaws include the inefficiency and untimely manner of asylum procedures, lack of objective assessment of the fairness and efficiency of the asylum procedures, lack of representation by a lawyer for asylum seekers, arbitrary denial of access to asylum by Rwanda’s Directorate General for Immigration and Emigration, discrimination in access to the asylum procedures for groups such as LGBTQ+ persons and so on. These shortcomings have resulted in those wishing to claim asylum in Rwanda being left undocumented, at risk of detention and deportation and produced incidents of chain refoulement. The flaws in the Rwandan national asylum system represent a challenge to the legality of the UK-Rwanda transfer; for any arrangement to transfer asylum to be deemed legal, it must ensure that access to fair and efficient procedures for the determination of refugee status is guaranteed. The UNHCR explains that the legality of transfer arrangements also requires those transferred to be treated in accordance with accepted international standards. These requirements reflect the rights granted to refugees under the 1951 Refugee Convention. Concerns over whether refugees transferred to Rwanda will be treated in accordance with respected international standards are considerable. Rwanda has constituently been categorised as ‘not a free country’ by Freedom House and has a history of and continues to disregard international obligations, including human rights such as those set out in the Convention Against Torture, amongst others. This situation is well-known to the UK government. In January 2021 during the 37th Session of the Universal Periodic Review, while sharing recommendations to improve human rights in Rwanda, the UK Foreign Commonwealth and Development Office expressed its concerns regarding continued restrictions on civil and political rights and media freedom, and urged Rwanda, as a member of the Commonwealth and future Chair-in-Office, to model Commonwealth values of democracy, rule of law, and respect for human rights.[23] The UK tabled recommendations for Rwanda to improve its human rights. However, Rwanda did not support these recommendations. This prompted the UK to issue yet another statement expressing its regrets that Rwanda did not support its recommendations, which was also made by other states, to conduct transparent, credible and independent investigations into allegations of human rights violations including deaths in custody and torture.[24] The UK expressed its disappointment that Rwanda did not support its recommendation to screen, identify and provide support to trafficking victims, including those held in government transit centres in Rwanda. Human rights violations and torture affects anyone in Rwanda who dares to challenge the government’s narrative, including refugees hosted in the country. In 2018, twelve Congolese refugees were shot and killed by Rwandan police as they tried to march out of their camp in protest of a cut in food rations.[25] 65 Congolese refugees were also arrested.[26] Those arrested were accused of causing uprising or unrest among the population, of spreading false information or harmful propaganda with the intent to cause a hostile international opinion against Rwandan Government, and of holding illegal demonstration or public meeting. Only one person was acquitted, whilst the rest were sentenced to three to six years of imprisonment. Lastly, international law requires that transfer arrangements must ensure that when a person being transferred is recognised as being in need of international protection, that person is able to access a durable solution. Yet evidence shows that Rwanda remains a poor and less developed country with limited resources. Rwanda produces its own refugees due to ongoing repression and the lack of economic opportunities. One example of Rwanda’s insufficiency as a third country to transfer asylum is the previous bilateral arrangement between Rwanda and Israel. Unlike UK-Rwanda asylum transfer deal that was publicly announced, the transfer arrangement between Israel and Rwanda was of a secretive nature. Some 4000 Eritrean and Sudanese asylum seekers based in Israel were sent to Rwanda and Uganda between 2013 and 2018. For those asylum seekers sent to Rwanda, testimonies collected by the International Refugee Rights Initiative suggest that the majority, if not all, were being smuggled out of the country by land to Kampala within days of arriving in Kigali.[27] They were not given an opportunity to apply for asylum, and even if they wished to stay in Rwanda, their refugee claims could not be assessed as the national refugee status determination committee has yet to be established. The UNHCR note concluded that the UK-Rwanda arrangement fails to meet the required standards relating to the legality and appropriateness of bilateral or multilateral transfers of asylum-seekers, making it incompatible with the letter and spirit of the 1951 Convention. Furthermore, the note adds that the arrangement cannot be brought into line with international legal obligations through minor adjustments. Although the UK High Court ruled that the arrangement itself is lawful, it added concern that the asylum seekers being transferred to Rwanda were not allowed to argue about the safety of Rwanda. Hence the case was appealed. The Court of Appeal concluded that the deal was unlawful because Rwanda was not a safe third country to send asylum to. The Court noted that Rwanda’s system for making asylum decisions was inadequate.[28] The system has serious deficiencies, and at the date of the hearing in the High Court, those deficiencies had not been corrected and were not likely to be in the short term. The Court of Appeal also stated that asylum seekers transferred to Rwanda would be at risk of refoulment, making Rwanda not a safe third country.[29] The Court established substantial grounds for believing that there is a real risk that the asylum claims may be wrongly refused by Rwanda’s national system. Moreover, it revealed that asylum seekers sent to Rwanda faced a real risk of mistreatment.[30] The Court of Appeal also disagreed with the argument by the UK Secretary of State for the Home Office that the past and the present should either be ignored or sidelined in this case.[31] The Israel-Rwanda agreement is illustrative of the danger and suffering that is likely to arise from the UK’s externalisation plan,[32] and the shooting of Congolese refugees in Rwanda in 2018 has also been considered. The Court was not convinced by the UK Secretary of State for the Home Office’s uncritical acceptance of assurances from Rwanda, or that these assurances are enough to wipe away all real risk of violations while the structural institutions that gave rise to past violations remain in Rwanda today.[33] It is indeed a fact that institutions in Rwanda demonstrate use of violence against citizens and this makes Rwanda not a free country. Anyone who dares to challenge the government’s policies and narratives is persecuted and labelled an enemy of the state intending to destabilise Rwanda. I know this because I, amongst so many others, have experienced it first-hand. Rwanda is Not a Free Country In 1999, several years after the end of a civil war that culminated in the genocide against the Tutsis and crimes against humanity in Rwanda, the Rwandan Patriotic Front (RPF)—the country’s new rulers—held a national dialogue referred to as ‘Urugwiro Village’ meetings to discuss how Rwanda could solve its issues with democracy, amongst other issues. The outcome of these consultations was an agreement that going forward the East African nation should adopt a ‘consensual democracy’. This ‘consensual democracy’ was deemed the best option to supposedly guide the philosophies of governance in Rwanda based on its population, culture, and history in order to accelerate development and to prevent further ethnic violence in the country. However, the ruling party has over time transformed Rwanda’s consensual democracy into a political system that suppresses political dissent, restricts pluralism, and curbs civil liberty in Rwanda. This situation has led Freedom House to consecutively categorise Rwanda as not a free country.[34] Rwanda’s score on the Democracy Index has decreased and remained below global and African countries averages between 2006 and 2022.[35] The Index has consecutively[AMH1] categorised the Rwanda regime as authoritarian. Indeed, a closer look reveals that lack of effective electoral process, pluralism and political participation are the main reasons that Rwanda has been assigned a stunted score. There has been a pattern of restricting political participation in Rwanda, particularly during the periods preceding each Rwandan presidential election, since the RPF took power. The victims have always been members of opposition who do not toe the line of the government’s narrative and who have announced that they would run against the ruling party’s only candidate, President Paul Kagame, in those presidential elections. Amnesty International reported that during and after the first post-genocide presidential election in Rwanda that took place in August 2003, opposition candidates and supporters faced harassment and intimidation.[36] In fact, former Prime Minister Faustin Twagiramungu, who was one of the main presidential candidates against President Paul Kagame, was denied registration of his newly formed party the Alliance for Democracy, Equity and Progress.[37] He was also forced to interrupt his campaign before the presidential election after death threats were made against his aides. The report of the European Parliament Delegation’s observation of the 2003 presidential elections stated that the best-placed opposition figure was eliminated from electoral contest by the invalidation of his candidature before the start of the elections campaign.[38] The report added that this opposition figure was in prison at the time of the report’s publication. Dr Theoneste Niyitegeka, who took care of many people injured in the 1994 genocide, tried to put forward his candidacy but was rejected.[39] Afterwards, he was charged with the crime of genocide and sentenced to 15 years in prison in 2008. International and domestic human rights organizations have claimed the charges against Niyitegeka were politically motivated.[40] Rwanda’s record of human rights abuses were amongst the reasons that the Commonwealth Human Rights Initiative (CHRI) recommended that the 21st Commonwealth Head of Government Meeting, held in Port of Spain, Trinidad and Tobago, in November 2009, should not make a decision about Rwanda’s Commonwealth membership application.[41] In the end, however, the decision was taken to include Rwanda as part of the Commonwealth. I had truly hoped that our government would apply Commonwealth values in its governance, but this did not happen. Persecution of opponents who were in the best position to compete with President Paul Kagame increased once again in the run-up to presidential elections in 2010. Accusations of ‘divisionism’ and ‘genocide ideology’ which were based on vaguely-worded legislation continued to be used to stifle legitimate dissent. Me Bernard Ntaganda was selected by members of the political party he presided over, the Ideal Social Party (PS-Imberakuri), to be their candidate during the 2010 presidential elections in Rwanda.[42] He was arrested on the first day on which presidential candidates could register for the election. In 2011, the High Court in Kigali found Ntaganda guilty of endangering national security, ‘divisionism’—inciting ethnic divisions—and attempting to organize demonstrations without official authorisation. In 2010, I left my husband and our three children and returned to Rwanda from exile in the Netherlands, with the intention of registering my political party and running in Rwanda’s presidential elections later in the same year. On the day of my return to Rwanda, I visited the Kigali Genocide Memorial Centre in Gisozi and gave a speech urging unity and reconciliation. I said that for Rwanda to experience true reconciliation, we need to recognise all crimes committed in Rwanda, including the genocide perpetrated against the Tutsi and the crimes against humanity committed against the Hutu. My opinion was based on United Nations Report S/1994/1405. Three months later, I was arrested and dragged into a politically motivated judiciary process that would include years of solitary confinement, relentless smear campaigns, and a long, painful separation from my family. The then-UK Parliamentary Under Secretary of State for Africa declared that I was arrested on trumped up charges.[43] In 2012, the High Court of Rwanda sentenced me to eight years in prison for ‘conspiring against the government by use of war and terrorism’ and ‘genocide denial’. My speech at the Gisozi Genocide Memorial Centre, where I called for effective reconciliation, was considered evidence of ‘genocide denial’. The European Parliament issued a resolution stating that my trial did not meet international standards and was based on fabricated evidence and confessions from co-accused who had been coerced through torture at military detention to make false confessions against me.[44] The EU strongly condemned the politically motivated nature of my trial. I was never deterred by the biased judgement of the Rwandan court. I appealed the High Court’s decision to the Supreme Court, only for the latter to extend my sentence from eight to 15 years. In 2014, I filed a claim against the Rwandan government to the African Court on Human and Peoples’ Rights (AfCHPR). In 2016, just as the AfCHPR was set to decide on my claim, the government of Rwanda withdrew its declaration enabling individuals to file complaints with the court.[45] Nonetheless, having already reviewed my claim, the AfCHPR concluded in 2017 that the Rwandan government had violated my rights to freedom of expression and adequate defence. The court also ordered the government to reimburse me and my family for the material and moral prejudice I suffered during my prosecution and imprisonment. The government has refused to recognise and has not executed that court order to this day. This situation is an example of where the Rwandan government has failed to honour its international commitment. During the annual conference of African Bar Association held in Nairobi, Kenya in 2018, a resolution on Rwanda was passed urging the Rwandan government to respect orders of the AfCHPR in my case, amongst others.[46] In September 2018, I was released early by presidential pardon after eight years of detention, five of which I spent in solitary confinement. This pardon came with two conditions: I must appear before the primary level prosecutor in my place of residence, must appear at the prosecution office once a month and must seek authorisation from the minister in charge of justice every time I wish to go out of the country. These conditions shall cease to apply at the end of the remaining period of imprisonment, which I was supposed to serve till 2025. Upon my release, I launched the political party Dalfa Umurinzi with a mission to strive for the rule of law and for sustainable development benefiting every Rwandan. Although the constitution provides me with the right to organise a general assembly, I am not permitted to register my political party or to be approved for operation. In 2019, I received an international award from the Association for Human Rights of Spain (APDHE). I could not travel to Spain to collect the prize because I had no right to leave Rwanda without permission from the Minister of Justice. Two requests to do so have received no response from the authorities. I have not seen my family in the Netherlands for more than 10 years. Early this year, I wrote to President Paul Kagame requesting that he withdraw the conditions attached on the early pardon he gave me under humanitarian ground because I would like to travel to the Netherlands and be with my husband who is severely ill. I have yet to receive any response from the President. During the 2023 annual conference of African Bar Association held in South Africa, another resolution was passed reminding the Rwandan government to respect orders of the AfCHPR , including my case. Another presidential candidate, Ms Diane Rwigara, was only 35 years old when she decided to run in the 2017 presidential elections in Rwanda against President Paul Kagame. She was also persecuted, being accused of inciting insurrection and fraudulently obtaining the necessary requirements for her candidacy. She was arrested and detained with her mother for a year. Ms Rwigara and her mother were acquitted of all charges after the presidential election was completed.[47] Persecution in Rwanda is not limited to presidential candidates. Many of my supporters have lost their lives, or disappeared after responding to my call to struggle for the establishment of genuine democracy, respect for human rights and rule of law in our homeland.[48] Today, eight of my supporters are still in prison after acquiring a book and attending an online training session about the philosophy of non-violence.[49] Freedom House has consistently categorised Rwanda as not a free country not only because of the political restrictions, but also the curbing civil liberties. Independent human rights organisations such as Human Rights Watch and Amnesty International have frequently reported that judicial authorities in Rwanda prosecute opposition members, journalists, and commentators on the basis of their speech and opinions. Last year, Human Rights Watch reported that Rwandan authorities have threatened, arrested, or prosecuted people reporting or commenting on current affairs via YouTube. The organisation noted that the judiciary system in Rwanda is lacking the independence to stand up and protect free speech in accordance with international law. Through politically motivated prosecutions, Human Rights Watch has alleged that the judicial authorities in Rwanda perpetuate a culture of intolerance to dissent. Indeed, those kept in detention have said that they are regularly tortured. In June 2022, Human Rights Watch reported that a prominent Rwandan YouTube commentator, Aimable Karasira, accused prison authorities of beating him and other jailed critics.[50] In a statement at a court hearing in Kigali in May 2022, Mr Karasira, held in Nyarugenge prison, also said prison authorities were intercepting and withholding privileged communications from his lawyer. The shooting of 12 Congolese refugees that took place in Rwanda in February 2018, which is used as evidence that asylum seeker transferred from the UK to Rwanda are at risk of ill-treatment, is the result of that same culture of intolerance perpetuated across some institutions in Rwanda. The use of violence to prevent citizens from exercising their rights, and particularly those who dare to challenge the Rwandan government and its narratives, is another example demonstrating Rwanda’s failure to honour its international commitments. This is especially true when looking at its international commitment to respect human rights as a member of the UN Human Rights Council and in ratifying the Convention Against Torture in December 2008. Persistent human rights violations have only reinforced the top-down decision-making approach of the Rwandan regime. Thus, the level of citizen participation remains low and undermines good governance in Rwanda. The Worldwide Governance Indicators database, which independently reports aggregate and individual governance indicators for over 200 countries and territories, has revealed that Rwandan governance largely lacks voice and accountability (the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and a free media). The Ibrahim Index of African Governance (IIAG), an independent tool that measures and monitors governance performance in African countries, also came to a similar conclusion. The most recent IIAG shows that Rwanda governance is mainly affected by low levels of participation, rights, and inclusion in the country. Rwanda’s strategy of placing women in high-level decision-making roles, though commendable, has not spurred participation. This is because, as a 2019 study found, the majority of women in high public responsibility roles are card-carrying members of the ruling party or its coalition partners. This means most women in high official roles owe allegiance to the ruling party, rather than the constituencies that elected them. Hence, they adhere to the ruling party governance methods known for not tolerating criticism and restraining citizen participation.[51] Failure to efficiently involve citizens in the decision-making has prevented the Rwandan government from achieving its development programme and prevented the economic progress made by Rwanda from being inclusive. Rwanda’s Economic Growth Hides Flaws The implementation of a ‘consensual democracy’ as a new political system to direct the governance of Rwanda was not the only outcome of the national consultation held in 1999. The RPF administration also promised to transform Rwanda from a low-income to a middle-income country driven by a knowledge-based economy by 2020. That plan was named the Rwanda Vision 2020 development programme and Rwanda started working towards achieving its targets in 2000. Over the following two decades, the Rwandan government received net official development assistance (ODA) from donor countries and institutions equivalent to 16 billion USD from 2000 to 2018. It has raised roughly 9 billion USD of tax revenue between 2009 and 2019. The government has also borrowed finance from external and domestic markets to the tune of 72.4% of GDP which is equivalent to 7 billion USD as of end 2020. Rwanda has experienced significant growth and has been listed the tenth-fastest growing economy in the world from 2001 to 2010, income per capita increased and so has the human development index of the country.[52] However, this growth has not been inclusive and is marred by inequalities in income, education, and health. Moreover, food insecurity in Rwanda is a challenge. Only 40% of Rwanda households are substantially food secure. Rwanda’s growth has not translated into any considerable poverty reduction, particularly in rural areas. The government has chosen to invest a large segment of public funds into the meetings, incentives, conferences, and exhibitions (MICE) industry, developing the touristic areas of the country, and building impressive infrastructure in the capital, Kigali. These efforts have not translated into increased employment across the country and have provided no benefit to rural communities struggling the most. MICE-related developments suffered a lot due to the pandemic, further limiting the gains made. Now as a result of these and other short-sighted economic strategies, Rwanda stands on debt equivalent to a whopping 73% of its GDP. Despite the praise the Rwandan government has received internationally for advancing the country’s development, Rwanda remains categorised among the poorest and least-developed countries in the world. The government’s promise to transform Rwanda into a middle-income state by 2020 has not been delivered.[53] Rwanda remains a low-income state and is categorised among the poorest and least-developed countries today. The Rwandan government has postponed the target to transforming Rwanda into a middle-income state in 2035. There are no official documents that explains why the government did not achieve the anticipated objectives of Vision 2020, and what needs to be improved so that the government’s future development programmes meet their targets. Instead, the government launched yet another ambitious development programme, called Vision 2050. This one aims to transform Rwanda into an upper middle-income state by 2035 and a high-income state by 2050. Rwandan economic progress has shortcomings, especially in those areas needed to achieve genuine social and economic transformation for the wider population. In my opinion, there are four main areas that Rwanda’s economy has fallen short on. First, Rwanda lags behind in human capital development. Between 2018—the year the Human Capital Index (HCI) was first published—and 2020, Rwanda’s ranking on HCI has been consistently low. The HCI measures which countries are best at mobilising the economic and professional potential of their citizens. In spite of Rwanda having significantly increased the level of school enrolment in Rwanda, its score on the World Bank Human Capital Index 2020 is lower than the average for sub-Saharan Africa.[54] A child born in Rwanda today will grow up to be 38% as productive as they could have been if they had enjoyed high-quality education and healthcare. The reasons behind such a low score are Rwanda’s poor education standard and high rates of malnutrition. It is important to highlight that since 1998, the UK Department for International Development (DFID) has provided over 1 billion GBP in development assistance to Rwanda to develop areas including its agricultural and educational sectors.[55] A persistently low standard of education is among the main reasons that Rwanda struggles to attract private investment. Second, the development of a solid social capital that is genuinely reconciled and united and capable to advance the development of their country is yet to be achieved. This is challenged by the legacy of the history that led to the 1994 genocide against Tutsi and other crimes against humanity committed in Rwanda and the country’s governance since. Many people lack confidence that there has been justice for all the atrocities committed. I have always pointed out that genuine reconciliation will remain elusive until Rwanda honours and remembers all the victims, of all the crimes, committed during that dark period in our country’s history. Each time I called on the Rwandan government to ensure all crimes of our past history are recognised, I am referred as engaging in polarising politics. Ironically, the United States and the United Kingdom, Rwanda’s closest and most influential allies, share the view that failing to honour the many Hutus and others killed during the genocide paints an incomplete picture of this dark chapter in my country’s history. Curiously, they are never accused of being ‘polarising’. The persisting human rights violations reported in Rwanda over the past decades honed by economic injustice such as authorities uprooting farmers crops or engaging in unfair land expropriations have contributed to social capital depletion in Rwanda. This has increased citizens’ distrust of government institutions and officials. Thus, Rwanda has consecutively ranked among the five nations with the least-happiest populations on the World Happiness index. According to findings of the African Youth Survey 2022, the optimism about the direction of Rwanda of Rwandan youth aged between 18 and 24 has significantly declined from 94% in 2019 to 60% in 2022.[56] Third, the lack of citizen participation in decision making remain low in Rwanda. The power remains with the executive in Rwanda. Human rights organisations have established that Rwanda’s judiciary system is influenced by the executive as in many occasions it has delivered politically motivated judgments. Rwanda has experienced sudden and rapid decline of its performance on index of economic freedom over the past four years due to, among other reasons, the lack of judicial effectiveness. Rwanda moved from being the 2nd freest economy in Sub-Saharan Africa and the 32nd freest in the world in 2019, with a score of 71, to the 30th freest economy in Sub-Saharan Africa and the 137th freest in the world in 2023, with a score of 52.[57] The Parliament that is supposedly to speak on behalf of the people is made of members from the ruling party and from opposition parties affiliated to it. Thus, citizens in Rwanda lack ability to hold their policymakers accountable and this has been an obstacle to development. While Rwanda scores above the sub-Saharan African average for ‘control of corruption’ and ‘government effectiveness’ in the Worldwide Governance Indicators, it falls well below the average for ‘voice and accountability’. Policies are typically implemented with little input from citizens and often lack sensitivity to the population’s wants and needs. This top-down approach not only means that people may be not satisfied with government policies, but the stifling of dissenting voices also means those policies are less likely to be effective and well-designed. For decades, there have not been independent opposition political parties in the country capable of providing checks and balances to the government’s decisions and accountability. The lessons in history teach us that Rwanda is highly unlikely to transition to a modern and competitive middle-income country without developing highly capable and genuinely accountable institutions. Finally, Rwanda’s relationship with its neighbouring states have been deteriorating. This has prevented Rwanda from maximising its potential in the region for the development of its economy. The strained relations arise from the Rwandan government often alleging that its neighbouring states are supporting forces made up of Rwandan refugees that want to topple its leadership by force. Moreover, some of these neighbouring states have accused Rwanda of meddling into their internal affairs. The situation has been creating regional political tensions and have prevented Rwanda from efficiently integrating in the region for the development of its citizens, for example transparently being part of the supply chain of the region’s natural resources. Taking into consideration the flaws in the economy of Rwanda, how would migrants, who may have suffered psychological trauma fare in such an environment, and in a country that is still rebuilding itself? In fact, Rwandans are fleeing Rwanda to seek refugee abroad due to both political and economic reasons. Rwanda Produces Refugees Rwanda itself creates thousands of refugees every year, and its government has yet to guarantee a safe environment for Rwandan refugees settled across the world to return home. According to UNHCR, in 2021 alone, 12838 Rwandans fled the country and applied for asylum elsewhere. This tragic trend did not start recently. Rwanda has been producing refugees in significant numbers since before the country’s independence in 1962. The Rwandan Revolution of 1959, for example, pushed some 300,000 Rwandans into exile in neighbouring Tanzania, Burundi, the Democratic Republic of the Congo (then Zaïre), and Uganda. Just over a decade later, in 1973, a coup d’état caused an additional 40,000 to flee the country. In 1990, the RPF, the armed group made up of the descendants of those who fled the country in the wake of the 1959 revolution, launched an attack on Rwanda seeking to restore democracy and human rights in the country and facilitate the return of refugees to Rwanda. That war increased the number of refugees living in neighbouring countries to at least 600,000. The RPF eventually defeated the government forces and assumed control of Rwanda. But the civil war culminated in the genocide against the Tutsi and pushed about 1.75 million additional Rwandans to seek refuge in neighbouring countries. Approximately 700,000 Rwandan refugees (the majority being those who had fled Rwanda during the 1959 revolution including their children born in exile) returned to Rwanda. The RPF administration led by Kagame was determined to bring all Rwandan refugees home, using soft or hard power—at any cost. In 1996, as part of the Alliance of Democratic Forces for the Liberation of Congo (AFDL) coalition, the Rwandan army invaded the DRC and fought the Rwandan forces that had sought refuge there after the 1994 genocide. During that conflict, the camps that were hosting Rwandan refugees were directly attacked and the UN reported that thousands of Rwandan refugees and Congolese nationals were killed in the process.[58] Close to 750000 Rwandan refugees returned to Rwanda as a result of this conflict.[59] Some of the survivors still live in the DRC, while others have managed to flee to countries in Southern Africa and outside the African continent. They all carry with them horrific memories of state violence. Moreover, the Rwandan government also sought to bring refugees home by signing voluntary repatriation agreements with the governments of African states hosting Rwandan refugees. The Rwandan government also convinced the UN to end the refugee status of Rwandans who had left the country before November 1998. Despite all these efforts, the number of Rwandan refugees in Africa and beyond remains concerningly high. According to the most recent figures by the UNHCR, there are still more than 250,000 Rwandan refugees across the world. There are compelling reasons why so many Rwandan refugees do not want to—or do not feel safe enough to—return to their motherland. The devastating memories of the civil war, the genocide against Tutsi and the killing of refugees in the DRC by government forces are still fresh in the minds of many Rwandan refugees and in the absence of a comprehensive reconciliation policy, they have little reason to want to return to Rwanda. Moreover, persistent poverty and deep inequality, coupled with widespread political persecution and oppression, has not only discouraged the return of existing refugees but is pushing more Rwandans to leave the country and seek safety elsewhere. The failure of the Rwandan government to guarantee a safe environment for Rwandan refugees settled across the world to return home has been a source of instability in the African Great Lakes region. Among the refugees that fled Rwanda to seek refuge in the Democratic Republic of Congo after the RPF army took power in 1994, were the remnants of defeated Rwanda forces and militia responsible for the genocide. Since then, the Rwandan government has maintained that there are negative forces resident in eastern DRC who are set out to destabilise Rwanda, especially the Democratic Forces for the Liberation of Rwanda (FDLR). The FDLR is an armed group formed by Rwandan refugees in DRC who, following their forcible eviction from Rwanda during the genocide, resorted to armed struggle as a means to retake power in Rwanda. Despite Rwanda’s armed forces and militia having launched military operations in collaboration with the Congolese army against the FDLR on numerous occasions, the Rwandan government still insists that the FDLR is a threat to Rwanda’s security. In addition, there are other Rwandan refugees who have been grouped into political parties that oppose the ruling party and agitate for a voluntary and safe return to their motherland so they can exercise political rights without any restrictions. These political parties have members in many parts of the world, including Europe, America, and Africa. The Rwandan government claims these political groups are linked to armed dissident groups in the eastern DRC, or that the groups’ members are genocidaire. There have been political tensions between Rwanda with its neighbouring countries over allegations that these states are supporting Rwanda refugee opposition figures who want to overthrow the Rwandan leadership. In 2016, the UN Security Council accused Rwanda of recruiting and training Burundian refugees with the goal of ousting Burundi’s then-President.[60] Moreover, in 2012 and again in 2022, the United Nations went to the extent of alleging Rwanda’s support for M23, an armed group that is fighting in the eastern DRC.[61] This conflict caused by the M23 has displaced and led to the death of millions of African civilians. Development partners of Rwanda, including the UK, have had to suspend and withhold their aid to Rwanda over the allegations that Rwanda supported the M23 in 2012.[62] Recently the United States has publicly called on the Rwandan government to cease supporting M23 and to remove its troops from the eastern DRC.[63] The European Union and United States have also sanctioned Rwandan military officials for backing the M23.[64] Moreover, The United States has placed Rwanda on the Child Soldiers Prevention Act List and suspended its military aid with the country due to Rwanda’s support of M23, an armed group that the United States says recruits and uses child soldiers.[65] Inter-Rwandan Dialogue: A Solution for Rwanda On 1 July 2021, the 58th anniversary of Rwanda independence, Maître Bernard Ntaganda and I announced that we had submitted to the Rwandan government a Road Map for a promising future of Rwanda.[66] The proposal was made to address the Rwandan refugee problem as well as the roots cause leading to Rwanda repeatedly being categorised as ‘not a free country’ under an authoritarian regime, where political spaces are restricted and human rights are violated. This regime has been alleged by the UN and its development partners to support armed group that have been creating instability in the east of DRC. The promise of a ‘consensual democracy’, reconciliation, and transformation of Rwanda into a middle-income state made by the RPF during the national dialogue in 1999 has not been delivered. Our suggestions argued that domestic governance reform is the single most vital aspect of setting Rwanda on the course it desires. Hence, we proposed that Rwanda hold another inter-Rwandan dialogue between the government, political opposition parties, and civil society organisations internally and externally. The purpose is for these stakeholders to agree on governance reforms that need to be adopted to ensure the political inclusion, respect for human rights and the rule of law, and guaranteeing an environment for a safe and voluntary return of all Rwandan refugees in a dignified manner to their motherland. Why dialogue? The history of Rwanda since its independence has been characterised by successive regimes that have stayed in power by any means possible. The repercussions of this have been massacres and human rights violations, culminating in the 1994 genocide and crimes against humanity. To prevent history from repeating itself, an intra Rwandan dialogue for governance reform is a necessity today. This opening of discussion and inclusivity would help create an environment that could facilitate stability and the sustainable economic development in Rwanda and Great Lakes region that would be in everyone’s shared interests. Our proposal has strong alignment with Rwandan law. Seeking solutions to country’s problem through dialogue is enshrined in the constitution of Rwanda. Moreover, it is in line with the United Nations’ strategy for peacebuilding, conflict prevention, and resolution in the Great Lakes region, adopted in December 2020.[67] This strategy promotes the use of dialogue across region to reach its objectives. The outcomes of the proposed dialogue will not only shift Rwanda towards embracing Commonwealth values, but will also contribute to consolidating peace in the African Great Lakes region. This will also enable Rwanda to be at peace with neighbouring states, efficiently integrate in the region and be part of the transparent supply chain of the region’s natural resources for the development of its citizens. Thus, instead of the UK government partnering with the Rwandan government on an asylum transfer scheme, it should support Rwanda towards resetting its governance so that it embraces Commonwealth value, enabling it finally become a free and democratic country. The UK should utilise its voice and global influence to advocate and endorse resolutions that call Rwanda’s leadership to reform its governance through the aforementioned dialogue. By doing so, the UK would have contributed towards creating secure social, economic, and political environment in Rwanda which can pave the way for fruitful long-term partnership between the two countries. Victoire Ingabire Umuhoza Victoire Ingabire Umuhoza is a Rwandan political figure who champions the establishment of genuine democracy, respect for human rights, and rule of law in Rwanda. In 2010, Victoire returned to Rwanda from exile in The Netherlands to run for presidential candidate but was arrested and sentenced to 15 years in prison by the Rwandan Supreme court in a politically motivated judicial proceeding. Her appeal to The African Court on Human and Peoples' Rights cleared her and held that Rwanda violated her rights to freedom of expression as well as to adequate defence. Victoire was released in 2018 by presidential grace after eight years of imprisonment, five of which she spent in isolated confinement. She has founded and is chairing the Development and Liberty for All (DALFA-Umurinzi) political party. Her party is yet to be registered in Rwanda. It strives for the rule of law and sustainable development that benefits every Rwandan. Since her release she has been advocating for governance reform in Rwanda through holding inclusive dialogue. [1] Home Office and The Rt Hon Priti Patel MP, ‘World first partnership to tackle global migration crisis’ (Gov.uk, 14 April 2022) accessed 13 November 2023. [2] Rwanda Government Communications, ‘Rwanda-UK Migration and Economic Development Partnership’ (Twitter, 14 April 2022) accessed 13 November 2023. [3] UNHCR, ‘Operational Update: Rwanda’ (UNHCR, August 2023) accessed 13 November 2023. [4] UNHCR, ‘Where We Work’ (UNHCR) accessed 13 November 2023. [5] Médecins Sans Frontières, ‘Imprisoned, exploited, abused: the horrifying reality for people trapped in Libya’ (MSF, 20 December 2019) accessed 13 November 2023. [6] ‘Joint Statement: Government of Rwanda, UNHCR and African Union agree to evacuate refugees out of Libya’ (UNHCR, 10 September 2019) accessed 13 November 2023. [7] UNHCR, ‘UNHCR Rwanda Factsheet: Emergency Transit Mechanism - February 2023’ (ReliefWeb, 23 March 2023) accessed 13 November 2023. [8] ibid. [9] UNHCR, ‘The Government of Rwanda, the African Union, and UNHCR agree to continue the evacuation of refugees and asylum seekers from Libya’ (UNHCR, 1 November 2021) accessed 13 November 2023. [10] UNHCR, ‘Evacuees from Libya – Emergency Transit Mechanism’ (UNHCR) accessed 13 November 2023. [11] UNHCR (n 7). [12] ‘Rwanda: the EU provides €10.3 million for life-saving refugee support measures’ (European Commission, 19 November 2019) accessed 13 November 2023. [13] ‘European Union increases support to people in need of international protection with additional grant of €22 million to UNHCR to operate the Emergency Transit Mechanism in Rwanda until 2026’ (UNHCR, 9 February 2023) accessed 13 November 2023. [14] UNHCR, ‘Emergency Transit Centre Overview’ (UNHCR, 2021) accessed 13 November 2023. [15] UNHCR, ‘UNHCR Niger Factsheet: Emergency Transit Mechanism (ETM) - November 2020’ (ReliefWeb, 5 November 2020) accessed 13 November 2023. [16] ‘Uniformed Personnel Contributing Countries by Ranking’ (UN, 31 July 2023) accessed 13 November 2023. [17] UNHCR, ‘UNHCR Analysis of the Legality and Appropriateness of the Transfer of Asylum Seekers under the UK-Rwanda arrangement’ (UNHCR, 8 June 2022) accessed 13 November 2023. [18] ‘Memorandum of Understanding between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Republic of Rwanda for the provision of an asylum partnership arrangement’ (Gov.uk, 6 April 2023) accessed 13 November 2023. [19] ibid provision 1.6. [20] ibid provision 2.2. [21] ibid provision 22.1. [22] UNHCR, ‘Rwanda: UNHCR Submission for the Universal Periodic Review - Rwanda - UPR 37th Session (2021)’ (refworld, July 2020) accessed 13 November 2023. [23] Foreign, Commonwealth & Development Office and Julian Braithwaite, ‘37th Universal Periodic Review: UK statement on Rwanda’ (Gov.uk, 25 January 2021) accessed 13 November 2023. [24] Foreign, Commonwealth & Development Office and Rita French, ‘UN Human Rights Council: Universal Periodic Review Adoption – Rwanda’ (Gov.uk, 8 July 2021) accessed 13 November 2023. [25] ‘Rwanda: A Year On, No Justice for Refugee Killings’ (Human Rights Watch, 23 February 2019) accessed 13 November 2023. [26] Kerry Jabo, ‘Congolese Refugees Tell Court Rwanda Government Is Not Revealing Real Reason For Their Prosecution’ (The Chronicles, 25 October 2019) accessed 13 November 2023. [27] International Refugee Rights Initiative, ‘“I was left with nothing”: “Voluntary” departures of asylum seekers from Israel to Rwanda and Uganda’ (refworld, September 2015) accessed 13 November 2023. [28] R (AAA) and others v. The Secretary of State for the Home Department [2023] EWCA Civ 745 [272]. [29] ibid [273]. [30] ibid [92]. [31] ibid [91]. [32] ibid [101]. [33] ibid [104]. [34] ‘Rwanda’ (Freedom House, 2023) accessed 13 November 2023. [35] ‘Democracy Index 2022’ (Economist Intelligence) accessed 13 November 2023. [36] ‘Rwanda: Setting the Scene for Elections: Two Decades of Silencing Dissent in Rwanda’ (Amnesty International, 7 July 2017) accessed 13 November 2023. [37] ‘Elections in Rwanda’ (Amnesty International, 5 September 2017) accessed 13 November 2023. [38] European Parliament, ‘Report: Ad-hoc delegation to observe the presidential election in Rwanda on Monday 25 August 2003’ (European Parliament, 5 September 2003) accessed 13 November 2023. [39] ‘Rwanda: Review Doctor’s Genocide Conviction’ (Human Rights Watch, 15 February 2008) accessed 13 November 2023. [40] United States Department of State, ‘Rwanda 2015 Human Rights Report’ accessed 13 November 2023. [41] CHRI, ‘Rwanda’s Application for Membership of the Commonwealth: Report and Recommendations of the Commonwealth Human Rights Initiative’ (Human Rights Initiative, 2009) accessed 13 November 2023. [42] ‘Rwanda: Prison Term for Opposition Leader’ (Human Rights Watch, 11 February 2011) accessed 13 November 2023. [43] ‘National Election Commission (Rwanda)’ (Hansard, 6 July 2010) accessed 13 November 2023. [44] European Parliament, ‘MOTION FOR A RESOLUTION on Rwanda: the case of Victoire Ingabire’ (European Parliament, 4 October 2016) accessed 13 November 2023. [45] ‘Dispatches: Rwanda Turns the Clock Back on Access to Justice’ (Human Rights Watch, 11 March 2016) accessed 13 November 2023. [46] ’2018 Annual Conference of the African Bar Association: Resolutions on Rwanda’ (The Rwandan, 6 September 2018) accessed 13 November 2023. [47] ‘Rwandan police arrest Paul Kagame critic Diane Rwigara’ (Al Jazeera, 24 September 2017) accessed 13 November 2023. [48] Victoire Ingabire Umuhoza, ‘Rwanda has to investigate killings of opposition members’ (Al Jazeera, 24 March 2023) accessed 13 November 2023. [49] ‘Rwanda: Crackdown on Opposition, Media Intensifies’ (Human Rights Watch, 19 October 2021) accessed 13 November 2023. [50] ‘Rwanda: Jailed Critic Denounces Torture in Prison’(Human Rights Watch, 13 June 2022) accessed 13 November 2023. [51] Victoire Ingabire Umuhoza, ‘Rwanda shows that it takes more than seats in Parliament to liberate women’ (Open Democracy, 8 March 2023) accessed 13 November 2023. [52] ‘Africa's impressive growth’ (The Economist, 6 January 2011) accessed 13 November 2023. [53] Victoire Ingabire, ‘Rwanda Vision 2020 – Development Programme Scrutiny’ (DALFA, December 2019) accessed 13 November 2023. [54] ‘Rwanda: Human Capital Index 2020’ (World Bank, October 2020) accessed 13 November 2023. [55] ‘UK–Rwanda development partnership summary, July 2023’ (Gov.uk, 17 July 2023) accessed 13 November 2023. [56] ‘African Youth Survey 2022’ (Ichikowitz Family Foundation, 2022) accessed 13 November 2023. [57] ‘2023 Index of Economic Freedom’ accessed 13 November 2023. [58] ‘DRC: Mapping human rights violations 1993-2003’ (OHCHR, August 2010) accessed 13 November 2023. [59] Amnesty International, ‘Rwanda. Protecting their rights: Rwandese refugees in the Great Lakes region’ (Amnesty International, n. d.) accessed 13 November 2023. [60] Michelle Nichols and Louis Charbonneau, ‘Exclusive: Burundi rebels say trained by Rwandan military - U.N. experts’ (Reuters, 4 February 2016) accessed 13 November 2023. [61] ‘Letter dated 26 June 2012 from the Chair of the Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security Council’ (United Nations Security Council, 27 June 2012) accessed 13 November 2023; ‘UN experts say Rwanda provided military support to M23 rebels in eastern Congo’ (France 24, 4 August 2022) accessed 13 November 2023. [62] Liz Ford, ‘UK withholds aid to Rwanda in light of Congo DRC allegations’ Guardian (London, 30 November 2012) accessed 13 November 2023. [63] Matthew Miller, ‘Press Statement: Final Report by UN Group of Experts’ (US Department of State, 19 June 2023) accessed 13 November 2023. [64] Thomas Fessy, ‘EU Sanctions Congo, Rwanda Army Officers’ (Human Rights Watch, 30 July 2023) accessed 13 November 2023; Nicole Widdersheim, ‘US Sanctions Rights Abusers in Eastern Congo’ (Human Rights Watch, 28 August 2023) accessed 13 November 2023. [65] RFI and David Thompson, ‘Enfants-soldats: les États-Unis restreignent leur coopération militaire avec le Rwanda’ (RFI, 21 September 2023) accessed 13 November 2023. [66] Victoire Ingabire Umuhoza and Maître Ntaganda Bernard, ‘Road Map for a Promising Future of Rwanda’ (DALFA, June 2021) accessed 13 November 2023. [67] ‘UN Strategy for the Great Lakes Region’ (Office of the Special Envoy for the Great Lakes) accessed 13 November 2023.

Riad al-Turk is a political opposition leader, lawyer, and human rights activist from Homs, Syria. By many Syrians he is seen as a polarizing figure; often regarded as ‘The Old Man of the Syrian Opposition’. His 50-year long battle against the Syrian regime led to his imprisonment for 18 years; much of it spent in solitary confinement. He was placed in a cell the size of a small elevator, where he was subjected to various forms of physiological abuse. At the age of 93, he continues his battle in protecting the human rights of many Syrians from the crimes of its government. This interview was conducted on 12 August 2023; prior to the recent demonstrations in Sweida, Syria. CJLPA: Good afternoon, Mr. Riad al-Turk. It is an honor to have the opportunity to interview you for The Cambridge Journal of Law, Politics, and Art. You are an inspiring figure in your work defending the human rights of all Syrians around the world for the last few decades. Much of your life has been spent fighting the Syrian regime; having never backed down after all the obstacles you have faced. You have previously stated that your career as a lawyer was a secondary practice relative to your political career. Before delving into the political aspects of the Syrian conflict we would like to have some insight on the Syrian legal and justice system. Can you tell us a bit more about the Syrian justice system at the time you were a practicing lawyer? Riad al-Turk: It is difficult to talk about a justice system in Syria. We can say that the concept of justice is absent in Syria, but that’s not what’s important. What is important is that Syrian society constantly aspires towards freedom; freedom from tyranny and from external pressures and interference, and most importantly hope is always there. In my opinion, talking about laws in Syria is not the correct approach. In Syria there are no laws that prevail, are respected, or achieve equality and justice among citizens. This is a fantasy. You are faced with a tyrannical ruling family that does not need or adhere to any laws and does not wait to derive its legitimacy from its own people, but rather from foreign institutions. A good example comes following the death of the then dictator, Hafez Al Assad. People were looking forward to getting rid of a dictator, and later found themselves facing the process of passing power to his son, Bashar Al Assad, a person who was neither legally nor politically qualified. This was done under the auspices of US Secretary of State Madeleine Albright, who came to Damascus to congratulate Assad Jr. on the smooth transfer of power, granting him international legitimacy. CJLPA: What was the trial process like? Are there any codified laws victims can point to for protection but which are simply not enforced in court, or do such laws not exist in the first place? RT: Answering this question requires reconsidering the prevailing laws at the time, which did not provide guarantees for the protection of the accused, especially when the cases raised were cases against the regime. In other words, cases that were of a political nature, or involved in a political position that included direct criticism of the regime. Their old and well-known style is that there were those who sponsored the issue of talking about justice and law, where a certain character holds the position of a public prosecutor who charges the accused, and he is tried as guilty. Justice—in reality—is not available even to the judge. This is an important issue to address. If the independent judiciary were in charge of the trial process, it would be possible to talk about justice. We do not hope for or demand justice from such a regime. It’s an opponent. This is how I look at it. CJLPA: You began your political career in 1944 by affiliating yourself with the Syrian Communist Party (Political Bureau)—which, interestingly, was opposed to the Soviet Union. Moreover, you were the Prime Secretary of the party from 1974. You have therefore experienced the political system in Syria prior and after the coup in 1963 and the Assad coup in November 1970. Since the Assad family has taken over Syria, the country has been running under conditions of a ‘state of emergency’. Can you please touch on how the coup changed the political environment for opposing parties to the Baath Party? RT: Previously, parties had an activity in the political arena. It is possible to talk about the existence of even partial exercise of some freedoms. The real question is: to what extent was this practice influential, and were there forces behind it that ensured its continuity? In 1949, Hosni al-Zaim carried out a military coup and seized power. Then came many successive military coups. This paved the way for the arrival of Hafez al-Assad as a military figure holding power through the army, which al-Assad turned into an army of minorities. Then Hafez Al Assad began to suppress freedoms, silence people, arrest his opponents, and throw them into prisons, often without trials. In any case, this is a long period of time. There have been many developments. I prefer to leave this task to historians. This would be safer, if we wanted to take a critical look at the development of political life in Syria. CJLPA: In 1980, you were arrested by the regime and held in political prisons for more than 20 years. You were put in solitary confinement for almost 18 years. Despite the various efforts used by the regime to silence you, they remained unsuccessful. We would like to begin by asking you about the environment of the cell you were placed in. To the best of your ability, how would you describe the prisons in Syria? RT: Talking about the conditions of my imprisonment is something that has been mentioned previously on more than one occasion. I was imprisoned for almost eighteen years without trial. I was placed in a solitary underground cell with no windows. We can say that it was about my height, it was the size of a small elevator. I was completely isolated from the outside world. Books and newspapers were prohibited. I was only allowed to go to the toilet three times a day, during which I used the opportunity to search in the waste for the other prisoners’ scraps of paper and newspapers, perhaps finding the remains of a thrown away newspaper, carrying with it some news, or a valuable opportunity to read. I was also isolated from other prisoners; not being allowed to mix with them. Visits were prohibited, so I had no news about my wife and two daughters. The first visit I was allowed was eleven years into my sentence. The total number of visits I received during my long imprisonment was three visits. I will not talk about physical torture as I did not go through all its types. As for psychological torture, it was about making me absent, abandoned, and forgotten, without any sense of responsibility on their part. After I fell seriously ill, my prison conditions were improved by placing a mattress on the cell floor and allowing some books to be read. CJLPA: There are various crimes and torture mechanisms that are used in Syrian prisons, most famously, Sednaya Prison; nicknamed ‘The Human Slaughterhouse’. Having experienced almost two decades in prison, what are some of the torture and interrogation methods that are used by officers within in Syrian regime? RT: The most important description that a Syrian citizen can use to describe the Syrian prisons that passed through during the era of Assad family is as human slaughterhouses that subjected citizens to the ugliest types of systematic torture and humiliation. In these prisons, hundreds of thousands of victims were hidden and tortured. Time may make it difficult to reach the truth about their fate, but our duty is to continue making calls and exerting pressure on the regime to reveal the fate of those forcibly disappeared in its prisons, and to work to prosecute those responsible for these crimes against humanity. CJLPA: When we speak about these human rights violations such as torture, do the current legal frameworks in place in Syria permit the government to conduct these horrific international crimes or is it a matter of these international crimes occurring behind closed doors? RT: Laws are usually enacted in order to protect the citizen and guarantee his rights and dignity in his country. As previously mentioned, talking about laws that are respected and implemented in Syria is a fantasy. There is no law that legislates the ruler and his agents to carry out these brutal crimes against his citizens. This is a criminal regime that must be tried, its crimes exposed, and held accountable, no matter how long it takes. CJLPA: Most people that are subjected to the punishment you faced gave up and conformed to the regime’s wishes. How did you manage to maintain your mental health throughout those years and what advice would you give to anyone who has been through what you have been through? RT: The answer to this question is thorny. In the face of the difficulties that confront us, we need a vision for life. That vision makes us people of principles. These principles determine our behavior and choices in life. They formulate our vision of the changes happening around us. From my side, and from my personal experience, the important aspect is to have an opinion. This opinion means that you are the owner of a cause and have the principled and moral position that gives a person strength. This regime is rejected and I cannot reconcile or respond to it. I cannot give in to what it asks for under any circumstances. Withstanding in the face of such pressures is possible and impossible. This may be related to the severity of these pressures. Talking about what is possible and what is not is left to time. Time decides. I resisted time by keeping my mind occupied by drawing with some pebbles, and by reading newspaper clippings over and over again. As for the body, it was exhausted. Perhaps some of the exercises I was doing helped it withstand the harsh conditions of my time in prison. CJLPA: One of the well-known atrocities that happened under Hafez Al Assad’s watch was the 1982 Hama massacre. The military force commanded by Rifaat Al Assad entered the city of Hama and conducted a series of bombings on buildings with civilian inhabitants. The government’s claimed justification for their ‘military operations’ was the need to eliminate the Muslim Brotherhood, disregarding any of the civilian casualties it took to get to that goal. This massacre could be seen as the beginning of a playbook that the Syrian government uses: blaming the bombing of opposition forces on the basis of them attacking terrorist strongholds. This strategy was also used by Bashar Al Assad in the 2011 uprisings. Can you please touch on the power of state propaganda in Syria and how they have taken advantage of religious extremism to paint themselves as the ‘good guys’ or the ‘best option in Syria’? RT: This is an illusion. They are unable to succeed in justifying their crimes against humanity. They bear responsibility for thousands of victims. Therefore, talking about the fate of these victims, seeking justice to prevail, and demanding that the fate of the disappeared be revealed is a humanitarian and legal issue that has no statute of limitations. Searching for justifications for this regime is unacceptable, and it is not permissible to give legitimacy to the killers. The regime established itself as an authority. However, it is a condemned authority and their responsibility to these crimes remains. The prosecution of their crimes will continue until justice is achieved for them and their families. CJLPA: Rifaat Al Assad, leader of the military force that committed the 1982 Hama massacre, was charged and convicted in France for ill-gotten gains. Additionally, there was a criminal investigation in Switzerland into his war crimes. Nonetheless, he still managed to escape back to Syria. Despite his dispute with Rifaat Al Assad, Bashar Al Assad opened the doors for his return to Syria without punishment. How do you feel about Bashar’s behavior in regard to his uncle? RT: Rifaat Al Assad is convicted for his crimes, and is being prosecuted humanely and legally. As for Bashar, like the proverb says they are birds of a feather. I don’t think there is a big difference between the two. They are part of this family, and they are legally responsible for the massacres committed against the Syrian people. CJLPA: Despite the death of Hafez Al Assad and his companions, why do you think it is important to share and remind young Syrians of the various crimes he committed? RT: We must not stop raising the issue of the regime’s crimes against humanity, demanding its trial, justice, and condemnation of all those who support it and assist it in its survival, whether states or individuals. CJLPA: The Syrian regime continuously used chemical weapons despite the various threats and sanctions from the international community. Now we see many Arab nations turning a blind eye to these atrocities by normalizing relations with the Syrian government. It seems that the current regime is not going to be leaving power any time soon. How do you feel about Syria’s return to the Arab League? RT: This trend to whitewash Bashar and re-legitimize this criminal regime is rejected and condemned by all standards. We must resist it by all means. International relations are governed by interests and variables. Our duty is always to continue reminding that major crimes have occurred and are occurring in Syria, for which the responsibility lies with the Assad family. CJLPA: Why do you think the 2011 revolution failed to unify? RT: The moral impact of the Syrian revolution should not be underestimated. It may not have achieved all of its goals, but its impact remains and continues. What we see these days in parts of Syria is evidence of that. This is heartwarming. As for the opposition, it was one of the parties to the revolution. Perhaps circumstances and changes made it fail to achieve its goals in confronting tyranny. CJLPA: The fight for freedom is not a new concept in the history of Syria. Figures like yourself have been fighting to get rid of the Assad family for around 60 years. Currently, there are millions of Syrians displaced worldwide. Do you believe that the next generation is capable of change, despite the presence of a large portion of the Syrian people outside Syria? RT: I believe that our people, despite the massive displacement and migration, and despite the harsh living conditions of hunger, poverty, and disease, will not remain silent over injustice. It will rise from its ashes to rebuild itself again and fulfill the hopes and aspirations of Syrians towards freedom and decent living. We are required to change the old ways, to have a serious confrontation with ourselves, and to have a vision and a voice that unites Syrians. Reviewing, hearing the opinion of others, and researching the horizon of the past that we have experienced is necessary, and thus perhaps we can draw lessons so that the next youth who will have a great task will benefit from this experience. Syria will remain ours, and we need to have a voice that unites Syrians from north to south, and from east to west. This interview was conducted by Nour Kachi, Legal Researcher of Human Rights Volume of CJLPA 3. In addition to his role at CJLPA, Nour is currently working on qualifying as a lawyer in the US and UK.

This article discusses international agreements such as the Declaration on the Elimination of Violence Against Women (DEVAW) and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), while examining efforts undertaken in certain precedents to include the specific rights of women within the international framework. The article explores the issues of identifying and punishing sexual violence when it comes to international obligations and state responsibility. It also discusses sexual violence as a human rights issue, the public-private divide in international law that affects women’s agency, and the understanding of their citizenship. Introduction The critique of international human rights law in the past decade has centred around its ‘gender myopia’ and the ‘operational ghettoization’ of the authorities who regulate such rights.[1] The critiques take the view that human rights law doesn’t see oppressive practices against women (such as domestic violence) as human rights violations because it is overly-focused on the public-private divide, ie the subversion of narratives of domestic violence as they are considered to fall in the private familial domain of society. Violence against women as a human rights issue was only formally recognised in 1993 by the international regime at the Vienna World Conference.[2] Subsequently, this recognition was instilled in DEVAW[3] and the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women.[4] Although these initiatives show progress towards realising women’s rights as human rights under international law, more recent initiatives focus on better implementation of these rights and strengthening the mechanisms that can aid women in specific instances, as can been seen in the Beijing Declaration, which mentions actions and initiatives to overcome obstacles and to achieve the full and accelerated implementation of the Beijing Platform for Action.[5] Some developments in the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), such as the reporting procedure[6] under the Women’s Convention that aims to increase the effectiveness of the Convention by monitoring its implementation, can be revamped by CEDAW. However, in my opinion, the option of opting out of the simplified procedure has the potential to maintain the status quo, instead of speedy redressal as aimed for by the organisation. There have been positive outcomes from developments such as instilling the individual complaints mechanism, however, the UDHR proposition that ‘all human beings are born free and equal in dignity and rights’[7] is still not properly realised. Several international treaties and declarations have regarded all humans to be equal, such as the UN Charter[8] and the International Covenant on Civil and Political Rights.[9] However, Professor Steven Poe’s analysis demonstrates how women in almost half of the countries are in political situations where they’re unequal compared to men—either explicitly under law, or because of a lack of resources leading to a lack of representation in government.[10] This article explores the efforts made to incorporate women’s human rights as mainstream rights while pointing out laxities in the system created by the public-private divide and stereotyping of women’s citizenship. Violence Against Women as Human Rights Abuse In writing about how the governance of women under international law is different than that of men, MacKinnon states that ‘Human rights principles are not based on the experience of women; it is not that women’s human rights have not been violated. When women are violated like men who but for sex are like them—when women’s arms and legs bleed when severed, when women are shot in pits and gassed in vans, when women’s bodies are salted away at the bottom of abandoned mines or dropped from planes into the ocean—this is not recorded as the history of atrocities to women’.[11] MacKinnon’s observations resonate with certain precedents and treaties. Rape, forced prostitution, pregnancy, and sterilisation via coercion, among others, are considered crimes against humanity under Article 7, and war crimes under Article 8 of the Rome Statute of the International Criminal Court. Also, international criminal tribunals have recognised the vulnerability of women during armed conflict.[12] There have also been attempts to understand how sexual violence goes beyond physical harm. In Prosecutor v. Jean-Paul Akayesu, the International Criminal Tribunal for Rwanda highlighted that rape meant not only a sexual invasion but the existence of coercive circumstances that might not be proven due to the absence of physical or visible harm. Hence, the judgment mentions that: ‘The Tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal’. Sexual violence falls within the scope of ‘other inhumane acts’, set forth in Article 3(i) of the Tribunal's Statute, ‘outrages upon personal dignity’, set forth in Article 4(e) of the Statute, and ‘serious bodily or mental harm’, set forth in Article 2(2)(b) of the Statute’.[13] Even ‘threats, intimidation, extortion and other forms of duress’ would fall within the ambit of coercion, and sexual violence could be considered genocide if the intent behind it is the eradication of a group.[14] Prosecutor v. Dusko Tadić[15] held that sexual violence could be considered ‘a widespread and systematic campaign of terror against a civilian population, even if rape itself was not widespread or systematic but was one of many types of crimes committed on a widespread or systematic basis’.[16] However, there also needs to be an emphasis on issues unaddressed by national criminal systems, such as protection against arbitrary detention, the realisation of economic rights, protection against racism, and ensuring sexual and reproductive health rights.[17] Even though organisations such as Amnesty International have worked on narratives around sexual violence, they have approached it through the lens of ‘torture’, bringing the focus to harm done to the physical body.[18] This narrative around sexual violence being referred as torture was furthered due to the reporting style of the 1980s, where claims of sexual violence were decontextualised for political reasons, which further enhanced the pain inflicted on survivors of sexual violence.[19] While understanding that each individual needs to be treated as equal, the context surrounding their gender and sexuality cannot be avoided as it becomes important for victims of sexual violence to get exclusive remedies. The subordination of the female subject detaches them from their identity as a citizen who deserves mental health services amongst others, not just as a remedy but as instruments of transformation. This can only occur when the state views these subjects as state actors rather than vessels or ‘rape victims in need of services.[20] This transformation must incorporate aspects of sexuality as well, where outdated ideas that equate sexual health with the absence of disease are eradicated.[21] The Private-Public Divide in International Law The linkage of women with nation and race,[22] and the inscription of sexuality within the reproductive domain, has deemed women’s bodies powerless and untrustworthy, and pathologised sexually active non-reproductive bodies.[23] Despite measures such as DEVAW, Professor Petchesky notes that work still needs to be done to shift the economic and structural paradigm to make these rights real in their essence globally.[24] This process of making rights ‘real’ is not just about legislative action, but must include provisions for recording and recognising all violations, realising positive obligations for providing resources for effective representation, and upholding state responsibility for meeting such obligations. DEVAW presents gender-based violence as discrimination against women,[25] and this conception is also seen in the Inter-American Convention.[26] Even though DEVAW states that women are entitled to all human rights protection, equal enjoyment, and freedom from inhuman treatment,[27] it does not establish the link between violence and these rights,[28] and fails to lay down violence against women as a human rights violation. However, DEVAW does address the public-private divide by disallowing state parties from invoking any ‘custom, tradition or religious consideration to avoid their obligations with respect to [the] elimination [of violence against women]’.[29] This is significant because the existence of the public-private distinction has historically given states the liberty to socio-economically and culturally oppress women.[30] However, unlike the Women’s Convention, DEVAW makes states undertake due diligence to punish acts of violence against women, and these punishments only need to be in accordance with national law.[31] This ambiguity also exists in the context of effective remedies under state obligations for victims of gender-based violence.[32] Such loopholes save these nations from serious international scrutiny of domestic laws.[33] Bodies such as CEDAW[34] and the Human Rights Council (HRC), via general comment no. 31, have spelt out that ‘States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights…’.[35] However, women subjected to sexual violence are still seen as suffering individuals in need of protection by law, rather than citizens worthy of being granted equal participation and resources.[36] These international organisations must understand that gender-based violence needs to be prevented through ex ante laws as well, by respecting their agency and not restricting them to the private domain of motherhood and sexed bodies that cannot possess socio-economic agency. Inclusion of Specific Rights The manner in which sexual harm has been reported by human rights groups has marginalised interrelated rights such as health-based protections, a safe environment for labour, and political equality for women. While there is a strong need to relay the stories of sexual harm, [37]  I believe that idealising the aspect of chastity through stereotypes and reinforcement of private boundaries furthers violence against women. Initiatives such as changes in inheritance and land-reform laws in Rwanda have helped the social fabric move beyond viewing sexual violence as something that happens to all women. These reforms helped contextualise causes and consequences, and tried to instil remedies. The Vienna World Conference aimed to inculcate women’s issues within the framework of human rights and bring these rights into the mainstream by emphasising the increasing cooperation between CEDAW and the Commission on the Status of Women.[38] Similarly, cases such as Velasquez-Rodriguez v. Honduras[39] have addressed the state’s responsibility to ensure certain rights, such as the right against the systematic practice of disappearances done by military personnel or public officials.[40] The state was held responsible even when the disappearances occurred due to non-state actors.[41] The Court noted that ‘An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to the international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention’.[42] The Court emphasised the critical nature of how the state had furthered the disappearance of the individual and not played any role by ignoring preventive measures to avoid and punish the perpetrators.[43] Hence, the judgment made the state internationally responsible if it failed to conduct its due diligence and curb systemic abuse. It is the state’s duty to protect the rights under the Convention—ensuring both the negative and positive obligations not to violate women’s rights, and prevent, investigate, and provide a remedy for violations.[44] Further, duty to prevent includes all means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal.[45] Therefore, affirmative action needs to be undertaken to change the sociocultural patterns and remove stereotypes. Conventions such as CEDAW focus on rights with respect to marriage, family planning and health care, encouraging protective legislation and inherently dealing with only heterosexual individuals. This reinforces the position of women as wives and mothers and ignores issues such as pornography, abortion, domestic violence, and the violation of rights of women that are not related to their gender.[46] The European Convention on Human Rights has created a negative obligation to not violate individual human rights and has included the state’s responsibility to ensure that human rights are enjoyed.[47] For example, in Airey v. Ireland,[48] the European Court of Human Rights stated that failure to provide financial help to a woman who required judicial separation from an abusive partner would violate her right to respect for family life.[49] This is because the negative obligation of non-interference in family life is not sufficient, in the Court’s opinion, and the positive obligations need to be upheld to preserve private family life.[50] Hence, even though the recognition of women’s specific rights is not widespread, there have been instances where the need for them has been highlighted by recognising the importance of ex ante laws and positive obligations. Similarly, in X and Y v. The Netherlands,[51] the Court imposed positive obligations on states even when it concerns matters between individuals.[52] This case concerned a mentally handicapped minor who was sexually abused. Even though the case referred this instance under the broad ambit of the right to respect for private life, as per Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and the right to respect for their private life guaranteed by Article 8, it recognised the lack of criminal sanctions punishing such instances.[53] The absence of an explicit right against such abuse and the availability of only civil sanctions does not deter such infringement and does not ensure effective protection of rights.[54] Therefore, despite attempts at enshrining sufficient sanctions for violations, the lack of clear indications of such abuse in international human rights treaties is still a deterrent to progress. Conclusion One would have to go further to see a female victim of sexual violence as a reconstituted citizen/subjective holder of rights, as compared to the distance that one would need to travel to see a reconstituted male torture victim. This distance is a metaphor for barriers that exist, not just in law but also in society. These barriers include stereotypes around gender, sexuality, ethnicity and age. Even for men, the distance travelled will be far less if the victim is not a Roma, homosexual, sex worker, felon, or the ‘right ethnicity’. However, for females, their citizenship is covered with socio-political and cultural notions around women’s livelihood, creating a strict public-private divide. Gayle Rubin argues that the disproportionate power that works on the female object in the sexual domain operates in such a way that women’s incomplete claim on citizenship, which is already weak due to racism, neo-colonialism and state conflict, is further weakened because any sexual harm is considered to be total harm.[55] This creates a lengthy distance between sexual slavery and citizenship. The state’s responsibility to prevent, investigate and punish is important, and failure to uphold positive obligations constitute a breach of state obligations.[56] The UN Centre For Social Development and Humanitarian Affairs, in their study on Violence Against Women in the Family, highlighted some of the responses to intimate violence—such as therapy, criminal sanctions, and inappropriate police response—where intimate violence is criminalised.[57] The police agencies’ view that enforcement of violence laws will affect family values,[58] and the reduction of state funding for women refuge centres, can be challenged at an international level as a failure of the state in enforcing ‘all appropriate measures’ to eradicate violence against women and adhere to their positive obligations. The extended locus standi proposed by the Women’s Convention could come in useful here; however, documenting and collecting evidence of systemic failure could be difficult for individual lawyers. Finally, implementation of women’s human rights should not be restricted to the domain of CEDAW; this expansion will only be possible when there is diversity in the composition of treaty bodies and human rights organisations, alongside reporting of systemic issues that affect women’s agency apart from sexual violence. Varda Saxena Varda Saxena is a final year law student pursuing the five-year BA LLB (Hons) programme from Jindal Global Law School, India. She is immensely interested in commercial law and has published articles on various academic platforms such as the International Company and Commercial Law Review Journal. She has also served as an Editor-in-Chief at various law-based academic blogs and loves to read about gender and decolonisation studies. [1] Elissavet Stamatopoulou, ‘Women’s Rights and the United Nations’ in Julie Peters and Andrea Wolper (eds), Women’s Rights, Human Rights: International Feminist Perspectives 36 (Routledge 1995) 36. [2] Vienna Declaration and Programme of Action, UN GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., part I, UN Doc A/CONF.157/24 (1993), reprinted in 32 I.L.M. 1661 (1993) [hereinafter Vienna Declaration]. [3] Declaration on the Elimination of Violence Against Women, adopted 23 Feb. 1994, G.A. Res. 48/104, UN GAOR, 48th Sess., Agenda Item 111, UN Doc A/Res/48/104 (1994), reprinted in 33 I.L.M. 1050 [hereinafter DEVAW]. [4] Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, ‘Convention of Belem do Par 6’, adopted 9 June 1994, OAS/Ser.L.V/ 11.92/doc.31 rev.3 (1994), reprinted in 33 I.L.M. 1534 (1994) [hereinafter Inter-American Convention]. [5] Fourth World Conference on Women: Action for Equality, Development, and Peace, Beijing Declaration and Platform for Action, UN GAOR, UN Doc A/CONF.177/20 (1995), reprinted in Report Of The Fourth World Conference On Women (1995) (recommended to the UN General Assembly by the Committee on the Status of Women on 7 October 1995) [hereinafter Beijing Declaration]. [6] Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 December 1979, G.A. Res. 34/180, UN GAOR 34th Sess., Supp. No. 46, UN Doc A/34/36 (1980) (entered into force 3 September 1981), reprinted in 19 I.L.M. 33 (1980). [7] ibid art 1. For a recent analysis, however, of the extent to which women’s human rights remain unrealized, see Stephen C Poe et al, ‘Global Patterns in the Achievement of Women’s Human Rights to Equality’ (1997) 19 Human Rights Quarterly. [8] UN CHARTER, 59 Stat. 1031, T.S. 993, art 55(c). [9] International Covenant on Civil and Political Rights, adopted 16 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976), G.A. Res. 2200 (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc A/6316 (1966). [10] Poe (n 7) 824. [11] Catherine MacKinnon, Are Women Human and Other International Dialogues (Harvard University Press 2006). MacKinnon notes that the language of the law is constructed in a way that ‘a man’ defines what ‘an individual’ is and so when it is stated that someone’s human rights are recognised to be violated, he is probably a man. Only men are permitted to be violated as individuals. Her analysis explains how a woman is ‘not yet a name for a way of being human’, therefore, their history of violations and atrocities remains unrecorded. [12] Prosecutor v. Jean-Paul Akayesu [1998] Case No. ICTR-96-4-T, ICTR, Trial Chamber; Prosecutor v. Dragoljub Kunarac, Radomor Kovac, and Zoran Vukovic, [2002] Case Nos. IT-96-23 & IT-96-23/1-A, ICTY, Appeals Chamber. [13] Akayesu (n 12) [688]. [14] ibid [731-734]. [15] Prosecutor v. Dusko Tadić [1997] Case No. IT-94-1), ICTY, Trial Chamber II. [16] ibid [646]. [17] LP Freedman et al, Millennium Development Project Task Force 4 Background Paper on Child Health and Maternal Health (2003). [18] RP Petchesky, ‘From Population Control to Reproductive Rights: Feminist Fault Lines’ (1995) 6 Reproductive Health Matters 152-161. [19] T Keenan, ‘Publicity and Indifference: Media, Surveillance, Humanitarian Intervention’ [2001] Human Rights Project. [20] ibid. [21] S. Correa and R. Petchesky, ‘Reproductive and Sexual Rights: A Feminist Perspective’ in G Sen, A Germaine, and L C. Chen (eds), Population Policies Reconsidered: Heath, Empowerment and Rights (Harvard University Press 1994). [22] LP Freedman, ‘Censorship and Manipulation of Family Planning Information: An Issue of Human Rights and Women’s Health’ in S Coliver (ed), Article 19, The Right to Know: Human Rights and Access to Reproductive Health Information (University of Pennsylvania Press 1995). [23] ibid. [24] Petchesky (n 18). [25] DEVAW (n 3). [26] Hilary Charlesworth and Christine Chinkin, ‘Violence Against Women: A Global Issue’ in Julie Stubbs (ed), Women, Male Violence and the Law (Institute of Criminology, Sydney 1994) 24. [27] DEVAW (n 3) art. 3. [28] ibid. [29] ibid art. 4. [30] Rhonda Copelon, ‘Intimate Terror: Understanding Domestic Violence as Torture’ in Rebecca J Cook, Human Rights of Women (University of Pennsylvania Press) 116. [31] DEVAW (n 3) art. 4 (c). [32] Charlesworth and Chinkin (n 26) 259. [33] Donna J Sullivan, ‘Women’s Human Rights and the 1993 World Conference on Human Rights’ (1994) 88 AM. J. INT’L L. 152. [34] General recommendation No. 19 (1992). [35] General recommendation No. 31. [36] Alice M Miller, ‘Sexuality, Violence against Women, and Human Rights: Women Make Demands and Ladies Get Protection’ (2014) 7(2) Health and Human Rights 16-47. [37] Amnesty International, Women in the Front Line (Amnesty International 1991). See also Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath (Human Rights Watch 1996). [38] Vienna Declaration, part II, para 37. [39] Velasquez Rodriguez, Case 7920, Ser. C, No. 4, Inter-Am. Ct. H.R. 35, O.A.S. Doc OEA/Ser.L/V/111.19, doc. 13 (1988). [40] ibid. [41] ibid. [42] ibid 172. [43] ibid 173. [44] ICCPR (n 9) art 2. [45] Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, Art. 2, 6, 14. [46] Sarah C Zearfoss, ‘The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable or Reactionary’ (1991) 12 MICH. J. INT’L L. 903, 916. [47] Paul Mahoney and Fredrik Sundberg, ‘The European Convention on Human Rights: A Case Study of the International Law Response to Violence’ in Kathleen E Mahoney and Paul Mahoney (eds), Human Rights in the 21st Century: A Global Challenge (Brill Publishing 1992) 361. [48] Airey v. Ireland [1979] 32 Eur. Ct. H.R. (ser. A). [49] ibid. [50] ibid [32]. [51] Case of X & Y v. The Netherlands [1985] 91 Eur. Ct. H.R. [52] ibid [23]. [53] ibid. [54] ibid. [55] Gayle Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Polities of Sexuality’ in CS Vance (ed), Pleasure and Danger: Exploring Female Sexuality (Routledge 1984) 267-319. [56] ‘Preliminary Report Submitted by the Special Rapporteur on Violence Against Women, its Causes and Consequences’ Submitted in Accordance with Commission on Human Rights Resolution 1994/45, UN ESCOR, Comm’n on Hum. Rts., 50th Sess., Agenda Item 11 (a), UN Doc E/CN.4/1995/42 (1995). [57] UN Centre For Social Development and Humanitarian Affairs, Violence Against Women in the Family, UN Doc ST/CSDHA/2, UN Sales No. E.89.1V.5 (1989) 51, 56. [58] ibid 71.

Francisco B González Centeno is an officer for the International Criminal Court (ICC) from Buenos Aries, Argentina. He holds an MSc in Sociology from the London School of Economics and Political Science (LSE). Francisco has been a central pillar in protecting the human right of access to information by expanding access to justice in the Central African Republic. He has been involved with projects with UNECSO to protect cultural heritage sites from collateral damage in areas of conflict. CJLPA: Welcome Francisco, and many thanks for interviewing with The Cambridge Journal of Law, Politics, and Art. We wanted to begin by asking you what prompted you to delve into a career in international justice? Francisco B González Centeno: My career in international justice did not start as a lawyer, as most people might assume, but as a political scientist and sociologist. In fact, law was not my favourite subject during my political science and international relations studies. However, I got interested in law as a social and political construct. I was eager to study the mechanisms on how the law shapes and impacts societies, and how it also reflects the agency of humans in terms of social and power relations. Law is the crystallisation of human relations and therefore has an impact in our daily interactions, which are regulated by it. During my sociology research at The London School of Economics and Political Science (LSE), I was particularly interested in how international criminal justice and transitional justice procedures impact reconciliation and how they address collective memory as a story-telling mechanism that could help build more peaceful contexts. CJLPA: After completing your university degree in Argentina, you went on to do your masters in LSE. How did your time in LSE shape your career trajectory? FGC: LSE offered me a unique and, most importantly, critical approach to the study of the social sciences. The LSE Department of Sociology has played a key role in establishing and developing the discipline and debate around global policies since 1904. I am proud and honoured to have been part of the Department and to have had the opportunity to receive the academic advice and guidance of top-quality thinkers, many of them leaders in the evolution of the social sciences in new intellectual areas and the study of the social problems and ethical dilemmas facing cosmopolitan but also fractured and complex societies. LSE marked my career path because of the emphasis the university had on connecting academia and the sciences to the real world and adapting disciplines to different and diverse realms and global challenges. I have applied my Sociology expertise, honed at LSE, to the areas of justice, the rule of law and law enforcement in the United Nations (UN) system. At the LSE, there is this triangle about changing the world, shaping the world, and academia. The School’s current campaign ‘#CuriousMindsAreShapingTheWorld’ reflects this spirit. I am very proud to be an active member of the LSE Alumni community and to keep contributing to the School from any front. CJLPA: In your early career, you worked as an Under-Secretary at the Chambers of the Chief Justice of Argentina, and as an external relations specialist for UNESCO in the fight against illicit trafficking in cultural goods, at the Culture Sector of the Organisation. Having worked closely with the Chief Justice of Argentina since 2008, could you please give us any insight into cases when the Supreme Court of Argentina had defended or protected the human rights of victims? FGC: In 2005, the Supreme Court of Argentina declared the ‘Full Stop’ and ‘Due Obedience’ laws unconstitutional. These laws had previously halted the prosecution of military and police personnel for human rights violations during the last dictatorship (1976-1983). This was a crucial moment that paved the way for renewed prosecutions of those allegedly involved in human rights abuses. The decisions were emblematic of a larger shift in Argentine society towards prioritising accountability and justice. The 2005 nullification of the amnesty laws by the Supreme Court of Argentina was a turning point in the country’s transitional justice process. This decision played a fundamental role in addressing impunity for the grave human rights abuses committed during the last military dictatorship. The primary grounds on which the amnesty laws were declared unconstitutional were as follows: Incompatibility with International Treaties: Argentina is a signatory to various international human rights treaties, such as the American Convention on Human Rights and the International Covenant on Civil and Political Rights. The amnesty laws were seen as incompatible with Argentina’s obligations under these treaties to investigate and punish gross human rights violations. Crimes Against Humanity: The Supreme Court recognised the acts committed during the dictatorship as crimes against humanity. Such crimes, due to their severity and impact on the international community, are not subject to amnesties, pardons, or statutes of limitations. Right to Justice: The Court argued that the amnesty laws denied victims their right to justice and truth. Every victim has the right to know the truth about violations and to an effective remedy, which the amnesty laws hindered. Judicial Independence: The laws were also criticised for infringing upon the principle of the independence of the judiciary. By preventing the judiciary from investigating and punishing certain crimes, the laws were essentially intervening in the natural functioning of the justice system. Each of the Supreme Court Justices back then brought their perspectives and interpretations to the bench. Their collective decision to overturn the amnesty laws reflected both a domestic shift in public sentiment and Argentina’s broader obligations under international law. This Supreme Court decision was important in terms of the recognition of victims and Human Rights. Many families of the disappeared and other victims had been waiting for decades for justice. The nullification meant that their pain and suffering were acknowledged and that those responsible could be held accountable. By overturning the amnesty laws, Argentina officially recognised the magnitude and severity of the crimes committed during the dictatorship. This helped ensure that these atrocities were not forgotten or minimised in historical memory. The decision underscored the state’s obligation to prosecute and punish gross human rights violations, signifying a commitment to the rule of law and to human rights principles. The decision was exemplary for the international community in terms of transitional justice. Argentina’s decision inspired and provided a legal precedent for other countries grappling with similar challenges. Countries facing transitional justice questions often look to examples from other nations, and Argentina’s nullification was seen as a bold move against impunity. The decision reignited the debate on the legitimacy and morality of amnesty laws, particularly when it concerns crimes against humanity. The nullification showed that, in some cases, the quest for national reconciliation should not come at the cost of justice. The nullification aligned Argentina with international human rights standards, particularly the notion that grave human rights abuses should not be subject to statutes of limitations or amnesties. This bolstered international human rights norms and conventions. After the 2005 nullification, hundreds of cases were reopened or initiated after the nullification; by the late 2010s, over 800 individuals had been convicted of crimes related to the dictatorship, and approximately 1,000 more were facing charges, which marked a significant acceleration in the prosecution of dictatorship-era crimes. In summary, the 2005 nullification of the amnesty laws by the Supreme Court of Argentina was not just a domestic triumph for justice and human rights but also had broader implications for the international community’s ongoing struggle against impunity and the quest for transitional justice. The decision served as a powerful testament to the resilience of victims’ families and human rights advocates in Argentina and worldwide. CJLPA: What are the biggest challenges you have faced when interacting with governing bodies in foreign jurisdictions in your early career? Working in such close proximity to the Chief Justice of Argentina, what skills did you develop that have benefited you in your current work with the ICC? FGC: There were challenges but most importantly career opportunities. At the Chambers of the Chief Justice of Argentina, I was special assistant to The Honourable Chief Justice Ricardo Lorenzetti, from whom I acquired a wealth of experience and to whom I am extremely thankful for his mentoring as an excellent manager and supervisor. I worked especially on the institutional agenda of the Presidency of the Court, including and especially with external actors, such as different Judiciaries of the world (Supreme Courts and Constitutional Courts) and other key stakeholders, International Tribunals and UN Agencies and Entities. I helped organise and coordinated with different sections of the Court; several international summits; conferences and meetings; State and Official Visits of high level senior officials (including Heads of States and International Organisations) to the seat of the Court; official trips of the Chief Justice and the Justices to different countries; and provided assistance and coordination for the signing and the execution of numerous international partnership agreements between the Supreme Court of Argentina and leading partners. This experience has been capital for me in terms of the external relations of justice, with functions that underlined the independence of the judiciary and the division of powers in a republic like Argentina. I believe it gave me the right tools to see and to show stakeholders the importance of justice and how justice can make a change and impact on people’s lives, everywhere. CJLPA: In regard to your work with UNESCO, could you provide us with some insight on the importance of the legal protection of heritage and culture for the promotion of peace and security? FGC: The legal protection of heritage and culture is not just a matter of preservation; it is deeply intertwined with promoting peace and security, both within nations and internationally. UNESCO, with its mandate to foster global collaboration in the fields of education, science, and culture, underscores the crucial role of legally protecting heritage in peacebuilding efforts. Here’s how these are connected: 1. Protecting cultural identity: Cultural heritage represents the shared histories, traditions, and values of communities. Protecting it legally ensures that these identities are respected, reducing potential sources of conflict. Recognising and protecting diverse cultural heritages can stimulate intercultural dialogue, fostering understanding and mutual respect among different communities. 2. Preventing illicit trafficking: Illicit trafficking of cultural property can be a significant source of revenue for criminal and terrorist organisations. Legal protection mechanisms, like those in the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, help stem this flow. Preventing illicit trade reduces the incentive for illegal excavations and theft, indirectly safeguarding cultural heritage. 3. Protection in times of conflict: The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its protocols highlight the importance of preserving cultural heritage during wars and armed conflicts. Such protection ensures that the cultural and historical foundations of societies are not lost amidst conflict. After conflicts, the restoration and repatriation of cultural property, made possible through legal frameworks, can be a significant step in healing and rebuilding societal bonds. 4. Fostering resilience and recovery: Culturally significant sites or practices often play central roles in community life. Their legal protection ensures that communities maintain these pillars of resilience during times of change or strife. In the aftermath of conflicts or disasters, cultural heritage can serve as a focal point for community rebuilding and recovery, both materially and psychologically. 5. Strengthening international cooperation: International legal instruments, like those crafted by UNESCO, create a framework for nations to cooperate in protecting global cultural heritage, fostering diplomatic ties, and mutual understanding. Legal frameworks facilitate the return of cultural property to its country or community of origin, mending international relations that might have been strained due to disputes over cultural heritage. 6. Preserving memory for conflict prevention: Some cultural heritage sites serve as reminders of past conflicts, atrocities, or injustices. Their protection ensures that future generations learn from history, reducing the risk of repeating past mistakes. Protected heritage sites and practices can be focal points for educating the public about the consequences of conflict, promoting a culture of peace. In essence, the legal protection of heritage and culture, as advocated and facilitated by UNESCO, serves as both a shield against potential sources of conflict and a tool for healing, understanding, and cooperation. By legally safeguarding the diverse tapestry of global cultures, nations build bridges of dialogue and understanding that are foundational for lasting peace and security. CJLPA: Could you tell us about a project that you consulted on which is particularly meaningful or interesting to you? FGC: My favourite project whilst working in UNESCO was the launch of the #Unite4Heritage campaign in South America. The #Unite4Heritage campaign was launched by UNESCO in 2015 as a response to the unprecedented attacks on cultural heritage, particularly in the Middle East. Extremist groups were deliberately targeting cultural landmarks, artefacts, and monuments, either for ideological reasons or to fund their activities through the illicit trade of looted items. The campaign was certainly very relevant in terms of law enforcement for many reasons. Regarding illicit trafficking of cultural property, cultural artefacts often end up in the black market and are sold to finance terrorist activities. Tackling this requires international law enforcement cooperation. Many cultural heritage sites are in conflict zones, making them vulnerable. Law enforcement and peacekeeping forces play an essential role in physically protecting these sites from deliberate destruction or collateral damage. The campaign underscored the need for strong legal frameworks at both the national and international levels to protect cultural heritage. Such frameworks guide law enforcement agencies in their efforts to prevent illicit activities related to cultural properties. While the impetus for the campaign emerged primarily from events in the Middle East, its principles are globally relevant, including in South America, and this is what we focused on for its launch in the subregion. South America is home to a diverse and rich cultural heritage, from ancient Incan and Mayan cities to colonial architecture and indigenous traditions. These are not just important for South Americans as they also hold value for all of humanity. The region has seen its share of threats to cultural heritage, including illegal excavations, looting of archaeological sites, environmental threats, and urbanisation pressures. The campaign #Unite4Heritage helped in raising awareness about these threats and mobilising action to counter them. South America, like other regions, is not immune to the illicit trafficking of cultural property. Strengthening legal and enforcement measures to combat this can benefit from the momentum and resources provided by global campaigns like #Unite4Heritage. South America is marked by its cultural diversity, with indigenous communities holding rich traditions and knowledge systems. Protecting and celebrating this diversity aligned with the principles of the #Unite4Heritage campaign. Engaging local communities in the protection of their cultural heritage was also crucial. The campaign’s principles helped in fostering a sense of ownership and pride among South American communities, ensuring that heritage protection became a grassroots effort. The launch of the #Unite4Heritage campaign in South America was took place during the opening of the art intervention #PalmyraAtVillaOcampo, at the only UNESCO owned property in the world, Villa Ocampo, in Buenos Aires, Argentina. Like the Bamiyan Buddhas before, the city of Palmyra in Syria had become a symbol for the vulnerability of cultural heritage, a memorial for cultural loss and a warning for us and future generations that cultural heritage should not be taken for granted and could be lost at any time. This led to Syria and especially Palmyra being chosen as representative examples to illustrate the campaign. The whole property in Buenos Aires was artistically explored by music and plastic artists who brought Palmyra into the property. The objective was to raise awareness, amongst government authorities, civil society, and especially young people, of the importance of heritage protection and cultural diversity and to stop extremist attacks on the cultural heritage of humanity. These concrete actions for Latin America aimed to promote the role of culture as a factor of tolerance and dialogue between peoples and to counter violent extremism in all its manifestations. In essence, whilst the immediate concerns that led to the creation of the #Unite4Heritage campaign were centred in the Middle East, its objectives and principles had a universal relevance. South America, with its intricate tapestry of cultural histories and present-day challenges, stood to benefit immensely from the awareness, resources, and collaborations fostered by such a campaign, and it was an honour for me to work on the design of local initiatives framed into that campaign. CJLPA: Your work in the Central African Republic is directed at providing access to justice through access to information. Could you please highlight, through your observations, the challenges that are faced by affected communities in accessing necessary means of justice and why it is important to provide information to the general public of the works of the Court? (Figures 1-4 show a pop-up installation in Bangui, CAR, displaying images from the ICC’s courtroom in The Hague, more information at https://www.icc-cpi.int/about/outreach/activities/activity/pop-installation-bangui-attracts-passers. Figures 5-8 show billboards announcing the trial opening in the Mahamat Said Abdel Kani case visible in Bossangoa, Berbérati, Mbaïki and Bria, more information at https://www.icc-cpi.int/about/outreach/activities/activity/billboards-way-announce-start-trial.) FGC: The Central African Republic (CAR) has faced complex political, social, and humanitarian challenges for many years, including military coups, political instability, and prolonged armed conflicts. These complexities have unfortunately had a significant impact on access to justice for its population, making it a major challenge. Many citizens, due to the lack of means to access information, might be unaware of their legal rights or the processes involved in seeking justice. This is why I regard my work at the International Criminal Court (ICC) as relevant. There is a need for greater public information and outreach tools which can help justice, especially international criminal justice, be more accessible. Access to information is a human right and a tool to access justice. When we speak about affected communities in the ICC Cases in CAR, we include both victims’ communities and the suspects’ communities. Both have the right to have access to information and therefore justice; bearing in mind the important concepts and principles of a fair trial and the presumption of innocence, but never forgetting the relevance of the victims’ voices during the proceedings. CJLPA: In what ways does the ICC work towards making justice more accessible and easier to understand in the affected communities in CAR? FGC: In the Central African Republic, public information and outreach focuses on access to justice through access to information, on meeting affected communities, on peace and reconciliation. The work of the Court is made public especially through screenings, urban intervention campaigns, and pop-up installations. A number of outreach activities were conducted since 2019, when I joined the Court, including ones in relation to the arrest and first appearance of Mr Maxime Jeoffroy Eli Mokom Gawaka; the confirmation of charges against Mr Mahamat Saïd Abdel Kani; the issuance of the public redacted version of the warrant of arrest for Mr Mahamat Nouradine Adam; and progress in the trial of Alfred Yekatom and Patrice-Edouard Ngaïssona. The Court’s country office featured a live broadcast of the hearings on the confirmation of charges against Mr Saïd on TV Centrafrique, a radio station providing national coverage, and a live streaming activity took place in the 4ème Arrondissement of Bangui, an area of interest in terms of victim communities. Something similar is being done for the hearings of the confirmation of charges of Mr Maxime Jeoffroy Eli Mokom Gawaka, in an area of Bangui, the capital city of CAR, where both parts of the affected communities (victims’ and suspect’s communities) will be present to follow the retransmission of this judicial instance. The country office continues with its urban intervention campaign (involving the use of roadside billboards to announce key judicial phases and reinforcing justice-related principles), the series of pop-up installations in key symbolic locations in Bangui showing proceedings-related videos followed by a Q&A session, and #LeGrandDébatSurLaJustice (a radio-based justice dialogue to address concerns and questions about the ICC). Public information and outreach activities are conducted in the hinterland, in areas of interest in terms of affected communities in the ICC Cases, such as Bria, the birthplace and place of arrest of the one of the accused persons, Mr Saïd; Birao, the place of arrest of Mr Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’), a suspect in the Sudan situation; Mbaïki, one of the accused persons’ area of influence (Mr Yekatom); Boda; Carnot; Bouar; Yaloké; Bossangoa, the birthplace of two suspects (Mr Yekatom and Mr Mokom); and Berbérati. CJLPA: Can you highlight the importance of publicly broadcasted court proceedings and access to information on what happens at the ICC Courtroom in The Hague? FGC: Access to information in CAR is also connected to other two key elements: reconciliation and deterrence. For victims and affected communities, understanding how international criminal justice works and accessing its mechanisms, when possible, seeing perpetrators held accountable can be cathartic and can aid in healing and reconciliation. It is essential to note, however, that whilst the ICC can contribute to reconciliation, it cannot guarantee it. Reconciliation is a complex, long-term process that requires multifaceted approaches beyond just legal measures. In terms of deterrence, public information about international criminal justice at work can deter individuals from committing international crimes. Knowledge on the ICC in general contributes to the establishment of a global norm against impunity. Over time, this normative shift can lead to systemic changes in attitudes towards grave crimes. CJLPA: Could you please provide some insight on the ICC’s urban intervention campaign in the CAR? FGC: This is a twofold access to information and justice campaign. It consists of the installation and display of informative billboards in Bangui and in locations of interest in terms of affected communities, and the spontaneous set-up of pop-up installations with a big screen in the streets of Bangui that invite all passersby to follow trial summaries and to participate in quizzes about the Court. The latter is an open justice and a democratic public information and outreach tool, which is different from traditional outreach activities where key personalities or influencers are invited. Billboards are placed in Bangui and in different cities in the hinterland in the Central African Republic, announcing key judicial instances in the ICC Cases, and also concepts and principles about international criminal justice, amongst them, the presumption of innocence and the importance of a fair trial, the relevance of the voice of victims, etc. This way, information is clearly visible for affected communities throughout the Central African Republic. During the pop-up installations in the streets of Bangui, a big screen is mounted in different key neighbourhoods, attracting more than 200 people, who stop by to watch animations and videos portraying the work of the Court. One after the other, videos in Sango and French point to the latest developments in the ICC Cases in CAR: Yekatom and Ngaïssona, Saïd and Mokom. After the screening, the ICC team invites the audience to participate in a quiz about the Court. CJLPA: What advice would you like to give to anyone trying to get into a career in international justice? FGC: One certainly does not need to be a lawyer, but rather to have a vocation to understand the causes of things, which is the motto of my alma mater, the LSE. To understand how and why justice and law are important as social constructions and how they affect and impact social relations, including peacebuilding and reconciliation. This is the passion I find in justice and all its implications and connections, including the rule of law and law enforcement. I would also suggest developing a specific profile and specialising in a concrete area, but most importantly in something that can make one be proud of shaping the world towards a better one. This interview was conducted by Nour Kachi, Legal Researcher for 'CJLPA: The Human Agenda'. In addition to his role at CJLPA, Nour is currently working on qualifying as a lawyer in the US and UK.

Helena Wray is a professor of migration law at the University of Exeter. Her extensive experience in this area spans several publications, including two books (Article 8 ECHR, Family Reunification and the UK’s Supreme Court: Family Matters? in 2023 and Regulation of Marriage Migration into the UK: A Stranger in the Home in 2011), working as specialist advisor to the House of Lords Committee on Justice and Home Affairs during its inquiry into family migration, and providing expert evidence for landmark cases in the Supreme Court. This interview was conducted in November 2023, prior to the UK government’s announcement that it would be increasing the minimum income requirement for spouses and partners from £18,600 pa to £29,000 and then to £38,700. CJLPA: Welcome, Helena Wray, from The Cambridge Journal of Law, Politics and Art. We are pleased to have you here today to discuss the legal and political issues surrounding migration in the UK. Firstly, a little bit of a background: what problems arise in the regulation of immigration? Helena Wray: I think the biggest single problem is that immigration is such a highly politicized area that politicians feel compelled to make sometimes unsustainable promises. And it then turns out that these are things that can’t be done, or can only be done at huge costs, or only can be done with massive trade-offs. So, you tend to get a legal regime that’s often quite confusing, very changeable, sometimes quite inhumane, with limited accountability. And there are lots of people who are disadvantaged by this—employers trying to get workers in, for example—but the people who suffer most from it are the migrants themselves and their families. So, refugees, people seeking asylum, people wanting to come to the UK to join their loved ones, all of those people can find it very, very difficult to challenge those laws. Because, in essence, the government claims that it has, or would argue that it has, a mandate to do pretty much what it likes. And the law gives it very wide powers. Of course, migrants, generally speaking, don’t have votes. And so, if you’ve got two constituencies to please, you’re going to please the one that you think will vote for you. CJLPA: Of course. And following from that, do you believe that the UK is actually facing a migration crisis as portrayed by the Home Office? Or do you think that’s a politicized view of it? HW: The term crisis is always a construction. Events happen, and people respond to them. And one of the ways that you can respond to them is by saying it is a crisis and it requires emergency measures. Do I think quite a lot of people want to come to the UK? The answer is yes. Clearly, there are people, many people want to come to the UK. Why do they want to come to the UK? Often for very good reasons: work, family, study, to join loved ones, to flee persecution, warfare, civil war, environmental degradation, all sorts of things. Now, that can be interpreted as a normal event, something that is inevitably going to be going to happen in the world that we live in. Or you can construct it as a crisis that not just to be managed, but to be prevented, justifying all sorts of other measures. So, I think, there are lots of people who want to come. Whether or not it’s a crisis is very much in the eye of the beholder. But what I think is clear is that attempts to prevent this tend to just make things worse and force the movement onto other places. So, we have a small boats crisis—I would say that is a crisis in my view, because people are risking their lives in horrible conditions to try to cross to the UK, at great risk to themselves. So, it’s clearly a really awful state of affairs. But you have to look back and say well, those people were people who in the past would have perhaps tried to come in lorries, before the route via lorries was blocked so comprehensively, or in the Eurostar, before all the fences were put up at Calais, and then even better for them, they would have come in, perhaps on a flight because they didn’t need a visa. If you go back historically, back to the turn of the 20th century, there were no real immigration controls at all, only 120 years ago. So, I think the reality is that people will want to move including into and out of the UK—whether or not that is a crisis depends upon how you view it. CJLPA: What are the main barriers faced by families wishing to migrate to or wishing to reunite through migration to the UK? HW: Well, the UK has one of the strictest family migration regimes in the world. In fact, there’s an index called the MIPEX (Migrant Integration Policy Index) which it looks at a large number of countries, including countries outside Europe, and rates the accessibility of their family migration policies, and the UK is second from bottom. The only other country beneath it is Denmark, which has a notoriously strict family migration regime. So, the regime that people face is much stricter than it is in other countries, and it’s pretty strict in other countries. There are quite a lot of countries which have quite difficult regimes, but the UK is particularly difficult. It’s difficult in a number of ways. It’s very difficult to come in as a family member, unless you are a spouse, or a partner, or a minor child—a child under 18—and both your parents are in the UK. That’s a really important qualification, you can’t just come in to join one parent if you’ve got another parent somewhere else. Outside of that group: elderly relatives, dependent siblings, adult children—it’s extremely difficult to enter. The rules are very strict, almost impossibly strict. So, the criteria themselves, the groups or the categories of family member who can enter are very narrow. Then even for those people who fall within that one of those categories, the rules are very demanding, particularly for spouses and partners. They require you to earn a minimum income, which many people do not meet, and this has to be met in very particular way. So, you have to earn it for at least six months, and you have to have the evidence to show that in numerous ways. And that’s just the beginning; there are lots and lots of other conditions you have to meet. You have to show your accommodation, and you have to get lots of documents ready. So, it’s a very complex system in that respect. And in addition, it is extremely expensive. Visa fees cost thousands and thousands of pounds. You’re not talking small amounts at any stage, because just the initial application plus what’s called the ‘immigration health surcharge’, and then after all the additional costs, translation costs, perhaps getting a medical certificate, you’re talking about several thousand pounds just to make the application. And then that has to be renewed after two and a half years, and then renewed again, after a further two and a half years, some]times you have to keep renewing that for up to 10 years or even longer. So, all the time you’re having to find thousands of pounds to support your visa fees. The whole route is complex, it’s expensive, it’s difficult to access. It really is not a family friendly route. CJLPA: It doesn’t sound like it. And, talking a little bit more about how only spouses or partners or minor children can relocate to reunite with family, how has a narrow or perhaps outdated view of what family actually means caused problems for families or family members migrating to the UK? HW: The question is about those who tend to be called ‘adult dependent relatives’. That’s the category in the immigration laws, and that could be your elderly parents or grandparents, but it could also be, for example, a sibling who is in distress and who needs support, or even your adult child. If you are in the UK, and you have responsibility for—and you’re very anxious about—one of those relatives, that’s going to make your life here very difficult, very complicated. You may have to spend thousands of pounds flying out to see them, you may have to make decisions about what sort of work you can do, you will be constantly preoccupied with trying to ensure that they’re looked after properly, you may feel extremely guilty that you can’t care for your family member. You’re torn between your family life here and then maybe children that you need to look after, and your elderly parents in another country, who also need care. It causes immense amounts of distress and anxiety. Some people who have options actually decide to go and live somewhere else that has got a more friendly regime, particularly NHS workers who go to other countries because that country will allow them to bring in an elderly parent, for example. From the point of view of the migrant who wants to come in—the family member who wants to come in—the level of dependency or some vulnerability needed before they’re even considered eligible for a visa is extremely high. So, you’re talking about sort of people who are almost sometimes too ill to travel before they can actually qualify. It’s not absolutely at that level, it is sometimes possible to get people in, but it is extremely difficult. And I’ve seen two lots of problems with it. Number one: it really is discriminatory, because the people who’ve got family members abroad are generally people who are themselves of migrant descent. You wouldn’t have an elderly parent or, in most cases, a sibling or an adult child who lives abroad who can’t join you unless you yourself are of migrant origin. So it discriminates, it creates a class of people who can’t have the same sort of family life that the rest of us can look forward to having. The other problem is that it takes a really functional and instrumental attitude towards what family is. So, for example, one of the arguments will be: ‘well, you’re paying for care for this elderly person, or you can pay for care for this elderly person, in a home somewhere in another country. So why do you need to bring them in?’. Well, that’s not what family life is about. Family life is about caring for people who you want to have with you, about that type of love and affection and reciprocity, and these aren’t recognized at all. And I think another aspect of this—which perhaps is really not discussed enough, and of which I think some people who work in migration are also a little bit guilty, because we want to make the most compelling moral case that we can—is that it’s not just about extreme vulnerability and extreme dependency, it’s about the quality of family life. So, you could bring in a parent who is maybe in their 70s, or late 60s or whatever, and they won’t be economically active, but they will be a very vital part of their grandchild’s life, they will really enrich family life, they can offer advice, they can offer support, there are all sorts of ways in which family life is enriched by having other relatives live with you. And those sorts of considerations just do not enter into the way that the rules are set up. CJLPA: That’s really, really interesting. And how does the accessibility or on affordability of good quality legal advice affect migration? HW: It’s a major issue in this country. We have some absolutely brilliant immigration lawyers. And I know many, many immigration lawyers who work extremely hard for their clients and are extremely well informed. There are also some advisors—immigration is a regulated area, you cannot offer immigration legal advice unless you’re either a solicitor or a barrister, or you are approved by something called the Office of the Immigration Services Commissioner, which makes you take exams and checks your knowledge—but even so the quality of advice is quite variable sometimes. And people cannot always access the best advice. The rules are incredibly complex and, frankly, impenetrable. I know there was a simplification exercise going on that we might hope to get round to the family migration rules at some point. But at the moment, if I said to you, please go away and read appendix FM—which is the bit of the immigration rules that deals with most family applications—you would just be lost within a couple of minutes. They are extremely difficult to read, to follow, you have to read them in conjunction with other parts of the immigration rules, you have to look at the guidance, you have to cross check between different sections, you really need to know your stuff. You might, if you’re good and pretty capable, be able to do your own straightforward managed visa application—but if you want to bring in an elderly relative, or there is some complexity about your case, you really need legal advice. And legal aid is not available in immigration cases. You can sometimes get what’s called exceptional case funding in human rights cases, but that is really complicated to get because you have to make a separate application first for which the lawyer is not paid. And then once that is granted, then you have to find a lawyer who will take your case. And the problem with that is that the number of lawyers doing legal aid has really plummeted, because it’s just not well paid enough, people can’t make a living doing it. And we’re not talking about making a really fantastic living and living in luxury, but making a basic salary that somebody who’s undergone years of higher education and training should be able to earn, nothing spectacular. So, there are real problems there in what’s called a desert in terms of legal advice, especially in certain areas of the country. Now, with technology and so on it is easier to instruct a lawyer in a different part of the country and have Zoom meetings, for example. So, it’s not that necessary to always have to have someone local. But it’s just generally that there isn’t enough good quality advice, unless you’ve got the money to really pay for it. CJLPA: And that money is obviously on top of the visa application costs and the income requirements needed anyway. You did touch a little bit on income requirements and how they create problems. But can you talk a little bit more about that? And also about whether the income requirements actually fulfil the intended purpose set out by the home office? HW: So, the minimum income requirement, or the ‘MIR’, as it’s called, is probably the most controversial bit of the immigration rules for spouses and partners. Just to give you a bit of history, it was introduced in 2012. Before that, there was a much more general test, which was called adequate maintenance. Basically, what that meant was that you had to show that if your partner came into this country, that together you could keep yourselves at a level above income support level, benefits level. So, above a minimum standard, which is reasonable, because you don’t want families falling into destitution and poverty as a result of this. It was a basic check ensuring that families are self-sufficient. In 2012, the government introduced the MIR, at a level of £18,600 a year. Now, at that time, that was actually very high; around half the people of working age could not meet it. So, that excluded large numbers of people. And it excluded large numbers of people in quite a discriminatory way: for example, typically women with caring responsibilities, people who live in poorer regions, where wages are lower, people who have other caring responsibilities, and also people who are studying, people who are undergoing training, people who are in low paid professions doing really vital but low paid work, like care work. They could all very easily earn below £18,600. So, it’s been extremely problematic for many years. And it’s been very controversial and there’s been a lot of criticism of it. And those criticisms do continue because they remain valid. I think the way in which the MIR now operates is slightly different, because obviously wages have gone up in the interim. So, if you have a full-time job—40 hours, 36 hours a week, something that equates with a full-time job, at the minimum wage—you will meet the MIR. But the problem is that many people work on variable hours contracts, zero hours contracts, casual employment, people are self-employed, and they don’t necessarily get the minimum wage from their self-employment. And in addition, you can’t just meet the MIR at the moment that you make the application, you have to have met it for a minimum of six months before. So, it’s comparatively low, it’s just complicated to meet. The other thing is that it puts all the onus on the sponsor. Say your partner is outside the UK. You, the sponsor, at the moment of admission, the moment that you make the application for them to come in, must earn this amount. But what if your partner is a merchant banker, and you’re a student? You’re not necessarily going to have the money, but there’s no doubt that they’re going to make the money. There are some ways around this. You can sometimes meet it by very large amounts of capital—but we’re talking about pretty substantial amounts, over £60,000, if you haven’t got an income at all—and there are some exemptions for people who have disability related benefits and carers allowance and things like that. So there is some flexibility, but not much. It has proved extremely problematic for lots of people. And there have been many reports of people being separated, including children who’ve been separated from a parent. It was estimated in 2015 that are about 15,000 children who were affected in this way. Does it meet its purposes? There’s no evidence to suggest that it does. The idea behind it was to avoid families claiming welfare benefits. Now, to begin with, when you come into this country, and you’re in what’s called your probationary period, which is at least five years, you are ineligible for public funds anyway. So, it’s not as if you’re going to go off and start claiming housing benefit. But also, it’s just not a realistic assessment of the position of the family after they’ve come in. Because the other party will be earning money, almost certainly, it’s not that difficult to find some sort of work. If you’ve got a sponsor who’s earning, say, £15,000, for a low-paid job, or a part-time job, they don’t meet the MIR. But what are the chances that their partner, when they want to come in, will be able to earn £3,600 a year in order to make them up to £18,600? It’s just not a realistic assessment of the family’s position. It pushes people onto benefits. There have been quite a lot of reports of sponsors who have children with their partner abroad. And I think one of the things that the government didn’t take into account is that if people want a family, they will have a family. They’re not going to wait for the government to approve them and let them in, so you get the situation where people have had babies and children—they’ve often had to give birth on their own, because the partner can’t come in—and then they are a single parent. And of course, it’s much more difficult for single parents to work. So, then they end up actually claiming benefits. And the government’s own assessment—and this is what’s really interesting—the government did an impact assessment of the fiscal benefits, and it made this claim that there were going to be lots of fiscal benefits, which would save the country loads of money. But when you looked into it, it wasn’t going to save any money at all. And they did it by forms of double counting of various things—it was quite manipulative. In fact, claims for welfare would increase after the MIR came into force, because of the numbers of parents who were left on their own. So, there is no evidence to show that it has it has reduced welfare reliance. And although the evidence is a little bit speculative and anecdotal, -I can’t say that it’s been done, there is no systematic data on this - it seems it’s likely to increase it. CJLPA: That’s really interesting, that it actually may have done the exact opposite of what the Home Office wanted to do. How do the costs with the of the visa application itself create burdens? Do you think it’s ethical or right for the Home Office to actually profit from visa applications? HW: Well, the visa fees have just been put up by further 20%, in October. So, they’re now just astronomical, really, really, really high. A further point on the MIR: the £18,600 is for a spouse, but if you want to bring in a child who’s not a British citizen, it is higher than that. So, if you married somebody from abroad, and they had two children whom they wanted to bring them with them—your stepchildren—and they were even able to come in under the immigration rules, perhaps because the other parent had died, even so you’d have to earn more than £18,600 to sponsor them. So, it is all extremely difficult. And the reason I say that is, I’m starting to think about families living in the UK, where they have to make renewal fees. And those fees for say, a spouse and two children are not just paid at the beginning, but then paid again after two and a half years, and people just can’t afford it, or they have to make really difficult choices. Do I save up for the visa fee? Or do I turn on the heating, or do I feed my child? All sorts of very, very difficult choices. So what you get, actually—and this is increasingly being reported—is that families, people who are here regularly with a visa, with leave to remain become irregular, lose their leave to remain, become counted as amongst the illegal migrants—not a term I want to use, but how they are often described in media—because they can’t afford the visa fee. Or you get people having to make the invidious choice: I’ve got two children, do I pay the fee for one or for the other, which one gets the visa, which one gets a path for citizenship, and which one becomes undocumented? So, the visa fees are extremely problematic. Do I think it’s ethical? No. The idea behind these very high visa fees is that is that they pay for the overall costs of the immigration system. But these people are not responsible for the overall cost of the immigration system. If you’re living in or you’re applying to come to the UK perfectly legally, you’re doing everything right, or you’re trying to renew your visa—and again, you want to make sure that you don’t become irregular—why should you have to pay for the removal from the UK of somebody who hasn’t, who has overstayed their visa? It’s a service, if this country has decided that we need these very strict immigration controls, it shouldn’t be the users of the service, who have no choice but to use the service, if they want to come in, who pay. CJLPA: How do inconsistencies emerge within the UK migration system, and how does that discriminate against or disadvantage some families? HW: So, the UK does have obligations—under international law—to recognise people who are refugees under the Refugee Convention, but it is trying to distance itself from those obligations. One of the ways it’s doing this is by creating these bespoke routes for certain favoured groups. I do think, of course, that we should be helping Ukrainians and their families to reach safety. And, we have a responsibility—they are our neighbours—but we also have responsibility to many other people. What about Afghans? What about people from Syria, or Iraq? And now, of course, we’ve got the terrible situation in Gaza, as well. All of those are people who want to reach safety. And in many cases, particularly in Afghanistan, where the UK has been very involved in their threats, as a result of its foreign policy, you can argue that we have a strong moral responsibility towards those people. What you tend to find is that the government will use what they call the ‘safe and legal routes’ in order to justify trying to deter people from coming in other ways to seek safety. But when you look at what those safe and legal routes are, they really don’t exist beyond the Ukraine scheme, and also beyond another scheme that was for Hong Kong nationals again as a historic link. Again, it’s not that I’m against that scheme, but I think we should be looking at what more widely are our responsibilities. There is a problem that some people seem to be more deserving than others, and it feels very discriminatory. CJLPA: On a similar line, do you think that the requirements for competency in the English language for migrants joining their spouses or partners create additional burdens, and perhaps discriminate as well? HW: First of all, obviously, if you’re going to live in the UK being able to speak English is going to be very important. So, it’s not that people shouldn’t be learning English if they’re going to live here. The problem with the pre-entry test—it’s quite clever the way it’s done because it’s very low level, it’s A1 speaking and listening—but it’s the ability to learn English before you come here. It really, really differs depending upon where you are, who you are, your level of education, and so on. So, it might not be that difficult, if you’re living in a large city such as Beijing, or São Paulo, to go and find a language school and to take a test and get some language skills. But if you’re living in a rural village 500 miles from anywhere with perhaps very intermittent Internet, and lots of other problems—such as if you’re not literate—even speaking, getting access to the tuition is going to be difficult, and travelling to take the test is going to be difficult, and you are expected to take the test. It’s a test that many people fulfil very easily, but I don’t think it’s recognised that it is more difficult for some people. The government say, ‘you can’t come in, because you haven’t met the English test’—but then, how are you going to learn English? If you can’t learn it, you can’t learn it. Whereas if migrants were allowed in, they could enrol in—I know, there is a shortage of local classes—but, there’s a possibility of learning English at a local college in the UK. And you perhaps you can have some sort of expectation that people will go along with that and make an effort. The other thing that I find quite disturbing is that there are exemptions, but those exemptions are quite elitist in character. So, one exemption is that if you have a degree taught in English—fair enough, obviously, if you’ve got a degree taught in English, you presumably meet the test. But if you’ve got another qualification in English below degree level, you’re also going to be above A1 speaking and listening. For example, if you’ve got an equivalent of a baccalaureate or an A Level in English, that’s going to show that you have some ability. The other thing that I think is more disturbing is that there are exemptions for what they call majority English-speaking countries, and those are countries for whom English is the national language. So, as you’d expect, US, Australia, New Zealand, and so on, but no African countries. Now, many African countries have English as the main language of communication, as one official language, because there are many, often local languages. And it’s unlikely that there will be many people who don’t speak any English at all. There is this risk, because not everybody who lives in Ghana or Nigeria will have learnt spoken English at primary school, been to primary school and learned English. But let’s take the example of Canada, which is exempt. If you go to French speaking Canada—to Quebec—everything is in French. You can naturalise in Canada without speaking English, because you can choose French as your language, you can go to University in Montreal or Quebec City and never have a course in English. I have myself taught master’s students from Canada, and I’ve had to send them off to the language centre because their English is just not good enough. So, it is quite suspicious to me that Canada is okay but Ghana or Nigeria isn’t. CJLPA: Definitely. That’s really interesting, I didn’t know that. Talking a bit more about children, do you think that children’s interests are prioritised in immigration cases as much as they should be? And what issues and dangers particularly surround children in the context of migration? HW: There are a lot of problems with children. There’s an obligation in international law under the Convention on the Rights of the Child to treat children’s interests as a primary consideration in any decision that concerns them, and that duty has been more or less implemented into British law through Section 55 of the Border Citizenship and Immigration Act, after the UK withdrew its reservation on immigration and nationality matters. So, the UK Government does have an obligation to treat children’s interests as a primary consideration in immigration decisions that concern them. And incidentally, that seems to be part of the European Court of Human Rights, Article 8, family life jurisprudence as well. Now, saying that a child’s interests are a primary consideration doesn’t make them the paramount consideration. There is a distinction. So other factors can outweigh them. It’s still a relative standard. There have been a number of Supreme Court cases on this. Essentially, what the court has said on that —really quite strongly— is yes, they are a primary consideration, but they can be outweighed by an accumulation of other factors. But no single factor is more important than children’s best interests. And the Supreme Court has also said that nationality, the interests of a child in growing up in their country of nationality, is part of their best interests. So, when you have a British child, it is in their best interest to grow up in the UK and to be part of British society. So, there is—in theory—quite a strong obligation. And I would say that has had some impact. There are some more provisions, both in statute and in the immigration rules, that say, for example, that where a child is a British citizen or has lived in the UK for seven years, a parent should not normally be removed if it’s not reasonable for the child to follow them. So that does help some families and it is now easier for some families to stay together. But although that is a right that exists in law, I think it can be quite difficult to make that work for you—there are these provisions, but then the guidance may take quite a narrow view. And you would need a lawyer, or somebody really experienced in those sorts of arguments to say, look, the way you’re interpreting this, these obligations are just not strong enough, it doesn’t comply with the government’s legal obligations. It still can be considered reasonable to expect a British child to leave their home and go to live with in another country. What does that mean? What is reasonable? How much disruption are they expected to have? I would say that there is more protection now for British citizen children, in terms of not having a parent refused admission, or being forced to go abroad and splitting up the family in that way, provided they have the resources and the resilience and so on to argue that and put the case in the proper way. But where you have children who are not British citizens, and who are living in the UK, it’s a much less favourable picture. And we do have lots of children living in very uncertain immigration conditions. There are, I think, possibly around 100,000 children who have been born into the UK but don’t have British citizenship, because you no longer get British citizenship just by virtue of being born in the UK, you have to have a parent who’s got settled immigration status or citizenship. That can be very uncertain itself. For example, we’ve had the Windrush scandal and uncertainties around what people’s status is. So, you can get these families where they don’t really know what their status is. And it can be extremely difficult to prove it. They might have a right to register the child as a British citizen, but that’s a very expensive application, it costs more than £1000. And again, you have to be aware that that opportunity is there. And then, you’re going to get families where perhaps the parents came with a child at a very young age, and they’re living perhaps without leave here. That’s not the child’s fault. That’s not a decision the child made. But it means that child is growing up in very precarious, very marginalised circumstances, with no recourse to public funds. It means that the family can’t get supported in the way that other families might get supported. And they do live a really precarious and difficult life. So, I’d say that there is a lot more we could do to protect children’s interests in, in immigration, and also in nationality law as well. CJLPA: How do the UK’s migration policies interact with human rights, particularly of course the right to family and private life, but even the right to life itself? HW: Obviously, as you probably know, under the Human Rights Act, convention rights have been brought into British law, and they are binding on decision makers, and on courts and tribunals. So, if you take the right to life, first of all, you would think that it’s really strong, right? It’s the most basic right of all, to stay alive. The problem is that it sort of doesn’t really operate. The threshold for showing your right to life is going to be threatened by for example, being sent to another country is really very high. And in fact, in those circumstances, you’re much more likely to rely on Article 3, which is right to protection from the prohibition on degrading and inhuman treatment and torture. Article 3 has been very, very important in immigration because where people, for whatever reason, can’t fall within the Refugee Convention—and that has its own criteria that that do exclude quite a few people—but under Article 3, where there’s a reasonable likelihood that you will suffer inhuman or degrading treatment or torture, if you’re sent back to your country, then you cannot be sent back home. And you have to get some form of humanitarian protection or other type of leave. And that has operated to protect quite a lot of people, for example, fleeing civil wars, and so on. So that has been very important. Human rights have also been important occasionally in looking after the interests of people who are already here. So, there was an important case around Article 3, when the government tried to remove any form of subsistence from asylum seekers, and they were all becoming destitute, and sort of just living on the street. And that was found to be a breach of Article 3, because they’re asylum seekers, they can’t then go anywhere to go until their claim is decided. When it comes to Article 8, that’s the right to protection for family life. And that is a key one for families. The problem is that Article 8 is a qualified right. So, on the one hand, you have the right to protection of your family life. On the other hand, if it is proportionate, if there is a public interest or it is for the public good that you should be removed or refused admission, then that can outweigh your family life claim. So, the extent to which Article 8 can inhibit governments or put restraints on what governments can do has been really widely litigated, both in the European Court of Human Rights and also in the domestic courts in the Supreme Court. And I think where we are now is that the public interest in immigration control is very, very strong. You can argue about whether that is a correct interpretation of Article 8. And there are some quite complicated legal arguments around that, which I won’t get into here. But the fact is, that is what the courts are saying, so that’s what the position is. And so, if you don’t have an immigration status, so either you’re here and you don’t have a status, or you want to come into the country, it’s only going to be really in exceptional cases that Article 8 is going to help you. It does have an impact, but its impact is quite at the margins, it is not going to really change or revolutionise immigration policies, it just enables a few difficult cases to succeed. As part of all the battles that went on in the courts over a period of about 10-15 years, the government legislated. So, obviously, if primary legislation overrides the Human Rights Act—in terms of, implied repeal—to that extent, even if they’re not complying with their obligations, it would probably prevail, at least here in the domestic courts. But the fact is, probably what they’ve said in the statute, as well in the immigration rules, is pretty close to what the Strasbourg Court would say, because the Strasbourg Court has been really quite cautious in developing Article 8. And so, there’s often not a lot you can do. CJLPA: That’s interesting and quite frustrating. You would think that human rights would play more of a role and help more people. HW: I think people were hoping that it would. I think, obviously, the government’s got its own point of view, and the government, particularly at the moment, is very keen to minimise immigration and so it’s going to do the bare minimum. Article 8 doesn’t say anything about immigration. So, you’re having to interpret Article 8 in a new context. And we’ve got the living instrument doctrine. We’ve also got the fact that you’re asking states to do something— when Article 8 concerns family reunification, that is regarded as a positive obligation on states, and the courts are going to be quite cautious about that. Essentially the Strasbourg Court, does rely very heavily on state consensus, and there isn’t a consensus on this issue. It’s not that the states are not all moving together towards trying to be nicer towards family migrants on the whole so they feel they have to leave a margin of appreciation to domestic authorities, and that they’re acting in a supervisory capacity. So, there are some cases that succeed at Strasbourg. And those cases have given an indication of the sorts of cases that might succeed. So, you do have some degree of, of clarity now that there are certain types of cases, almost always involving children. It is very difficult to bring an Article 8 case without there being a child, and this best interest of the child is now quite a powerful tool for that reason. But they are really only a very few cases. CJLPA: When you were talking about the best interests on society, how does migration policy affect wider society in the UK in all aspects, so public services, or the economy, for example? HW: It’s difficult to know the data on this, because obviously it’s a counterfactual. We don’t know what the world would look like if policies were different. But we’ve seen post-Brexit, the impact of Brexit, where it’s quite clear that Brexit has created a lot of shortages in the economy, and that this has had a damaging effect. So, I think, generally speaking, the upsides of migration have not been fully appreciated, and people will begin to appreciate that a bit more now. I think there’s been a lot of anti-migration talk, and not enough appreciation for how much our public services and other industries—catering, care, across the board, really, because migrants range from being very skilled, to doing more practical work, food processing, and so on—how much all of these sectors have been affected by labour shortages. So, not allowing migrants in does have a negative economic impact. Now, that’s not to say that that’s the only issue. Obviously, economics isn’t all of it. I think that there is a tendency to blame lots of things on migrants, such as ‘I can’t get an appointment at my GP’ or ‘schools are overcrowded’ or whatever, where that is really a problem with investment in public services, and how we run our public services. Housing, for example—why are we not building more houses? It isn’t that the immigrants are taking them all, it’s that we have a real problem with building houses in this country. So, I think that the upsides of migration have been really underestimated. Obviously, in my field in family migration, it’s really, really clear the damage that’s done to families. And I think one of the things that’s not been that much appreciated is how widespread a phenomenon this is. 50 or 60 years ago, it was primarily the ethnic minorities who had relatively recently arrived in the UK, who were wanting to—for the most part—bring in spouses and children and so on. And they were very badly treated, and the policies then were very harsh and very discriminatory. But they were a bit of a side issue politically, because the vast majority of the population weren’t implicated in them, they weren’t really affected. But we now live in a very different world and those are populations that have been here now for 50-60 years and are very, very much part of British society and that is not going to change, and yet they still have connections with their ancestral home. And in addition, we’re all very much more global—we move a lot more, we go abroad a lot more, we go on holiday, and you can meet somebody on holiday, you can meet somebody if you’re studying for a term at another university. If somebody comes here on a visit or a tour or, whatever, they might meet someone and want to settle and get together with them. So, I think the restrictions in family immigration affect quite a wide range of the population now, and it’s much more of a mainstream concern. And it really does damage families and divided families, it causes a lot of heartache, it causes a lot of pain, it causes a lot of practical difficulties. It’s really important. Nothing comes without costs. There’s not some magical world in which only good things are going to happen and none of the bad things, but I think that we have had a very unbalanced view of what migration can do, and its benefits. And we’ve focused so much on the negatives, that we’ve lost sight of the fact that a society that isn’t open, isn’t culturally open, isn’t outward looking, isn’t welcoming—that that’s not a very nice society to live in. CJLPA: One final question that I thought would be interesting: what barriers to entry may those seeking asylum in the UK face? And what burdens do they have when applying for asylum, for example in proving that they face certain dangers? HW: So obviously, the first challenge for asylum seekers is to get here. And that, as we all know—with a small boat, everything else—that’s extremely difficult. And the reason, there’s lots of reasons for it, but one reason is that the obligations, both in human rights law and in asylum law, really only kick in when the person is within the jurisdiction, which for nearly all purposes means within the territory. There are some marginal cases outside of that, but generally it is within the jurisdiction. Whereas in asylum law, to send someone back from the borders of your own country, into a place where they may face persecution—so if they’re not at the borders of your own country, if they haven’t managed to turn up at the airport or whatever—then you don’t have any obligation towards them. There are all these obstacles. And it’s been going on for years with carriers’ liability, fining airlines and lorries and all sorts of people, if they bring someone in, the visa requirements, the juxtaposed controls, whereby you have to show your passport in France before you get on the ferry, or the Eurostar, all of those are aimed at stopping people coming. If you do get here, and you make a claim for asylum, you’re in a very inefficient process, with loads of delays, ways in which the government will try to make your life difficult, it will try to find reasons to say that you haven’t complied, that didn’t set up the right meeting, but you might not have got the notice, for example. You’re not allowed to work. So you are reliant on very small amounts of benefits, and you don’t really have any choice and accommodation, you can end up living in areas, where that can create tension, because obviously, if you put a load of young men into an underprivileged area, and then don’t allow them to work, they will be seen as hanging around and looking a bit threatening. It’s not their fault, but it can create tension. So, it’s a very hostile environment in terms of how they’re having to live. And then they have an initial screening interview, and then they have to make a substantive asylum claim, and then maybe get some legal advice beforehand. And in the asylum interview, they have to show that they face persecution, if they’re not to be sent home. And the burden is on them, the government sees itself as having no obligation to assist them, even though it may have access to information. And it’s a really draining, frightening, scary process. You’re allowed an interpreter, but they may be of variable quality, and if you don’t perform well, that can be fatal to your claim. So, it’s very stressful, very difficult. Very high proportions of some nationalities are accepted. If you come from Syria, Afghanistan, places like that, the chances are very high that your claim will be accepted, because you can’t send people back to those countries that are in such a bad way. So, I think we could make the barriers easier to some nationalities, that’s definitely true. And then you have to appeal. If you get an adverse decision after appeal, you have to find a lawyer. It’s just very, very hard for people who are in a foreign country miles from home, often very worried about their families, worried about what they’ve left behind, very uncertain, living in limbo, for a very long period; it’s a very dysfunctional system. They may be detained, which is unpleasant, or they may be living in very poor accommodation. If they do receive refugee status, then they have a measure of security, although they’ve then got to navigate the world without much support. It can be quite difficult to bring in family members, if you’ve got family that were already in the country of origin, when you left, there is a more straightforward, cheaper process. But other than that, it can be very difficult to bring people in. So, the whole system is extremely difficult. I would say from the decision maker’s point of view, you’re having to establish the veracity of something that is probably incapable of being proved entirely. It can be quite difficult to know for sure whether something’s true. The standard of proof is supposed to be quite low. In asylum cases, it’s meant to be on the below the balance of probabilities, it’s meant to be reasonable likelihood, which is well below 50/50. But most people would say that the standard is not really applied in practice. Some people have to meet it at the higher level. CJLPA: Thank you very much. This interview was conducted by Eleanor Taylor, a geography graduate from the University of Manchester, currently studying the SQE to pursue a career as a commercial solicitor.

Boarding a crowded Delhi Metro train, I was crammed up with four college boys who seemed quite amused by my Tibetan face. As if the grins exchanged among them weren’t enough, one boy let out a catcall ‘Ching chong ping pong’. I face this every day and usually don’t have the time or energy to react to such racist verbal attacks. Since there were a couple of stations ahead, I inched closer to the teenager, shook hands with him. While still holding his hand I said, ‘Yenna da, yenna wennu?’ (‘Hey man, what do you want?’). They knew it was one of the four South Indian languages but couldn’t even guess which. Then I taunted him in Hindi: ‘Aap koTamil nahin ati hai kya?’ (‘So, you don’t speak Tamil?’). By then, the entire crowd on the train was staring at us, listening to every bit of the exchange. To this new-found audience, projecting my voice I gave an impassioned lecture on Indian nationalism, quoting the right-wing Indian Prime Minister about the beauty of India’s unity and diversity among its 1.25 billion population. By now, the entire coach vowed silently never to take on a ‘chinky’ in public. Until the mobile revolution, when wires connected the world, we encased ourselves in STD/ISD booths to make phone calls. International trunk calls were expensive, but a certain call package made phone calls to Tibet affordable. Since half of Dharamshala Tibetans came from Tibet in recent years they all called Tibet regularly. This was the only direct link between exile and home. Once, on the Tibetan new-year, Losar, I watched a long line of young men and women outside a phone booth in McLeod Ganj. One by one the refugees enter the cubicle, speak to their loved ones in Tibet, cry, and come out emotionally wrecked, then pay and leave. I called the booth the Cry Box. I realized that the maximum number of Tibetans in Dharamshala cry during Losar. That evening, as I walked down the hillside taking the shortcut through the pine woods and oaks, I reflected that they were fortunate to have someone to cry to, a house to call home. Being exile-born myself and having been deposited in a boarding school as a semi-orphan from early childhood, I find it painful even to write here that I grew up distanced from my family. That night I wrote: Losar is when we the juveniles and bastards call home across the Himalayas and cry into the wire.[1] Through the profound loneliness of being far away from parents and our imagined homeland, I often thought that we were children of our circumstances, and that history was our father and the culture that nourished us was our mother. As refugees, we have been physically uprooted from our homeland, but as transplants we are unable to settle down in the foreign land. Over and above that even the future looks bleak today. As born-refugees we have nowhere to call home. My parents’ generation look to the past with nostalgia for the memories of the homeland they left behind, but as exile-borns, for us, more than the borrowed memory, our history, the dream of liberating our country, fires our imagination. We look to the future with hope. Freedom is my first inspiration in life. My parents were teenagers when they followed His Holiness the Dalai Lama into exile in 1959, escaping persecution by Mao’s army. Initially, most Tibetan refugees worked as road construction labourers in the early rehabilitation period. My mother tells me I was born in a tent in a roadside coolie camp in Lahaul valley in the early 1970s. I must have been a restless toddler. Mother says she used to tie a rope around my waist and peg it on the roadside while they broke stones and laid the road. After my father’s death in our camp in Manali, north India, we moved to Kollegal in the South Indian state of Karnataka and pioneered the Tibetan settlement most distant from the Himalayas. I was two-and-a-half-years-old. I first heard about Tibet from my grandmother. She was a storehouse of stories. Her tales about Tibet built up an imagination of a country we had never seen. Our refugee camp was set up on the outskirts of Sathyamangalam jungle, the thickest jungle in all of South India, where the notorious outlaw Veerappan used to hunt elephants and logged sandalwood trees. We had been rehabilitated truly in the middle of nowhere. There, in the heat and dense jungles of Karnataka, my grandmother told us stories of snow-mountains and yaks, of apples, peaches, and apricots. Momo la had songs for everything: songs for games, skipping, farm work in our maize fields, and the long walks to the local vegetable market. She told us stories of Aku Tompa’s wit and wisdom. And this is how we became Tibetan, even after being born in India and never seeing the real Tibet. Every once in a while, the afternoon somnolence in our village was broken by a shrill sound from the Indian woman who came into our camp to sell the popular South Indian rice-cake snack, idlis. Bored with our bland and over-cooked Tibetan food, we kids rushed towards her. We loved the soft idlis dipped in spicy masala soup called sambar with a dash of coconut chutney, all served on a banana leaf. Sometimes the ice-cream man came by on his bicycle with a bullhorn blaring its pom-pom greeting. On other occasions it was the bucket exchange man shouting in Tibetan in a long wavering tone ‘Ha…yang…dung…pey…’. Having never gone outside our refugee colony, I had often wondered, and even asked my mother, where these Indians came from, not realizing we were the ones who came from outside, all the way from the high Himalayas. But it was not until in school that I first understood that we did not belong to the country we were born into and that we had lost the independence of our country and were now living outside Tibet at India’s sympathy. This shattered my little boy’s pride. This initial hurt transformed into anxiety as I imagined our people being blindfolded, knelt down with their hands tied behind them, then shot in the back of their heads. This, their children were made to watch. As the body slumped into the pit, the kids cried. And then the guilt that we lived in freedom while our brethren suffered tyranny, which was replaced by the great resolve to struggle for the freedom and dignity of our people even though it required a herculean effort. This resolve inspired me to take a lifelong pledge. I was eleven years old. Today, I honour this pledge with a symbolic red bandana that I wear on my forehead and have vowed never to take off until Tibet is free, and to work for Tibetan freedom every single day. After schooling, my first foray outside the Tibetan community was Madras, the capital of the Tamilian world in South India. I was shocked, not only by the people, place, and language, but also by the palate. My tummy, raised on Tibetan gastronomy, was being tested by fiery masala foods. My childhood snack, idlis, resurfaced, but this time as the staple main course. In the first week, the tangy masala meals were fun. However, by the third week my Tibetan digestive system started to give up. The light rice meals soon made us hungry again, the masala burned our guts. Often, in the middle of the night, I sat up on my bed, pressing a wet pillow to my belly while trying to study. My guts burned and I regurgitated a sour juice up my gullet. Combined with the anxiety of tackling Shakespeare, Tagore, and Subramanium Bharathi, I stayed late on my bed in the half-lit room and cried deep into the night. Now, South Indian cuisine is one of my favourites and even after twenty-five years I can still show off a smattering of Tamil. Where adaptation meets a dead end, creativity takes the lead forward; perhaps exile is the most fertile ground for growth. Two years ago, I went on a speaking tour of the UK. Tibetans living in the towns and cities that I visited hosted us. After much speaking, travelling, and interviews, when we gathered for dinner with long-lost friends, the food was inevitably rice, dal, and curry, typically Indian. I realized Tibetans have gone to the West, but culturally they have never left India. Today, almost seventy thousand Tibetans have emigrated to the West. They have not only become citizens of the world, but also preserved their identity. However, the third-generation youths are a concern; like most emigrant children, they have inherited the blood and the stories, but mostly not the language. When my classmate buddy, Tenzin Choegyal, dropped out of regular college, friends thought he was straying because of his fad: music. He used to listen to Hindustani music when none of us had developed a taste for it. He used to go ‘aaaa aaaa’, drawing clouds in the air with his hands as he tried to sing intricate ragas. Many years later I saw him leading singing tours in Australia, packed in an old sputtering brown minivan. He travelled for months, singing and telling stories of Tibet in various villages and towns. He sings long arias of traditional Tibetan pastoral tunes which are immediately arresting and soulful. There is a deep sense of longing and loneliness in his melodies. Recently he has been nominated for a Grammy, his first global recognition. During a phone conversation a few years ago, a Tibetan from Tibet told my friend in Sweden—with a great sense of pride—that Chinese in Tibet still did not dare to walk alone in Tibetan neighbourhoods as they fear being knifed or mugged. My friend asked him how that was possible, as the Chinese were now the majority in Tibet. The native observed that the Chinese had not yet overcome their archetypal fear of Tibetans and Mongolians as barbarians, and that Chinese exoticization of Tibetan culture has further reinforced this civilizational stereotype. As a poet and former political prisoner, my friend Phuntsok Wangchuk had always been the first to speak up against Chinese propaganda in Tibet, for which he had been tortured and jailed for six years. But the anti-Japanese propaganda films he had enjoyed in Tibet seemed to have worked on him. As a result, when he first arrived in Dharamshala, he couldn’t believe his eyes watching the almost exaggerated politeness, and the courtesy regime of the Japanese youngsters who bowed thrice before serving the Tibetan political prisoners with food and clothing. Tsewang Dhondup arrived in Dharamshala with his wounded arm slung around his neck. He said, ‘I hid in the mountains for months and escaped Tibet to bear witness to the atrocities I have seen with my own eyes and suffered myself’. Tsewang was shot twice in the Uprising protest that spread across the Tibetan Plateau in the months leading up to Beijing Olympic Games in 2008. This Uprising gave birth to two movements: the Lhakar Movement celebrates and instils cultural resistance while a series of unabated Self-immolations demanded ‘freedom for Tibet and the return of His Holiness the Dalai Lama to Tibet’. So far, there have been 157 known cases of Tibetans burning themselves inside Tibet alone, making their ultimate sacrifice of life for freedom. A while back, a friend’s stay with her family in Tibet was cut short and she was told never to return. She told me that the entire country of Tibet has been under lockdown; even the few passports issued have been revoked. Every individual has been registered as a number and pinned down to each small unit of dwelling and their movement mandatorily kept under surveillance. Tibet is now a police state. To mine lithium, copper, gold and rare-earths, China’s activity in Tibet is pushing Tibetan nomads and farmers off their ancestral land, coercing them to rehabilitate to alien and artificial villages, much like how White American colonists transplanted Native Americans into fenced plots called ‘Reservations’. Once, on a long train journey through central India, I sat down on the carriage’s entrance footboard with a stranger. Like me, my co-passenger, Ramchand, didn’t have a reserved seat. Over a cup of chai, he looked at my face and enquired if I was Chinese. Hiding my immediate irritation, I put my best foot forward and declared: ‘Hum Dalai Lama admi hain’ (‘I am a Dalai Lama follower’). That didn’t ring a bell with him. Now, I found myself in a crisis as his assumption still hadn’t changed. Banking on my ultimate resort I said: ‘I belong to the Mount Kailash country’. He blinked. For his ignorance, I wanted to take revenge. So, I asked Ram. Me: Lord Shiva lives on Mount Kailash? Ram: Yes. Me: Mount Kailash is in Tibet? Ram: Yes. Yes. Me: Mount Kailash has been Shiva’s abode for thousands of years? Ram: Yes. Yes. Yes. Me: That makes Lord Shiva a Tibetan? Ram: Hmmm… I later related this story to a much-entertained audience at Awadh Conclave, the literary festival in Lucknow. And since in the story Ram has lost Shiva to Tibet, I wanted to compensate for the audience. So, I said since His Holiness the Dalai Lama has been living in India for sixty years as a refugee, and also because he has globally championed India’s ancient wisdom and calls himself a son of India, I declared that the Dalai Lama is Indian. Inspired by Indian freedom fighters like Bhagat Singh and Subhas Chandra Bose, many years ago I went to Tibet to fight China. Alone. After graduating from Loyola College, Madras, I went to Ladakh, the nearest approach to Tibet to track a path to sneak into Tibet. I taught English in a Tibetan refugee school near Leh and later made my route across the Tibet border, on foot. I was twenty-two. My plans worked only in crossing the Indian border. Once inside I got lost in the cold desert for days, nearly died, and later was arrested by Chinese military police. They interrogated me, beat me up, denied me food and sleep, and threw me in jail. During those long interrogation sessions, they threatened me with execution by a bullet in the back of the head. The legendary stories of Chinese public executions the elder generation of Tibetans had told us kept flashing through my head. I marked my days on the prison wall with a nail until I lost count. This was the best training I have received in my life. Today, when I get arrested for protesting against a visiting Chinese president, and when the Indian police try to intimidate me, I tell them to calm down and say that I am steeled by Chinese interrogation and that we might skip the time-pass and focus on working together. We call ourselves refugees to keep alive our dream to return to our homeland while India calls us foreigners—perhaps a potential leverage against China—though the Constitution of India recognizes us as citizens. In seventy years, Mao Zedong’s China became an economic superpower but, in the process, killed its own Buddha. Tibet has lost one sixth of its population and almost all its monasteries, but the People’s Republic couldn’t change us in seventy years. Today, Tibet’s Buddhism may be quietly changing China itself. The struggle for Tibet’s independence is not just a national movement for me, but also a very personal struggle. I have created for myself a personal record; my protest actions sent me to jail sixteen times while speaking tours took me to visit twenty foreign countries. I have always felt rejuvenated and spiritually liberated after each jail episode. I found freedom in jail; I have learned to live with strangers charged with murder, rape, and robbery by sharing food, room, and toilet. I have learned to live with a handkerchief as my towel, finger for toothbrush, shoes as pillow and the shirt to cover myself when I sleep on the floor. I live an old-world lifestyle; that of a wandering poet. I travel for months touring towns and cities, telling stories and reading poetry. I sell my books, and that pays for my food and travel. Although my income is small, my expenses are even smaller. I live a simple and minimalized, need-based life. I live in two sets of clothes. My friends think I have only one, but in fact I have two. I wear them in turns. Home is not a house but the purpose that takes us places, and sometimes away from our own home. Reasons to live can make strangers a family, and no country foreign. When we come out of our comfort zone, we learn to make ourselves feel at home anywhere. Stuck at home, with old habits and malice, a house can sometimes turn into a prison. Once, a prince from the land of the Ganges left his family and kingdom in search of higher truths and never returned. He found a key to happiness which, even to this day, is practised as the path to freedom. To many this is home. Tenzin Tsundue Tenzin Tsundue is a Tibetan writer and activist, born and raised in India. His writing has inspired movies and plays, some of which have been anthologized and are being taught in universities in India and abroad. He is one of the most prominent voices and activists for the Independence of Tibet. [1] From the poem ‘How I Lost My Losar’, first published in Tsengol: poems and stories of resistance (2012).