A case for the enhanced pre-sentence report in England and Wales, exploring how the Canadian approach to racially disproportionate sentencing outcomes could be fashioned in the UK In 2021, I was one of the lead contributors to a guide[1] for lawyers committed to ensuring Black lives matter in the Criminal Justice System. In the guide, I highlighted the case of R. v. Morris[2] as a way in which lawyers could use the law creatively to deal with racially discriminatory outcomes in the Criminal Justice System. I still believe, however, that there are many under-theorised approaches from R v Morris[3] and international human rights laws and principles that can be of real benefit to ensuring that sentencing hearings produce racially equitable outcomes. This piece will explore the ways lawyers can practically use this case and international human rights law and principles to do just that. The case of R. v. Morris[4] sets precedent as to how sentencing judges should account for systemic anti-Black racism when sentencing Black people, including (but not limited to) the use of ‘enhanced pre-sentence reports’ that document the impacts of anti-Black racism. Canada, unlike the UK, has a history of recognising the unique conditions of Black and Indigenous persons in their sentencing processes and decision-making. The criminal law code in Canada has recognised that there are cases where, in order to determine a fit and proportionate sentence, consideration must be given to an individual’s systemic and social circumstances. In particular, in June 1995, Parliament passed Bill C-41, a bill amending the Criminal Code with respect to sentencing. The new law came into force in 1996 and contained Criminal Code Section 718.2(e), which was intended to ameliorate the high rates of incarceration of Indigenous people. Section 718.2 reads: ‘A court that imposes a sentence shall also take into consideration the following principles: (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders’. These circumstances often extend beyond the person who is being sentenced to include factors such as systemic discrimination and historical injustice. This has been recognised by the criminal courts[5], particularly in the case of Indigenous offenders who have a distinct history of colonial violence endured by Indigenous peoples and has extended to people of African descent. This reparative approach taken to address the ongoing harms of racism, slavery, and colonisation allows judges to consider social contexts in sentencing decisions. This approach has also allowed for new racial justice mechanisms to be further embedded into the Canadian legal system through the recent advent and use of Impact of Race and Culture Assessments (IRCAs)[6] in sentencing people of African descent. These IRCAs were first introduced in R v ‘X’.[7] These reports provide the court with a detailed understanding of the effects of systemic anti-Black racism on people of African descent and how the experience of anti-Black racism has informed the circumstances of the offence, the offender, and how it informs the offender’s experience of the criminal justice system. These reports also address, inter alia, anti-Black racism and aim to promote tailored and proportionate sentences for Black people. They strive to construct a sentencing methodology that balances the significance of the twin principles of individual responsibility and proportionality, while incorporating the cultural legacies and historical oppressions and their role in the sentencing of Black people. In the case of R v Morris,[8] Justice Nakatsuru considered the impact of anti-Black racism on Mr. Morris’s life and his social history. The defence presented an IRCA to the court and requested that the authors of this report outline and analyse the research relating to the existence and impact of anti-Black racism in Canadian society in general and the Toronto region in particular. The facts of the case In 2014, Kevin Morris, a 22-year-old Black man, was detained, chased, and injured by police officers PC Keefer and DC Moorcroft in a parking lot. The police officers did so as part of investigating a nearby home invasion, but neither Mr. Morris nor the three other young Black men Mr. Morris was with were involved in the invasion. In the aftermath, a jury found Mr. Morris guilty of charges relating to the possession of an unauthorised gun. The Outcome At the sentencing hearing, the Crown requested Mr. Morris a sentence of four to four and a half years. Mr. Morris’s defence lawyers requested a sentence of one year. Many of the previous sentences handed down for gun offences relating to criminal activity had usually been at least three years, while other cases for gun offences had been from one to two years. Upon considering the anti-Black racism that applied on a systemic and interpersonal level to Mr. Morris, Justice Nakatsuru sentenced Mr. Morris to 15 months. The sentence was then reduced to one year after taking into account the police officers’ unlawful infringement on the Charter of Rights and Freedoms.[9] In passing down the sentence, the judge noted the following: In the final analysis, what makes this sentencing different from other cases where leniency was not given is that I have been given a wealth of information to sentence you, information that can be used to take further steps to deal with the over-incarceration of Black people in this country. This judgement was recently appealed in February 2021 (judgement handed down in October 2021) by the Crown due to the length of the sentence given by the judge. The Court of Appeal allowed the appeal in order to increase the sentence but stated that the approach from the Judge in factoring anti-blackness was the correct one to take. The decision to increase the sentence has been rightfully condemned by the interveners in the case—The Black Legal Action Centre (BLAC)—[10]who state they are disappointed by the decision in the appeal of R. v. Morris, explaining that the Court failed to take a strong stance to ensure that every sentencing judge across the province meaningfully considers anti-Black racism in a consistent way when sentencing a Black people. Robyn Maynard, in Policing Black Lives, notes that ‘Black existence in public space is itself seen as criminal and thus subject to scrutiny, surveillance, frequent interruption and police intervention’.[11] This is of particular importance as Black communities in the UK remain over-policed through racially disproportionate stop and search,[12] which allows for Black communities to be funnelled through the criminal justice system. Black communities in the UK only make up 3% of the population but represent 13% of the adult prison population.[13] Currently, 59% of children on remand are Black.[14] The Lammy Review as far back 2017 highlighted the anti-Blackness within the judiciary when it comes to the disproportionate sentencing of Black males.[15] International Human Rights Law Overview The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),[16] ratified by the UK on 7 March 1969, establishes the obligations of State parties to respect and ensure racial equality and the right to be free from racial discrimination. Several other human rights treaties also contain prohibitions on racial discrimination and other forms of discrimination, including the International Covenant on Civil and Political Rights (ICCPR),[17] to which the UK acceded in 1976. Under international human rights law, anti-Blackness is an infringement of the rights of people of African descent. Due to this, there must be scope to make arguments based on international human rights law when dealing with anti-Blackness in the courtroom. The ICERD[18] was created to deal specifically with racial discrimination within a specific human rights mechanism. The treaty in and of itself can be relied upon by countries where the ICERD treaty was ratified to make submissions in respect to failures to comply with international human rights obligations. The UK may not invoke ‘the provisions of its internal law as justification for its failure to perform a treaty’. The UK’s wide ranging international human rights law commitments include an obligation to ensure racial equality and eliminate racial discrimination. This obligation not only arises from its commitments under the ICERD, but also from its other human rights treaty commitments; nearly every human rights treaty contains a provision on non-discrimination. Article 2.1 of the ICCPR makes it clear that the rights recognized in the Covenant are to be recognised without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.[19] Article 2.2 of the ICESR outlines similar obligations with regard to economic, social, and cultural rights.[20] The Committee on the Elimination of All Forms of Racial Discrimination (CERD) also produces General Recommendations that offer analysis of relevant provisions and practices of the U.N. treaty bodies. Since 1972, the CERD has issued general recommendations in order to provide guidance to States parties in understanding the provisions of the Convention and thereby assisting them in implementing the Convention fully based on their reporting to the Committee. International Human Rights Law: CERD Recommendation No. 36 General recommendation No. 36 (2020) on preventing and combating racial profiling by law enforcement officials[21] is an extensive document the UK must use to further understand how it can comply with its international human rights obligations. Paragraph 24 of General Recommendation No. 36[22] states that: Under article 6 of the Convention, States parties have an obligation to assure to everyone within their jurisdiction effective protection against any acts of racial discrimination. Accordingly, States parties must take preventive measures in order to ensure that public authorities and public institutions do not engage in practices of racial profiling. Article 6 also requires States parties to ensure to everyone within their jurisdiction effective remedies against any act of racial discrimination. States parties are obliged to ensure that their domestic legal order contains adequate and effective mechanisms through which to assert that racial profiling has taken place and to bring such a practice to an end. States parties must furthermore guarantee the right to seek just and adequate reparation or satisfaction for damage suffered as a result of racial discrimination in the form of racial profiling. The General Recommendation makes plain that racial profiling is in violation of the prohibition of racial discrimination. It also outlines how racial profiling is committed through certain official patterns and activities, such as arbitrary stops, searches, identity checks, investigations, and arrests. General Recommendation No. 36[23] establishes that racial profiling runs contrary to non-discrimination and equality before the law as foundational principles of international human rights law, as well as to the ‘very idea of the Convention’. The UN Special Rapporteur on Racism also notes that several international human rights mechanisms have concluded that racial profiling is both a manifestation of systemic racism and a contributor to the perpetuation of societal racial stereotypes, prejudice, and bias. The CERD’s General Recommendation No. 36[24] conceptualises racial profiling as both an individual and a structural violation. The CERD found that racial profiling and broader societal racism, including hate speech, are closely interrelated, in that stereotyping and hate speech can lead to law enforcement officers engaging in racial profiling and profiling can in turn increase stigmatization and promulgation of ethnic stereotypes. International Human Rights Law: CERD Recommendation No. 34 General recommendation No. 34[25] adopted by the Committee concerns Racial discrimination against people of African descent. It requires that ‘people of African descent shall enjoy all human rights and fundamental freedoms in accordance with international standards, in conditions of equality and without any discrimination’.[26] Paragraph 15 notes that States should ‘strengthen existing institutions or create specialised institutions to promote respect for the equal human rights of people of African descent’.[27] What could racial justice lawyering look like under current sentencing guidelines in the UK, and how can lawyers use R v Morris to inform mitigation arguments and approaches to Pre-Sentence reports? Within the sentencing principles that currently exist, I believe that there is scope for lawyers to use the law and sentencing guidelines creatively to build a framework of analysis that can begin to address the issue of disproportionate imprisonment within Black communities in the UK. For us to do this, lawyers must understand that the law is not neutral. Critical legal theorists have expanded on this by explaining that the law is the mechanism for legitimising the existing hierarchy of social relations and thus, crystallising existing patterns of domination. Racial justice in the courts, therefore, requires the law to be decentralised, moving away from the perception that all charged persons before the court are white and male. Instead, the courts allow for an equitable approach that ensures fairer outcomes for racialised persons. In the case of R v Jackson 2018,[28] the sentencing judge Nakatsuru took such an approach. See paragraph 86: Taking judicial notice of the historical and systemic injustices committed against African Canadians and African Canadian offenders is preferable to a strict adherence to the traditional rules of evidence which will only serve to advantage the status quo. The offender should not be burdened with the requirement to bring such evidence, usually in the form of expert evidence, to their sentencing when these social and historical facts are beyond reasonable dispute. Current sentencing guidelines The sentencing guidelines have sections within them that can be used to expand upon the history and legacies of Anti-Blackness on defendants at sentencing. The Sentencing Council’s Overarching Guideline on Sentencing Children and Young People notes at paragraph 1.18 that Black and minority ethnic children are over-represented in the youth justice system and states that decisions about the welfare of a child must consider the particular factors that arise in the case of Black and minority ethnic children.[29] The Sentencing Council has also taken recent measures in the guidelines for possession of firearms and possession with intent to supply drugs, which can aid in drawing sentencers’ attention to evidence of racialised sentencing disparities.[30] The approaches of the Sentencing Council in actively reminding sentencers during the sentencing exercise to be aware of the racial disparity can be seen as a measure that is aligning with international human rights law. Particularly, in respect to ICERD Article 2, Para 1 that requires States Parties to condemn racial discrimination and to undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: 1(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; 1(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists. Lawyers can also remind judges of their role in fighting racial discrimination and disparity with the criminal justice system and their obligations under the Equal Treatment Bench Book, asking the court to take into consideration their client’s personal and cultural experiences as mitigating factors. In the case of R v Jackson, at paragraph 107, the sentencing judge Nakatsuru noted that ‘[o]ne way in which this information (history of anti-Blackness within society) can be used is to ensure that the contextual circumstances regarding the lived experiences of African Canadians are properly taken into account when applying the principles of sentencing’.[31] As judge Louis LeBel said in R v Ipeelee at paragraph 67: [J]udges can ensure that systemic factors do not led inadvertently to discrimination in sentencing. Professor Quigley aptly describes how this occurs: ‘Socioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political, and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination’.[Citation omitted in original.] Sentencing judges, as front-line workers in the criminal justice system, are in the best position to re-evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination.[32] Another way that lawyers can ensure that the history of racial discrimination is highlighted to the court is through preparing a sentencing note that sets out the issues and data on the systemic discrimination experienced by Black people and actively, as the judge in the above case has shown, warning the court of the risks of its decision in contributing to structural and institutional racism. The Lammy Review found a clear and direct association between being Black and the higher likelihood of receiving a custodial sentence, with Black people 53% more likely to be sent to prison for an indictable offence at the Crown Court, even when factoring in higher not-guilty plea rates. I did this in a recent youth court case in which the mandatory minimum sentencing for knife possession applied and my client was spared custody. I also did this for a hearing I had for a young Black defendant who was being sentenced at the Crown Court. I mentioned in both written and oral submissions R v Morris[33] as best international practice and invited the court to use this approach to factor in my client’s experiences of anti-Black racism, which meant he presided more often before the courts. I further included points from the ICERD and its general recommendations mentioned above, The Lammy Review and Baroness Casey Review in this sentencing note. The judge agreed with my approach and took it into account as mitigation to reduce the sentence. Ensuring the Pre-Sentence report covers the personal and cultural history of the Defendant In England and Wales, when a pre-sentence report is provided to the court, only the discussions provided to the probation officer about the defendant are included in the report. an inspection of Race Equality in Probation[34] found that the quality of PSRs prepared in cases of Black, Asian and Minority Ethnic service users was ‘insufficient in too many cases’ and that not enough attention was paid to diversity. Inspectors concluded that ‘[p]oorer quality reports that fail to consider all relevant factors run the risk of service users receiving more punitive sentences’.[35] Lawyers must make an effort to ensure their client feels comfortable to discuss any issues of anti-Black racism they have faced with the probation officer so they can include this in the report. Lawyers should have discussions with their clients before sentencing about any experiences of racial injustice, whilst remaining aware that the experiences may be both direct and indirect. In the case of it being indirect, lawyers will need to be well versed in anti-racism research in order to highlight this. Lawyers, after confirming with their client, can also discuss with probation the need to ensure they have taken into account the issues noted in the Lammy Review and the recent Justice report on the overall lived experiences of racialised clients.[37] They should simultaneously highlight the concerns raised in an inspection of Race Equality in Probation HMIP 2021 report on the quality of PSRs prepared in cases of Black, Asian and Minority Ethnic service users. This is of particular importance, as the UK’s sentencing Council’s overarching principles notes that it is for the sentencing court to determine how much weight should be assigned to the aggravating and mitigating factors, taking into account all of the circumstances of the offence and the offender. In order for the court to have all information about the offender and offence, the Court should be provided with international human rights documents like General Recommendation 34 of CERD, that will show the legacy of anti-Blackness globally.[37] Advocates should, then, through oral or written submissions, explain how anti-Blackness has shaped the offender’s life experiences and has led to them being in contact with the criminal justice system. Using R v Morris as best international practice when discussing mitigation Lawyers should consider R v Morris[38] alongside international human rights law as a best practice guide when gathering evidence and drafting submissions that can be used to showcase how anti-Blackness and anti-Black racism directly affects their Black clients. R v Morris[39] can be used as a blueprint for ways they can approach bringing this evidence forward to the court during mitigation. They can also present the case directly to the courts as best international practice, noting to judges that that whilst this does not yet have direct precedent in domestic courts, it nonetheless provides the courts with the best practice from an international human rights law approach when dealing with the impact of anti-Black racism on their clients offending, their contact with the criminal justice system and their wider life experiences. Ife Thompson Ife Thompson is a distinguished Movement Lawyer and UN Fellow, specialising in criminal defence, family law, and actions against police misconduct. Her work often intersects with cases involving racial and linguistic injustice, and she employs innovative legal strategies, drawing from UN International Human Rights Law and community-based issues to actively challenge these matters within her criminal defence practice. She has also founded two civil society organisations to further these pursuits. The first is BLAM UK: an award-winning Non-profit that provides educational, advocacy and well-being support for Black people living in Britain. The second is Black Protest Legal Support UK, a hub of UK-based Lawyers willing to provide Pro-bono support and legal observing at BLM and racialised protests. [1] Howard League for Penal Reform, ‘Making Black lives matter in the criminal justice system: A guide for antiracist lawyers’ (2021) accessed 9 October 2023. [2] R v Morris [2018] ONSC 5186. [3] ibid. [4] ibid. [5] R. v. ‘X’ [2014] NSPC 95. [6] ibid. [7] ibid. [8] ibid. [9] Canadian Charter of Rights and Freedoms, Constitution Act 1882. [10] Ammar, ‘BLAC responds to Ontario Court of Appeal decision in R. v. Morris’ (Black Legal Action Centre, 8 October 2021) accessed 9 October 2023. [11] Robyn Maynard, Policing Black Lives: State Violence in Canada (Fenwood Publishing Co Ltd 2017). [12] Vikram Dodd, ‘Black people nine times more likely to face stop and search than white people’ Guardian (London, 27 October 2020) accessed 9 October 2023. [13] Georgina Sturge, ‘UK prison population statistics’ (Commons Library Publications, 8 September 2023). accessed 9 October 2023. [14] Penelope Gibbs, ‘Children imprisoned on remand – the stark reality of racial bias’ (Transform Justice, 5 November 2021). accessed 9 October 2023. [15] Lammy Review, ‘The Lammy Review: final report’ (gov.uk, 8 September 2017) accessed 9 October 2023. [16] International Convention on the Elimination of All Forms of Racial Discrimination, UN General Assembly resolution 2106 (XX) 21 December 1965. [17] International Covenant on Civil and Political Rights, UN General Assembly Resolution 2200A (XXI) 16 December 1966. [18] ibid. [19] ibid Article 2.1. [20] ibid Article 2.2. [21] General Recommendation No. 36 on preventing and combating racial profiling by law enforcement officials (2020). [22] ibid [24]. [23] ibid. [24] ibid. [25] General Recommendation No. 34 adopted by the Committee: Racial discrimination against people of African descent (2011). [26] ibid. [27] ibid [15]. [28] R v Jackson [2018] ONSC 2527 (CanLII) [86]. [29] Sentencing Council, ‘New Sentencing Guidelines’ (Sentencing Council, 9 December 2020) [1.18]. accessed 9 October 2023. [30] Sentencing Council, ‘New sentencing guidelines for firearms offences published’ (Sentencing Council, 9 December 2020) accessed 9 October 2023. [31] R v Jackson (n 28) [107]. [32] R v Ipeelee [2012] SCC 13 (CanLII) 1SCR 433 [67]. [33] ibid. [34] HMIP, ‘Race equality in probation: the experiences of black, Asian and minority ethnic probation service users and staff’ (HMIP, 16 March 2021) accessed 9 October 2023. [35] ibid [29]. [36] JUSTICE, ‘Tackling racial injustice: Children and the youth justice system’ (JUSTICE, 25 February 2021) accessed 31 October 2023. [37] ibid. [38] ibid. [39] ibid.

Andrew Clapham is Professor of International Law at the Geneva Graduate Institute, which he joined in 1997. He was the first Director of the Geneva Academy of International Humanitarian Law and Human Rights (2006 - 2014). Andrew Clapham teaches international law, human rights law, and the laws of war. He recently served as a member of the UN Commission on Human Rights in South Sudan (2017-2023). In 2003 he was an Adviser on International Humanitarian Law to Sergio Vieira de Mello, Special Representative of the UN Secretary-General in Iraq. His publications include: Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations (7th edition) (Oxford University Press, 2012), Oxford Handbook of International Law in Armed Conflict, co-edited with Paola Gaeta (Oxford University Press, 2014), and he is co-editor with Paola Gaeta and Marco Sassòli of The 1949 Geneva Conventions: A Commentary (Oxford University Press, 2015). His latest book is entitled War (Oxford University Press, 2021). CJLPA: Good morning Professor Clapham. I would like to thank you on behalf of The Cambridge Journal of Law, Politics, and Art, for joining us this morning to discuss the valuable insights of your work in international law, human rights, and humanitarian law. Your career spans decades with experience as Amnesty International representative at the UN, advisor to the Special Representative of the UN Secretary General in Iraq, member of the UN Commission on Human Rights in South Sudan, and more. You were also the first director of the Geneva Academy of International Humanitarian Law and Human Rights (from 2006-2014), and a well published Professor of international law at the Geneva Graduate Institute, with your most recent book titled War, released in 2021. We would like to start by asking how your diverse experiences as practitioner, academic scholar and author have been informing your thoughts and your work, and maybe briefly, what your focus has been recently as well? Professor Andrew Clapham: Well, thank you very much for having me. I suppose it's difficult to be working in this area without thinking about the war in Ukraine. Obviously, there are multiple legal developments related to that conflict. I don't pretend to be on top of all of them, but if you ask me what I'm thinking about, it's a lot of the issues connected to that conflict, but partly because they haven't come up before in recent times—for example, issues of neutrality, funding, and supplying arms to either side of the conflict, the questions of naval warfare, interference with ships, search of ships, that hasn't come up before, at least not in recent times. And so those are some of the issues, and I know we're going to talk about war crimes later. And then the second thing that I'm thinking about at the moment, if you're asking, is the prosecution in Stockholm, Sweden, for complicity in war crimes of the former chief executive and former chairman of the board of the oil company Lundin, for their activity in Sudan (as it then was) in the sector where Lundin was doing oil exploration. That also is a groundbreaking prosecution and I'm trying to follow it as best I can. It only started a few days ago but it's going to run for two years, so I'm trying to get my head around that as well. CJLPA: There are so many avenues to consider with regards to these very complex conflicts. Beyond international mechanisms, do you think Ukraine is currently equipped to prosecute such war crimes? And what are the main challenges Ukraine would face in prosecuting these war crimes? AC: Ukraine has a criminal code that arguably covers most of the relevant war crimes. The main difficulty, I think, is not necessarily in the legislation or even the existence of courts, but in actually capturing people who could be prosecuted. Obviously, they have captured prisoners of war, but some of those have had to be exchanged for Ukrainian prisoners on the Russian side. So even historically, looking at some of the prosecutions that there have been, even after conviction—if I've understood correctly—those prisoners have been swapped for people held by the Russians on the other side. So, in trying to prosecute war crimes in the middle of an armed conflict, you come up against these competing interests, which is to bring your own people home. The actual definition of the crimes is a complicated area. But what I would say to you at this point is that this is unusual in some ways as an armed conflict because you have the application not only of all four Geneva Conventions, but also Additional Protocol I, because both Ukraine and Russia are parties to Additional Protocol I. Additional Protocol I includes a list of war crimes relevant to this conflict, related to attacks on civilians or disproportionate attacks involving civilian casualties. And so it wouldn't be that difficult to prosecute such war crimes because they are defined in a treaty ratified by both sides. A lot of the media talk about the fact that neither Russia nor Ukraine have ratified the Rome Statute, but actually the Rome Statute is for prosecuting people in the International Criminal Court (ICC), and it's based on these crimes which have existed in treaty law for some time now. So I think it's certainly possible. And the fact that these crimes are grave breaches under the Geneva Conventions means not only that they could be prosecuted in Ukraine or Russia, but they could also be prosecuted in any state in the world because every state has ratified the Geneva Conventions, and many of those states will have national law that allows them to prosecute a grave breach of the Geneva Conventions, even states that are not parties to the ICC. So for example, since January this year, the United States has adjusted its law and could prosecute anybody accused of grave breaches. The United Kingdom has something called the Geneva Conventions Act, which gives jurisdiction to the British courts to prosecute those who are accused of grave breaches of the Geneva Conventions. So that would be the aspect that I would stress that the ‘universal jurisdiction’ if you like—because every state in the world is a party to these treaties—stems from the Geneva Conventions and not from something called international criminal law or even the ICC. CJLPA: In your opinion, would Ukraine need to amend any of their laws to align more with ICL standards in order to prosecute these crimes and establish accountability? And what would need to be amended? Or is it, as you said, not Ukrainian national law that would pose an issue? AC: No, I think there is room for amendments in Ukrainian law. I think one of the issues relates to command responsibility or superior responsibility—Article 28 in the ICC statute.[1] If you wanted to prosecute command or superior responsibility in Ukraine, my impression was that it would be quite tricky. But there may be other ways under Ukrainian law that I don't understand, as to how you could indeed prosecute somebody for command responsibility. In terms of other crimes, I think there are efforts to try to bring national legislation more into line with some of the long list of crimes in the ICC Statute. But I think, for the very basic crimes of murder and sexual violence, you would be able to use the war crimes concepts from the Geneva Conventions, which are sort of indirectly incorporated into Ukrainian law because it talks about criminal responsibility for violating humanitarian law treaties which Ukraine is a party to, and that would obviously cover the Geneva Conventions. CJLPA: In your recent book titled War, you explore the evolution of the term and how the different notions of war, or War, and armed conflict may produce different implications and consequences. Indeed, Russia prefers the term ‘special operation’, and individuals may be tried for treason by referring to it as a war. In your opinion, which category would Russia-Ukraine fall under, and what laws may apply in that case? AC: It's true that the Russian authorities have avoided using the word war to describe the operation. Although, ironically, my impression from some of the reports I've read is that they do talk about a war with NATO. So there's a sort of distinction between how they see the others, and maybe it's partly related to the idea that they claim they are sort of reincorporating Ukraine back and so they don't see it as a war with another state. But to be frank, I don't think that's the only reason why Russian authorities have avoided the word war. I think the word war suggests an all or nothing combat. And I think to suggest to the people that ‘we are at war’, or ‘we are going to war’ suggests that young people will be conscripted, and the whole economy will be mobilised. I think that might be a frightening concept, and so a special military operation implies something smaller. Now, whether or not one could use the word War with a capital W as I've used it in the book is a separate question; I've used it to mean a formal Declaration of War under the old law of war, where some conflicts were not considered War because there had been no Declaration of War. As far as I know, there's no Declaration of War by Russia or Ukraine, or any sense that they are at War. So, to answer your question, I would consider this a war or simply an armed conflict. It might make a difference, for example under some human rights treaties, which allow for the death penalty in time of War. There, I think you need a formal War, and not just an armed conflict. So it could be significant. The other area is in naval warfare, where some people might consider that the law of prize—the law that entitles you to seize enemy ships outside neutral waters—really requires a Declaration of War to trigger prize court jurisdiction. So there could be reasons why the states might choose not to make a Declaration of War or why, in the future, they might make one. But for me, at the moment, it's not a Declared War. CJLPA: You have also written about just war theory in the case of Ukraine, and that it may be time to consider holding lower rank and file soldiers responsible for fighting those conflicts in the same way we hold higher ranking military leaders responsible. Can you explain this concept for our readers and elaborate on the shortcomings of our current concepts of just war and responsibility? AC: Yes, thank you. In traditional just war theory, philosophers feel that there should be something called ‘the symmetry of soldiers’ or ‘the symmetry of combatants’, the idea is that whether you're fighting on the just side or the unjust side, you should be treated the same, unless, of course, you commit a war crime. But the mere fact of fighting, even for the aggressor’s side, should not lead to punishment under this theory. And this principle is defended strongly by traditional just war theorists. I'm not sure exactly what their overarching key argument is, but one of the arguments which recurs is that if soldiers are going to be punished for simply fighting, there would be no incentive to abide by the laws of war. So, if when you're captured, you're going to prison for simply fighting on the other side, then what's to stop you from killing civilians or committing rape because you're going to be punished anyway? I personally don't think that's a good argument. You would obviously be punished more if you've committed war crimes, and I don't think people commit war crimes thinking about whether or not they're going to be punished. I think you need a much more complex analysis to try to dissuade people from doing that. But then one finds a set of secondary arguments which revolve around feasibility, if you punish everyone from the aggressor's side you're going to have an impossible task. If there is an army of 100,000 people, and they're all aggressors, then you can't prosecute everybody. And so you make a mockery of the rule of law, and you undermine the whole concept of law in wartime, because people are violating the law every day, and you're not punishing them. Again, I don't think that really holds up in the sense that, clearly, we're not going to punish everybody, you've got to capture people, and you're not going to waste time punishing people who had no real role in the aggression. Yes, there may be foot soldiers who are liable to prosecution, but you're going to punish those who have engaged in knowingly in furthering the aggression, not people who were peeling potatoes not really understanding what was going on, sitting at the back of the lines. So, my suggestion was that we need to start to think about punishing those on the aggressor’s side and not consider that they have some special immunity derived from a philosophical just war theory. In law, it gets more complicated in that the Additional Protocol I does say that members of the armed forces of a state have the right to directly participate in hostilities in an interstate armed conflict. But in Nuremberg people were prosecuted on the military side for assisting the aggression. And I think it would be possible, without violating the rule that says you have the right to directly participate in hostilities, to start to think about the crime of aiding and assisting the crime of aggression. And this brings me back to my answer to your very first question that if we start to think about prosecuting those who assist the aggression, then that starts to open up the possibility of prosecuting businesses and business leaders for supplying the equipment, which allows a state to engage in an aggression. If we start from the idea that you can only prosecute the head of state for aggression and the top general, but you can't prosecute all the people who have helped in that aggression, I think you let a lot of people off the hook—all those who are making money out of the war and fuelling the war on the aggressor’s side. And I think they should start to think that maybe they too can be considered as liable under international law. So those are my sort of reasons why I think it makes sense to start to think about those who are helping the aggressor and not say that, traditionally, you can't look at either one side as worse than the other because ‘that's how it's always been’, because ‘that's how it's always been’ goes back to the time when disputes were settled in a duel-like mentality: we have a dispute, so we'll go to war, and then God will reward the winner and that's how disputes are resolved. But today, if you have a dispute, you’re supposed to go to the UN or the International Court of Justice, not fight it out on the battlefield, and if you've chosen to start a war, I don't see why not just the leader, but all of those who knowingly go along with it can't be punished too. Now my students and other people tell me: ‘Oh, but a lot of people will be coerced into going to war, and they won't really understand it, or it'll be a life and death, they'll be shot if they don't go to war’. To which my response would be, ‘Well, we could deal with those cases one by one when it comes to the prosecution. If somebody genuinely feared for their life and had to go to war and ended up being on the aggressor’s side, but didn't commit war crimes, maybe they don't get punished in the same way as somebody who organised all of the troops or somebody who built all the bombs and knowingly sold them to the aggressor’s side’. So, it's a bit of a taboo subject in just war theory. Even those who take a more revisionist approach don't really want to touch the idea that soldiers can't be prosecuted merely for participating in a war on the aggressor’s side, but I'm saying maybe the time has come to change that approach. CJLPA: I think a lot of how we deal with war, as you said, goes back to very archaic ideas, and it's time to modernise that and address disputes the way we address all kinds of other disputes. I agree that it also depends, because some soldiers would be way more aggressive than other soldiers. And I think that really gives an idea of the kinds of individuals involved in the conflict. Following from that, what practical limitations may arise from broadening the scope of accountability? As you said, if we don't stop at soldiers, then we might bring in corporates as well, which is also very important. So, what practical limitations may arise from this, and what avenues may be available to address these? AC: I mean, I'm not sure there are practical limitations. I'm told, ‘Oh but that means prosecuting 100,000 people’, but that's not really how war crimes law works. Not all the war criminals are prosecuted in any conflict. A few people are—a tiny minority of those who have committed the crimes. And I think it could be the same for prosecuting the crime of aggression. It's not that you're going to take everybody in the prisoner of war camp and then prosecute them for the crime of aggression, but I think what we need to challenge is the idea that nobody can be prosecuted except a few leaders. Is it practical to prosecute corporations and their directors? I think absolutely, yes. In some ways, it's easier because, first of all, the corporation can't move around in the same way that people can. People can sort of disappear, they can change their names, but if you are a major corporation, and you're supplying parts knowing that they're going to be used in a war of aggression, you can't just disappear—you're listed on the stock exchange, you have assets, you have a reputation. So I think it's a question of changing one's focus rather than that it is impracticable. It's practically perhaps more difficult because corporations are well funded, almost by definition, and they will be able to pay for very good lawyers to delay prosecutions, to challenge jurisdiction, and so on. But we'll see what happens now with this Swedish case. It's going to run for two years and it will be watched, I think, very carefully, by corporate directors around the world, and whether or not either the corporation has to pay a fine—because they have already had some money frozen by the Swedish prosecutors—or the directors are punished, I think it will give pause for thought to other directors, and I think maybe it's worth reminding that such a prosecution can happen for war crimes, but in the future, it might also be for aiding and abetting the crime of aggression. The rule that says that you can only prosecute the leaders is a rule for prosecuting aggression at the ICC, it's not necessarily a rule, in my view, for prosecuting aggression in national courts. So I think a lot of states have rules that say the crime of aggression can be prosecuted and here's the punishment, and those same states have rules on aiding and assisting an international crime. So what I'm suggesting is that it could give some companies, and their directors more importantly, pause for thought. CJLPA: I think it's about time that corporations are held responsible and used as an example that, just because one is dealing with a corporate body does not mean that there are no individuals behind it who are making these decisions, who are playing that part in these armed conflicts. It's not just these military leaders that are directly involved. In 2018, the ICC gained jurisdiction over cases under the crime of aggression charge, with the important exception that it cannot exercise its jurisdiction over an actor from a non-signatory state. As a result, the international community has turned to the idea of a special tribunal for aggression to hold Russia accountable for its invasion. How optimistic are you regarding this path, and does this focus on a tribunal weaken the role of the ICC as an institution? AC: I don't think it weakens the ICC as an institution. The ICC has plenty to do already, and if one were to give it the extra task of creating a dossier and prosecuting the crime of aggression at this point, it clearly has to diminish how much attention it can give to war crimes. On the other hand, having said that, politically speaking, it does look strange that the ICC can't prosecute a Russian leader for the crime of aggression, even if Ukraine were to be a party to the statute. That seems odd. And it seems, to the media, that the ICC is really selective in that it doesn't go after powerful leaders, it only goes after other people. It's one of the peculiarities of the 2018 entry into force of the aggression amendments, as you say, is that you can't prosecute somebody from a non-state party. And there are a lot of other complications to do with jurisdiction over aggression. And I think it's very unlikely that we will see prosecutions for aggression. It's not just that Russia, China, and the United States got a free pass. It’s that most states are not going to ratify the amendment, which would allow for prosecution. So also British leaders and French leaders are not going to be prosecuted. So, I think one will just have to accept that states are not prepared to give an international tribunal jurisdiction over their leaders for aggression. Yes, you can say it's the fault of the ICC, but it's not really, it's the fault of those states who have steadfastly refused to allow the ICC to do this. So if you want to blame people, you can blame the British government, the American government, the French government, but you can't really blame the ICC as such. Now, is it a good idea to have something in parallel? I would say yes, it will allow the story of the aggression to be told, it will allow for the identification for those who have been most involved in planning and executing it. And my hope, would be that, again, that might give people who are thinking about planning an illegal use of force, pause for thought, because even if it comes 10 years after the invasion, or 20 years, the charge of aggression is going to stick to them for the rest of their lives, whether or not they actually capture somebody and put them in prison. But the process of preparing the prosecution highlights that there is no right to go to war. It's a crime. And that, I think, focuses people's attention. And again, I think, the knock-on effects for those who are a bit more junior, or who are involved in influencing and shaping the policy, and in the commercial world assisting such an aggression, is perhaps where we should be focusing, because those are the people who are going to be, in a way, more vulnerable, because they want to travel and they have assets. It's more likely that those assets could be frozen and taken away from them, and given a choice, ‘Do I assist in this war of aggression or not?’ I'm hoping that some people will decide not to, when having seen that a special tribunal on aggression comes after a range of people and not just the president or prime minister. CJLPA: In recent developments, and in the war, we have been made more aware of the Russian funded Special Forces by the name of the Wagner group. What is their legal status? Are they mercenaries? Or are they, in effect, Russian Armed Forces? What legal framework governs their status? And could Russia have certain responsibilities in relation to these crimes and how we can hold them accountable? AC: Well, it's a fast-moving area. If we go back a while to when Wagner was disconnected from the Russian state more formally, they're often described as mercenaries. The problem with that is, of course, politically, and in the media terms, that they do look like mercenaries, but technically, as a matter of international law, the definition of mercenaries found in Additional Protocol I to the Geneva Conventions says that you can't be a mercenary if you are a national of a party to the conflict, or a resident of territory controlled by a party to the conflict. So members of Wagner who are Russian nationals, or even people of another nationality resident in the Donbass, say, which is controlled by Russia now, can't be a mercenary by definition. If captured, they would have to be given full prisoner of war status, and they couldn't be prosecuted as mercenaries because they wouldn't fit that definition, and anyway, they would have prisoner of war status. So that’s a bit complicated. On the other hand, you might have somebody from Syria working for Wagner, which happens. They would be a mercenary and would not get prisoner of war status. Now, the sort of more complicated part is that another way in which you lose your mercenary status, if I can put it like that, is if you're integrated into the armed forces of the state. So to the extent that Wagner are now integrated into the Armed Forces of Russia, and it seems, according to the media reports, that they will come under the Ministry of Defense, and so on, and be under command and control, then even if they are paid, and they don't look like the armed forces, they would be the armed forces, and they wouldn't be mercenaries, whatever their nationality. So it's super complicated and you almost have to go case by case and day by day, because on one day, they might be integrated and, in the past, they weren't. Now that's the situation in Ukraine. It gets much more complicated when you go to Mali, or one of the countries in Africa where Wagner are operating because there, there's no question of it being an international armed conflict and individual Wagner fighters having prisoner of war status or losing that if they're mercenaries, and there's an African convention on the elimination of mercenarism and a UN Convention on the use of mercenaries , which might create criminal responsibility for some of them. But again, you'd have to go situation by situation, and almost individual by individual as well because there are questions of motivation of the individual that are part of the mercenary definition, whether they're doing it just for money or for some other reason. So it gets very complicated. To answer your second question, the extent to which Russia is responsible, if they become members of the Armed Forces of Russia, then Russia is automatically responsible for them. If they are not members of the Russian Armed Forces, and they are being directed by the Russian government, then under the law of state responsibility, Russia will be responsible for what these individuals do during the operation that is directed by Russia. The law on that is found in the Nicaragua vs. United States judgement of the International Court of Justice and in the law on state responsibility. Again, it can get quite complicated, you have to know which operation we're talking about. But in short, the Russian government would be responsible as a matter of international law for those operations which they have directed, both for the violations of human rights law and for the violations of international humanitarian law. When it comes to the accountability of the individuals working for Wagner, there we forget, sometimes I think, that they can all be held accountable for any war crimes or crimes against humanity, or act of genocide even, if that was the appropriate crime, at the International Criminal Court. The International Criminal Court has jurisdiction over any of these crimes that happen in Ukraine, and obviously, in a lot of the countries in Africa where Wagner are operating. We could yet see individuals from Wagner prosecuted at the ICC, it's only the Russian aggression in Ukraine that can't be prosecuted at the ICC, but the other crimes can be. And to the extent that their crimes are grave breaches of the Geneva Conventions, going back to my earlier theme, they could be prosecuted anywhere in the world. So the individuals in Wagner are a bit different from the leadership of Russia, say, in that they do want to and need to travel around the world. I would say they're vulnerable to being arrested—those who are wanted for war crimes—to being arrested and prosecuted anywhere, because if they're grave breaches, they'll be crimes of universal jurisdiction, and in addition many states will prosecute crimes committed in internal armed conflict, maybe committed in African countries where Wagner is operating. We have recently had quite a few prosecutions in Switzerland, related to Liberia, where people are being prosecuted for crimes committed in non-international armed conflict under Swiss law and international law. CJLPA: From your point of view, how can justice be served for victims when we can only try these international crimes in the aftermath of the war, when they have already been committed, lives were lost, and most victims have yet to obtain some form of financial redress? Especially when considering the extensive financial resources and the many years it would take to see accountability. In other words, there certainly has to be balance when prosecuting crimes of this gravity, which takes time, it takes a lot of money, but essentially, what does international criminal law and justice mean in international criminal law? AC: I think we have a sort of traditional understanding of international criminal law as coming in the transitional justice phase, or post-Bellum phase. The image that always comes to mind is those pictures of people being prosecuted in the Nuremberg court or the post-Rwanda prosecutions. But in fact, the Ukraine conflict is reminding us that people can be prosecuted in the middle of an armed conflict, and there have been some prosecutions in Ukraine. I wouldn’t be surprised if we see a prosecution at the ICC before this conflict is over. I don't think we should assume that prosecutions only come at the end of a conflict when you have a winner and the winner gets to prosecute. I think this conflict is a bit special in that we have a developed system of international criminal law up and running, and we have expectations that there will be prosecutions, so there were prosecutions recently in Ukraine regarding Bucha, war crimes allegations. If I've read it correctly, these were crimes held in absentia, so they didn't actually have the defendants, but this may be a new way of dealing with the truth, of allowing witnesses to have their say, as you point out, before things are forgotten and things have moved on. I think we might be seeing a new type of international criminal law where it's as much about retribution and punishment, as about victims airing their grievances, and a story for the historical record, and identifying perpetrators who, even if they are not immediately captured, are going to find it increasingly difficult to move around the world. It's difficult now to go through borders with facial recognition, and with electronic passport controls, even when you get on the plane, you're being electronically scanned. I think it's going to be a different approach, rather than a show trial where you have people standing up in photos, it might be more about casting the net wider, and not knowing exactly when somebody is going to get caught. I might stress that these war crimes and crimes against humanity that we're talking about are crimes which have no statute of limitations according to international law. You are not supposed to say, well, after 10 years or 20 years, it's impossible to prosecute that. So you might think you've gotten away with it, but you'd also be aware that in 20, 30, 40 years’ time, somebody might recognise you as a person, even if you've changed your name, and that your freedom then might be curtailed. CJLPA: You've written about the limits of human rights protections in times of armed conflict. Has the advent of social media and real time documentation of these abuses increased accountability? And can those tools be used to further increase the reach of human rights protections in terms of conflict, and even in relation to witnesses and the use of such evidence in court? AC: Yes, in my experience, it is increasing accountability, certainly in the sense of people being held to account, even if it's not leading to so many prosecutions, but social media has enabled investigators to know who was where, and when. If they've posted a picture of themselves at a particular site, giving a speech, encouraging people to do certain actions, then that's part of the story. They can't say, ‘I never gave that speech’, or ‘I wasn't at that place on that day’, because it can all be pieced back together. The other real time element in this is not just the photos, the postings, and the videos, but also the satellite imaging, which is a new aspect to human rights investigations. So if you are trying to prove that a village was destroyed on a particular day, and you know that troops from one particular party to the conflict were there at that time, and you can see them moving, then you can show a before and after satellite image that builds up a picture in a way that interviews with witnesses can't quite do so, in terms of the persuasiveness of it. So a lot of the technology, it's not just related to people posting—I think people will become more wary as they realise that they're implicating themselves—but it's also the technology of having an eye in the sky, to use that expression, which will be able to show who moved where and what the results were, and I think that is quite important for accountability. CJLPA: On a final note, what do you think the future of Ukraine would look like, in an ideal world, or how do you think the conflict would progress? Do you think we could see an end to it anytime in the near future? AC: Well, I would hope for an end to it as soon as possible. It's not really for me to design the future of Ukraine, but I suppose I would want it to be under the rule of law, I would want it to be unoccupied, and I would want it to be peaceful. CJLPA: Thank you very much once again for giving us your time this morning and for providing highly valuable insights on the Russia-Ukraine situation. AC: Thank you for such a probing set of questions. This interview was conducted by Shahad Alkamas, who graduated in 2021 from Middlesex University and obtained her LPC the following year at the University of Law. In addition to her Legal Researcher role at CJLPA, Shahad is currently working as an in-house litigation paralegal, with previous experience in various legal fields such as personal injury, immigration, and civil litigation. [1] Rome Statute of the International Criminal Court 2002, Article 28 reads in part: ‘Responsibility of commanders and other superiors: A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution’.

Mohamedou Ould Slahi was detained at the inhumane Guantanamo Bay 'Detention Camp' for 14 years without charge. For 14 years, Mohamedou was tortured by the US military: he was severely beaten, sexually assaulted, water boarded, threatened, sleep deprived, and isolated. His lawyer, Nancy Hollander, helped him expose these crimes against humanity committed by the US and tell the world the truth about what was happening. Mohamedou was freed in 2016 and has since dedicated his life to human rights activism. Guantanamo Bay remains open to this day where detainees are still held without charge and tortured by the US. CJLPA: Welcome today, Mohamedou Ould Slahi. I’d like to begin by thanking you for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art to expose the crimes you endured in Guantanamo Bay. As a brief introduction, it began when you were brought in for questioning by the Mauritanian authorities on 20 November 2001, after which you were detained and eventually transported to US military custody, in the Guantanamo Bay detention camp in Cuba, on 4 August 2002. After being arrested without charges brought against you, you then endured for the next fourteen years at Guantanamo Bay the cruellest crimes against humanity, as you were isolated and subjected to the most degrading, inhumane, and painful acts of torture. You were only finally released in October 2016. Whilst in prison you wrote a memoir in 2005 which the US government declassified in 2012, with numerous redactions. The memoir was published as Guantanamo Diary. The film made in your honour, The Mauritanian, depicts the experience at Guantanamo Bay based on your book Guantanamo Diary and provides an overview of Nancy Hollander as she took your case pro bono to defend you. You are now a survivor of Guantanamo Bay and continue to live life to the fullest despite the years taken away from you. So it’s an honour to have you here today, and we will discuss this experience to continue spreading awareness of human rights. To begin, could you share the experience you had when you first arrived at Guantanamo Bay? What did the authorities tell you during your initial arrival? Mohamedou Ould Slahi: Thank you so much, Nadia Jahnecke, for having me. I vividly remember, as if it were yesterday, when those two cops came to my home. It was Ramadan. To be precise, it was the fourth of Ramadan, and I was really tired. It was around 4pm and I had just come back from work. It was only me and my mother; no one else was at home. I was getting ready to take a shower and just get some sleep because we stayed up until very late in Ramadan. We use Ramadan as a season to eat more than we usually eat, to be honest, and to have more entertainment, which very much defeats the purpose of Ramadan [laughs]. So, two cops in plain civilian clothes, ‘Mukhabarat’, asked me to come with them. This is not a country ruled by law; it is a country ruled by the military. They did not show me cause, and they did not show me an arrest warrant. I could see the fear in my mother’s eyes, but I didn’t fully understand it. I was really afraid, but I didn’t think it was going to be really that bad because it was not my first time being arrested. So, I went with them, and then one of them drove with me, and the other one followed us or drove in front of us. I don’t remember, but I could see my mother in the rearview mirror as she disappeared. It was I think after about 200m when we turned right. I always forget whether we turned right or left, but we turned right and then we turned left. That’s why I forgot. And that was the last time I saw my mom, the very last time. I never thought that this would be the last time I saw her. She was really very sick; it took her years to go to the hospital. Many years, after many years in prison, they came to me and told me that she died and she passed away. They came back again and told me my brother, by the way, passed on too. I cannot describe to you the pain. The pain that I experienced, I remember it was so, so bad; I couldn’t hear anymore. The guys who came to me to tell me the news were in these military-like very special clothes and very well-maintained. They had a priest with them because we are not allowed to have Imams, and the priest was from Sudan, I think they took him because he spoke Arabic. He started to talk to me about it. I don’t know what he was talking about, honestly, because I just wanted them to go away and leave me alone. I remember I was in so much pain I needed to punish my body. Then I started to sing the Quran, I think for about 12 hours straight. I took one break until I completely collapsed. What was in between was a lot of pain. I was first taken to Jordan for eight months incommunicado, where I was not allowed to see anyone or talk to anyone. This is so shameful, as this is like humiliation upon humiliation, that you are being tortured and humiliated by your own people. This is more than anything; we say in Arabic [speaking Arabic], ‘When injustice comes from your next of kin, it’s worse than being cut into pieces by a sword’. Then I was taken to Afghanistan; they tried to take people to free Afghanistan from so-called terrorists, but I was taken to Afghanistan by force. From Afghanistan, I was taken to Guantanamo Bay, and I was the first candidate for capital murder, the first ever. I remember, after so many months of torture and forced confession, one staff, First Sergeant Shirley, came to me and told me that I was being chosen for the death penalty. You may ask me, ‘Was I afraid? How was my feeling?’—I tell you, I didn’t have any feelings. I was numb. I was just listening to him, looking at his lips moving, and I just wanted the session with him to end so I could go back and live in my head, in myself. All of this happened, in all those 15 years, completely outside the rule of law, completely free of any judicial oversight, meaningful judicial oversight. I was never charged with a crime, ever. When I finally got to see my case for the first time in front of an independent person, a judge, who could see all the evidence, even the classified evidence, he ordered my release. Those are the facts of the case. I was the only detainee who was ordered to be released. He was tough; he saw the case for what it was, a complete hoax. CJLPA: Wow, there is a lot to unpack from that, so thank you. Before we delve into your experience in Guantanamo Bay specifically, I found it quite interesting how you mentioned that your own people, your own kin, left you and abandoned you. Jordan assisted the US in detaining you and sending you to Afghanistan, which ultimately led to your transfer to Guantanamo Bay. Why do you think they helped with this or contributed to this? Do you believe it’s a result of the fear of other international countries, particularly the US as the world superpower, and their influence? MOS: One of the bitterest experiences I faced is that in my part of the world, we have real problems. The absence of democracy, the absence of the rule of law—we know this; it’s like an open secret. This problem is exacerbated by them being in bed with very powerful countries like the United States of America. For better or worse, the United States of America is the leader of the free world, and their association with the most distasteful—I don’t want to say dictators, just authoritarian regimes, to be on the safe side—is completely hurting the local people. Because this so-called war on terrorism is used, at least in my part of the world, to crush political dissent. People who peacefully want democratic change, who want to have their votes counted, and who want to limit the power of the military general, the king, or the president, are labelled as Islamic extremists or terrorists and are being crushed. When I was arrested, there was no Guantanamo Bay because the United States was discussing with other countries—they were discussing with the government executive branch the power of places to put the people they capture in a place that is not subject to the rule of law. That was the whole idea. While waiting at that place, they already had places where they worked, like in Arabic countries. We know Jordan is part of them, my country and Morocco are part of them, even Syria was part of them, Egypt, and Pakistan, of course, and so on. There are people who I met and who were delivered to those countries, and this is really shameful. The point is if they couldn’t take me to the US because the government, the FBI, and the CIA knew that there was no evidence—I didn’t do anything—but, you would ask, why then did they capture me? Because they want information; they want to ask me if my cousin is friends with Osama Bin Laden. I don’t need to have rights; I’m from Mauritania, and no one is defending me. My country certainly is not defending me. CJLPA: When you first arrived at Guantanamo Bay, a detention site where, as you mentioned, the rule of law doesn’t exist, what were the prison conditions like? Can you describe what it was like when you first entered there? MOS: So, when I was interrogated in Bagram, I didn’t speak English, so my English was very limited, and I didn’t understand. When they asked me if I needed to use the bathroom, I spoke German, and ‘bathroom’ in German is very close to ‘Badezimmer’, where we take a shower. I thought, ‘Wow, Americans are good people; they want to allow me to take a shower’. I said yes, and they took me to a barrel full of human faeces, an open barrel, and told me, ‘Yeah, you can use the bathroom’. I said, ‘Ah, okay, this is the bathroom in English. Okay, now I understand’. We didn’t have toilets; we only had very big barrels brought in as toilets for the detainees. They brought in an Arabic interpreter who asked me what languages I spoke, and I told them I spoke Arabic, French, and German. They said, ‘What? You speak German?’. I said, ‘Yes’. Then they brought a CIA agent who spoke German, and he was the one who interrogated me. He felt a kind of relationship with me because he was German, and we were the only two people who spoke German. He told me, ‘You are screwed either way. I’m just going to be honest with you because even if you are innocent, you are not getting out of this’. He told me, ‘I don’t know whether you’re innocent or not. Maybe you’re innocent, maybe you’re not. But either way, you are not getting out of this’. I think he told me, or it was already decided, that I would be sent to Guantanamo Bay. I was really happy after 8 months in Jordan and the pain I saw in Bagram. In Bagram, I was in shackles for 24 hours, I peed in my cell on the carpet because there was no toilet. Because they had to take me to another place, and because I was in isolation, there was no toilet, so I peed everywhere, and my room reeked of urine. But I was just happy because he explained to me that Guantanamo Bay is under the full control of the US. I told myself, ‘This is the US, so they cannot harm me because now I am under US custody. Not anymore; they won’t blame it anymore on Jordanians and the Afghanis’. But I was in for a very big surprise. The trip was torturous, full of beating and humiliation. When we arrived, the sun of Guantanamo hit me, and it felt really good. I couldn’t see anything, but I could feel the sun on me. Then they took me to interrogation, and in the beginning, it was really normal, almost 24-hour interrogation. After about five months, they turned the heat up and brought a special FBI team who interrogated me for four months. Then they told me, ‘Mohamedou, we are not getting anything out’. They told me if I didn’t cooperate with them, they would torture me. I said, ‘The sooner, the better’. I knew what ‘The sooner, the better’ meant because, by that time, I had picked up a lot of the English language. The decision to torture me was a foregone conclusion anyway. They took me to a place where they brought a special team, the torture team. They took me to India Block, emptied it from all detainees, so it was only me. 70 first days: no sleep, 24 hours. Sexual assault, stripping you naked, and beatings so bad, I thought I was going to die. After 70 days, they took me on a boat ride and brought another team, an Arabic-speaking team. One guy had an Egyptian accent, and another guy had a Jordanian accent. The guy with an Egyptian accent said he was Egyptian, and the other guy said he was Jordanian. They threatened to take me back to Egypt and Jordan, but they didn’t know I had already taken that path, and there were no miracles. Richard Zuley, a Police lieutenant from Chicago, came to me and told me he was going to kidnap my mother and take her to Guantanamo Bay. He also insinuated that he could not secure her safety in an only male prison. I completely unravelled and told him I would tell him anything he wanted. That’s when I gave them the false confession. First Sergeant Shirley helped me write it. This false confession was the biggest challenge for them because, in dissemination, they sent the information to different agencies like the FBI, CIA, and others. They were all saying ‘no, he didn’t do this, we know he didn’t do it’. Richard Zuley was so angry because they said, ‘You want to convict him, you want the death penalty, this secures the death penalty, why are you asking questions?’ They all asked for a lie detector test. I took the polygraph twice and told him I didn’t do anything. Zero. Zilch. Nothing. Nada. I passed the test twice, and after the test, there was a complete change in my situation. They started to drive down the torture and decided that I could not be released ever because of what I saw and experienced. In 2012, the Mauritanian government asked for my release, and they were told, ‘He is un-releasable’. CJLPA: Because, as you said, at that point, you had become a witness to all the crimes against humanity and what was happening in Guantanamo Bay. So once they released you, the whole world would know what was occurring there. MOS: Yes, that would be a challenge to the narrative, to their narrative, yes, propaganda. CJLPA: It’s beyond the international community, the crimes that they committed, and how they tortured you while you were there. What do you think they were told in order to commit these barbaric and inhumane torture crimes? To conduct them and still be able to sleep at night? Do you think it was brainwashing? Do you think they truly believed you were involved, or do you think it is just pure hatred towards a certain religious group and certain countries? How do you think they could do this? MOS: Let’s be cold and scientific about this. This is humanity, just human beings. This is not because they’re Americans or they’re French. When you start dehumanizing a group of people, there is nothing you can’t do to them. And this started with our faces being put out; they took very ugly pictures of us and put them out there. When I saw my picture, I said to myself, ‘This guy is a bad guy’ [laughs]. I don’t remember when they took this picture because I was held, and my face was swollen because of the beating. This picture is actually on the internet; they put it on the internet. And this is the person we are holding here, so those are evil people. Just the soldiers, the people who participate in the torture, and the people who ordered them are evil people. They would kill you in a heartbeat if they had a chance. So when you start with sleep deprivation, then sexual assault, then beating, they would always tell me, ‘We want to save lives’, but what they didn’t know is that I couldn’t save any lives. I didn’t do anything; I didn’t know people who are holding a bomb to kill anyone. And this goes on and on, and they are not doctors, and they don’t know. That’s why Abdul-Gul-Gul died from torture in the same room, in the cold room they put me in. It’s very cold; you could die. Because I was in this room, and they told me they would not stop pouring cold water on me until I talked. What they didn’t know was that I couldn’t talk because I was so cold; I couldn’t move my tongue. This is probably how they killed Gul Rahman, and in the same prison where I was in Bagram, they beat Dilawar to death; he was beaten to death. And other people we don’t know about, because according to classified documents, or at least some reporting, 20 people were never brought back; they were kidnapped and just disappeared. The people we know on record, about five people, we know died under the program of torture that I was subjected to. So, democracy is here for a reason. The rule of law is here for a reason. The reason is that we can never trust the government. We can never trust the government to do the right thing. The government always needs someone to control them: the judiciary. We know that this good, beautiful thing that we have now, that is democracy, protects me and protects you. We know that it has shortcomings; we know especially that it’s designed so that the judiciary has so much power over the judge, because when the judge said I could go home I was kept for six more years. The judge does not have the police and does not have the military. We can only hope that the government, the judiciary would respect the other branches of the government. In this case, the judiciary and the executive branch did not respect the rule of law, and in our country it’s the same situation. We know this game because we grew up in an undemocratic regime. CJLPA: While you were in prison, did you have contact with the other prisoners? Did you get to know anyone? Did you hear much about how they were detained and if they ever found out if they had charges brought against them? MOS: Very few contacts, because 90% of my time I was in total isolation. I met the general population for the first after ten months, but we were always in the cells all the time, so we didn’t get to meet or talk much. Of course, we shouted, we talked, and this was during all the interrogations. And of course, we talked about interrogations, and we were afraid. I didn’t know them, and they didn’t know me either. Then I was completely taken away from the general population. The only things I could read or had access to were the statements given to me by my lawyers, and the statements of other detainees that relate to my case. For example, there is a well-known detainee, Ramzi Shibh. Shibh was heavily tortured until he lost his mind. I know about his case because he made a statement, and my understanding, though I wasn’t allowed to see the statement due to blackout, is that he knows me, and we spoke about something like that. So I know about this kind of statement, and I know he was tortured because that’s what my lawyer told me. He was subjected to heavy torture. But I don’t know about other detainees who were tortured and talked about me. CJLPA: And it was only in 2005 that you got a lawyer, and this was Nancy Hollander, whom we also had the pleasure to interview, an international defence lawyer, and she took your case. Can you tell us a bit about what it was like when you first met her? MOS: Yeah. So, when they told me that I was allowed to see my lawyer, I was so happy because when I was young, I used to watch Married with Children and a little bit of Law and Order. I had this idea that Americans are humorous and respect the rule of law. So, I thought, ‘Ah, this was only a mistake, and then now they will release me, and then I will go home, and I will get a lot of money, like in the movies’. That didn’t happen, but I started to write to my lawyer, to write to her about my life. In just a few days, I wrote about 163 pages. When I finally met her, I remembered wanting to hug her, but I couldn’t reach her because there was a table between us. She stood there for what felt like an eternity. She didn’t know that I was shackled, bolted to the ground and unable to move because it was under the table, and she couldn’t see it. Then she brought another lawyer who spoke French, but I told her I didn’t need anyone to speak French. I can speak English. So, we started, and she asked me to continue writing. In two and a half months, about ten weeks, I wrote everything you see in my Guantanamo diary. When I sent it to her, she tried to publish it, but they told her, ‘You ain’t gonna publish this’. It took about eight years of fighting, and this is in a country that positions itself as the defender of freedom of speech. You can say anything, you can talk about violence, you can talk about killing the president—anything. But just my story, that I was kidnapped from home and taken to Guantanamo Bay and tortured, was not allowed to be told. I think that the American people deserve better than this, and I grew to know American people who are, by and large, fairly decent people and very good human beings. CJLPA: With your Guantanamo Bay diaries, what, in particular, did you find that they redacted? What were some key points that they chose to take out that you think should have been kept in, and that people should know about? Essentially, what were the main things that they were trying to hide from the world, do you think? MOS: So, there are things like the dates and the places they redacted. It made sense in a military context; they don’t want people to know when they kidnap you or where they take you, the timeline. However, some things didn’t make sense. For instance, that it was so bad that I cried, or that I brought some poems, and they took the poems out. They also removed personal pronouns, and if you referred to a man or woman, they took that out. There was a very long portion, I don’t even remember anymore, but a very long story that they removed. Many years later, when I tried to restore the damage, I didn’t know all of this; I forgot a lot. CJLPA: When you first had Nancy Hollander take your case, did you face any challenges in trusting her based on your previous experiences in prison with the US government? Or was there an instant connection when you saw her, and you knew she was on your side, ready to help you? MOS: After 4 years of torture, pain, and suffering, you have nothing to lose. I trusted Nancy from the first day, along with her colleagues—Nancy was with a team, so I will always give all of them credit. However, Nancy, by nature, is a mistrusting person. So, logically, she looked at me and said it was impossible that they kidnapped him, tortured him, and spent so much money hiding him in different countries if he didn’t do anything. Then I kept telling her I didn’t do anything, not even like, ‘Oh, it was a mistake’, or ‘It was the wrong place at the wrong time’, nothing. This was very hard to digest. But I told her you will know this when you know my case. When she saw the investigation, and I think there was an investigation, and when she saw the torture that I was exposed to and the resignation of the prosecutor who was supposed to put me to death, then she knew. He was a prosecutor, a marine, and there was no reason for him to side with me unless he believed in the truth. That was a significant factor, among many others, in understanding the facts of the case that kept trickling in, I would say. CJLPA: Concerning the film The Mauritanian, it would be interesting to get your perspective on how you think the portrayal of Tahar Rahim was of you. Was it an accurate representation? What was it like seeing him in this film, and enduring what you endured at Guantanamo Bay? MOS: It’s a very good way, to brag and tell people, ‘Look how I look’, and then, maybe even very tempting to take his photo and put it as my profile picture. And it’s another way to tell my story. We are completely vilified in this part of the world, and it’s not very common that you see anything positive about us in Hollywood. Seeing Tahar Rahim and Jodie Foster portraying someone who did not hurt anyone is something I want to convey—that my family and I did not grow up to hate anyone. We grew up to love people, love life, and live peacefully. Of course, I was a young man, and I wanted to help Palestine and Afghanistan, with everything. But doing that, I never killed anyone, never did anything to anyone. Of course, I wasn’t always very careful about what I said, but that’s okay. Why is it okay for young French people and young American people to be stupid and say stupid things, but it’s not okay for Saudi people or Moroccan or Mauritanian people? I don’t accept that. CJLPA: And specifically, going back to the film, naturally Hollywood films can’t depict everything. What do you think is something important that could have been included in the film, something from your diary that wasn’t shown? Something crucial that people need to know about is what happens in these camps. MOS: You can’t depict 70 days of sleeplessness in a movie; that would be too long. And I was in prison for 15 years. 15 years. I think Kevin, my good friend, did a very good job. They asked me a lot because I told them I don’t interfere with the work of movies since I’m not a movie maker, but they asked me, and I shared my opinion. They very much considered everything I told them after doing the research, of course, and they talked to the other side a lot. CJLPA: Were you surprised, or did you have hope throughout the case working with Nancy Hollander that you were going to win? Because, of course, you knew you were innocent and you knew they didn’t have evidence. But at that point, it was quite clear that it didn’t matter to the authorities whether there was evidence or not. You’d already seen too much. So throughout the case, were you still hopeful nonetheless that you would have justice? MOS: You know, I learned everything about the American justice system the hard way. In the Western world, there are two philosophies. There is a common law, as it is practised in the United Kingdom, and this is like common sense: what decency dictates. It doesn’t need to be written, but when people think this is bad, it should be bad, hence the jury, because the jury decides the law. Then there is what they call Napoleonic law. Napoleonic law is based on Sharia, but don’t say that in France, because they will hate you for it. Napoleonic law dictates that there cannot be a crime without being defined. America is neither common law nor Napoleonic law; it’s a mixture of both, and that’s why a lot of the crimes that they charge the detainees of Guantanamo Bay with were not defined, like material support of terrorism. That was not defined as a crime. So, when the judge asks you in the US if you are guilty, you have to understand the question, which is not ‘Did you do this or not?’. The question is, ‘Did you commit a sin, or didn’t you commit a sin?’. The commission of a sin could be you feel bad that you didn’t prevent this crime from happening, or it could be that you put the gun to the head of that guy and put 10 bullets in him, but you were defending yourself or your family and you were in the right. In both cases, you say ‘I’m not guilty’, or ‘I’m guilty’, so that’s the first difference, because in most European countries, the countries that practice the Napoleonic law, there is no pleading. They don’t ask you whether you are guilty; they only look at the facts, what happened. That’s it. That was my first shock. Then it came to me testifying. After I finished the summary, I thought ‘I am screwed, this is not going well’. Because he kept asking me, for example, ‘did you watch jihad movies when you were young?’—I said yes. ‘Did you read jihad magazines?’—yes. And then, I was—I wanted to cry because I didn’t want to say yes or no. If you ask someone a line of questioning and you limit them to yes and no, you can make them come to any conclusion, no matter what the conclusion is. And I was not allowed to explain anything; he only asked yes or no. And I think the first thing I would do if I were responsible for the justice system, would be to forbid ‘yes and no’ questions in cross-examination. Later, when the judge interfered, he said, ‘Why did you ask him this question about whether he saw a movie or something, why?’. And then the prosecutor told him, ‘to go for the jugular’. And the judge said, ‘But you ain’t got no jugular, do you?’ And then the prosecutor said, ‘No, I don’t’. That’s when I knew that I was right all along because the Prosecutor admitted in front of the judge that he didn’t have anything on me. CJLPA: This will be the last question before you have to leave. First of all, there are various other detention camps around the world where illegal acts by government authorities are continuing. What comes next? How can the world put an end to this? What actions can people take, and what role can lawyers play? How do individuals become involved, exert pressure on politicians, and bring attention to these crimes to help save lives and support those who have undergone such experiences? MOS: I believe this is a very insightful question, and it encapsulates everything. How can we prevent this? I think the government, as it is currently acting, is not working for us. I am from Mauritania, a very small country. Mauritania lacks values that align with the broader perspectives of the American and UK political systems. As a Mauritanian, it occurred to me that I need to reach out directly to people like you and say: ‘You guys are really hurting me’. What can we do to prevent this hurt that is coming to me and the people here? My philosophy is that we need to undercut the government and build a very broad grassroots movement that is cross-cultural and spans across countries. We should talk to each other, completely ignoring the government, focusing on securing our safety and promoting human rights worldwide. Nowadays, if someone is imprisoned in Mauritania, Morocco, the US, or anywhere else, we need to address it immediately. I wish for a world where we unite as one, even elect someone we trust, without borders. We don’t care about borders, and we discuss how to move forward, combat human rights violations, and address wars. All these things are not good for us. CJLPA: Thank you very much, Mohamedou Slahi. It was an honour to have you here today. Your strength and bravery are truly extraordinary, and survivors like you, sharing your fight and story, will help make a difference in the world. This interview was conducted by Nadia Jahnecke, Legal Editor and Founder of Human Rights Volume of CJLPA 3. In addition to her role at CJLPA, Nadia is currently working as a Trainee Lawyer and will qualify as a lawyer in England and Wales in March 2024.

Nancy Hollander is an internationally recognized criminal defense lawyer from the Albuquerque, New Mexico, firm of Freedman Boyd Hollander Goldberg Urias & Ward PA, and an Associate Tenant with Doughty Street Chambers, London, UK. The inspiring story of her efforts in freeing Mohamedou Ould Slahi from Guantanamo Bay, where he was held from 2002 to 2016 without charge, were recently captured by the legal drama film The Mauritanian, in which she was played by Jodie Foster. CJLPA: Welcome today, Nancy. I’d like to begin by thanking you again for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art, to discuss your career as a human rights criminal law defence lawyer. Throughout your career, you’ve been involved in the most high profile of cases, representing clients in a wide range of criminal cases, involving white collar crime, drug trafficking, murder, and terrorism. Equally, you are a highly respected and renowned lawyer in international human rights law, having represented clients before the European Court of Human Rights and the United Nations Human Rights Committee. Inevitably, there are many legal topics to discuss based on your work, but in the interests of time I thought that in today’s interview we could focus specifically on your work in defending terrorism, and in particular the implications protecting human rights, or really the lack thereof in such cases. Based on that, I’d like to begun by asking you why you think it is that when dealing with the crime of terrorism it is treated so fundamentally different in a court of law compared to other barbaric crimes such as murder, rape, or kidnapping. Nancy Hollander: The fundamental difference between terrorism and other crimes, and why I don’t think we should have the crime of terrorism, is that it always looks at a community, either a racial community, an ethnic community, or some other community. It’s not a crime involving one person, so even if one person is charged with terrorism, it tends to include the whole community. That to me is the difference. It is a crime on top of another crime; It’s vague and it’s unnecessary. There has never been an international definition of terrorism and I doubt that there ever will be because no one can agree on exactly what it is. CJLPA: That’s interesting. Do you think you have this perspective in retrospect after working on terrorism cases or is that a thought that you had before taking on the cases? NH: Before I took on the cases I did not really think about it to tell you the truth. I was asked to talk about the history of the crime of terrorism at some seminar I was at in the Hague, and I looked into it and realised that my thoughts are not new on this. People have been saying for many years that we should have never had the crime of terrorism and I started looking into it more and I realised…You know you’ve heard people say one man’s terrorist is one man’s freedom fighter. Well, there is truth to that! And if you look at history, who is a terrorist and who is not? The founder of the US, George Washington, was considered a terrorist. Nelson Mandela was considered a terrorist. Jerry Adams, Yasser Arafat, I mean how many more do we need who were considered terrorists at one time but at the same time became heroes. So if you just charge people with what they’re accused of you don’t get into that issue. CJLPA: I’d like to get more specific in some of the cases that you have worked on, beginning with the Holy Land case. In this case you defended Shukri Abu Baker, who was charged with terrorism alongside other co-defendants. Could you briefly walk me through the main ways where justice and the rule of law were denied in this case? NH: There was no justice in that case. It’s the worst case of my entire legal career as far as I am concerned. Shukri and one of his co-defendants, Ghassan Elashi, are each doing 65 years in jail for the crime of feeding children. That is essentially what they were doing. The Holy Land case…I can send you an article I wrote, if I haven’t already sent it to you; which really outlines the whole history. It was a talk that I gave, that I made into an article. But they’re a case where they are charged with material support for terrorism. There was never any accusation that Shukri and any of his co-defendants committed any what we would call even ‘terrorist acts’. They didn’t blow up anything. They didn’t bomb anything. They were not accused of making antisemitic remarks, even. They were just accused of providing charity to people in Palestine and other countries and according to the government, by providing that charity they were somehow assisting Hamas. It was vague, there was never any allegation of them being related to Hamas. It was simply that they were changing the hearts and minds of the people, by the people they were feeding. It’s a tragic case and it’s an example of how they were accused of something that other people did. So during these trials, I can’t tell you how many times it showed the same bus being blown up. The same American flag being trampled on. But they were never accused of doing those things and during the trial it was clear that they didn’t do those things. Other people did those things. And that’s an example of how terrorism has become so broad that under an American case, humanitarian law, I can’t even assist some organization or individual who’s been designated as a terrorist on how to change that, how to come into the democratic process. By assisting them, I’m committing acts of material support. It’s a terrible case and other things happened in that case. It’s the first case in American history, US history, where an expert was allowed to testify in secret. Basically, we were not allowed to know his real name, we were not allowed to know who he was, we were told we couldn’t research him and yet he was supposedly an expert on Hamas. And that meant that there was no right to real cross examination and certainly no right to confrontation, which is something that is required in the US Constitution. The Sixth Amendment says everyone has the right to confrontation. Well, you can’t confront someone if you are not allowed to know anything about them. CJLPA: Based on what you have just mentioned about not being able to cross-examine the expert and also the video of the bus being blown up but there being no actual linkage to the defendants, how and why was that even admissible and what would you do in those situations when it is quite clearly against the law, but the judges are enabling it. Is there any way around it? NH: You can only do what you can do. You can try to convince the jury that the government is wrong; which we did in the first place. We got a mistrial. But then the government came back with four, maybe five, different pieces of evidence that were clearly more prejudicial than probative. That the appellant court said should not have been admitted, but then said it was a harmless error, which probably was a political decision on the part of the court. How do you confront that? I don’t know. You know, we will never give up on this case, we’ve gone everywhere we can with the courts but we can just hope for a miracle, clemency or something that happens, where they get out eventually. CJLPA: Further to how you said that this case seemed to be more political, does this experience make you feel that some legal decisions are pre-determined when the government gets involved, despite lawyers’ best efforts? And do you think there the rule of law can still prevail in such circumstances? NH: I don’t think the cases are necessarily predetermined, but throughout the process, the decisions that prosecutors make, judges make, are weighed against the defendants, certain defendants. Certainly Muslims in the US now, black people as far as we can remember, Native Americans. The US has never been a democracy for all the people. It’s a misnomer. People believe that at one point it was a great country and we have to get back there. Well, when was that? When was the rule of law applied to everyone? Native Americans were slaughtered, genocide. We started with slaves. It’s very hard to accept that the rule of law really exists for everyone in the United States. It’s true in other countries too. What we want to do and what we have to keep doing as defence lawyers is keep pushing, so that the rule of law does apply to everyone. And so in the case of the US, the US legal system does become a justice system, which it isn’t now. It’s not a US justice system, it’s a US legal system that provides justice sometimes and sometimes doesn’t. CJLPA: Based on that, how does a lawyer operate in a justice system where they cannot always trust it, because as you said the rule of law is not always going to be applicable to everyone? You take on a case and the case process that is occurring in the courts is going to be prejudiced. Decisions are going to be made that aren’t necessarily reflective of the justice system that the US is meant to embody. How does a lawyer take on that case knowing that that’s what’s going to happen? NH: There is always a point because there is always the possibility of a miracle, and I don’t mean miracle in a spiritual sense or religious sense. I mean that there are people within the legal system on both sides who are good people and want to do the right thing. I represented a woman for many years in New York and the way I got her out of prison was through the help of the prosecutor. Mohamedou Ould Slahi is a good example of the assistance of the prosecutor. There are people on both sides in the criminal legal system who do want to see justice prevail and there are judges who want to see justice prevail. And when you don’t have those, you just have to keep fighting, and when you do have those you fight together to do everything you can to provide for the rule of law, and that’s what we have to do. You know, fortunately, in the US system, everyone is entitled to a lawyer. Everyone is entitled to have at least one person stand with them and fight against the power of the government. And that person can make a difference. It happens, it doesn’t always happen. Doesn’t happen enough, but we have to keep pushing so it will happen more and more, in the international system as well. CJLPA: Transitioning to a different high-profile case that you worked on, Mohamedou Slahi. After the 9/11 attacks, the Bush administration promised to find the terrorists responsible, no matter what the costs. Mr Slahi was arrested and was ultimately transferred to Guantanamo Bay Detention camp in 2002 and you got involved in 2005, I believe, to defend him. What prompted you or what intrigued you to take on this case specifically? NH: I wanted to do a Guantanamo case and I wasn’t really looking for one specifically. But this one fell into my lap when a lawyer in France, whom I knew, wrote and said he been requested by a lawyer in Mauritania to look into this case and was I interested. And I said yes. I knew virtually nothing about Mohamedou when I started. I knew what he was accused of and that was it. But this was the one that came to me, so this is the one I took. CJLPA: What would you say, when you began this case, were the key elements in your case strategy to prove his innocence? NH: You’ve got to remember he was never arrested, he was captured. There was no legal process happening here. There was no legitimate US court happening here. He was captured in Mauritania. He was taken to Jordan, where he was tortured for seven or eight months. Then rendered to Jordan, rendered to Afghanistan, rendered to Guantanamo, tortured in Guantanamo, interrogated in Guantanamo, and ultimately the court said that he and others could file petitions for writs of Habeas Corpus. But the government’s position was, well they can file them but we are never going to answer them. And it wasn’t until 2008 that the Supreme Court ruled in the Boumediene case that the government actually had to answer these petitions. And then we at least had a legal forum in which to conduct the case. But there was never a real one; other than the Habeas case, which we won in 2009, there was no legal process happening here. CJLPA: As you said, it was based on the Habeas Corpus, that you were able to take on this case and essentially go to court because the US actually never charged Mr Slahi for the crimes that they alleged. Do you believe that, based on that, it was irrespective or irrelevant whether or not, particularly Mr Slahi but also other detainees in Guantanamo Bay, do you think it was irrelevant in such circumstances when such due process was denied? NH: Yes, it became irrelevant and it’s still irrelevant. There are still thirty or thirty-one of them in there. Seventeen of whom I believe are already cleared for release and all but five, six, seven, eight maybe have never been charged with any crime. They have been there since 2002. That’s not a legal process. That is not the rule of law being carried out. If some American/US citizen is in a foreign country and being held for 20 years without being charged, the US government would go crazy. And yet that’s what it is doing and has been doing and people have been tortured. We were able to get a number of those people out and people were tried. One person has been tried, convicted, his case reversed. Another one pleaded guilty, his case was reversed. I have another one there who is facing the death penalty and there are 9/11 guys that are there and are a couple of others who are facing charges in this military commission. But the military commission is not like any court that is structured under US law; it’s under the Uniform Code of Military Justice for Soldiers. It’s not under the federal rules for the US. It’s a made-up court, and due process doesn’t apply. How do you have the rule of law when due process doesn’t apply? CJLPA: Why do you think, after everything is exposed in Guantanamo Bay, that this prison system still exists and how does the US government get away from that? NH: The US is the bully of the world. The US has troops on over 150 of the 200 odd countries on this planet, on the ground. So the US gets away with whatever it wants, basically. And that’s how it has gotten away with this. The US stands up and talks about the human rights violations in China, the torture of the Russians, Cuba, and yet the US is as guilty or more guilty than any of these other countries but it just can get away with it because of its power. Of its economic power, of its strategic power, and that’s how it gets away with it. Empires rule. That’s been the history of the world. CJLPA: So in terms of the next steps for Guantanamo Bay and supposedly shutting it down. Do you think it means more lawyers needing to get involved in these cases and trying them or is it more starting at the root of the problem and trying to work with the politicians and putting more pressure on them? Where would you see the ultimate change factor? NH: Everyone in Guantanamo who wants a lawyer now has one and has had one for many years. And these lawyers keep fighting and that’s how we end up with one or two getting out once in a while. President Biden promised to close Guantanamo, President Obama promised to close Guantanamo. Neither one took decisive action. President Obama is responsible for Mohamedou spending another seven years in prison, because we won this case, A lot of people were winning the Habeas at that time and all the government had to do under Obama, Obama’s Justice Department, Obama’s Attorney General was just not appeal. They go home. They wouldn’t have to worry about what country they go to or where they go. They would get out, And yet most of them were appealed and so Mohamedou sat there for another seven years. And even after he won the second thing which was not a court, the Periodic Review Board, which was six intelligence agencies that found unanimously that he was not a significant threat to the US or its allies, it took several more months to get him out. And then he did not get a passport for three years because the US, as it did with all the countries, told Mauritania they couldn’t give him a passport. So, the US just has its claws everywhere and all you can do is keep fighting and that’s what we continue to do. I fight for my other client, Ibrahim Al Nasiri, in the international court and the Commission lawyers fight for him in his criminal case. The other lawyers who represent the defendants in the criminal cases or in the Habeas cases continue to fight for them. We continue to try to find places that will take them under these strict US rules. And you know there were a number of, and still are, Yemenis in Guantanamo. And they at one point were beginning to go home. And then a Nigerian guy tried to light his underwear on fire in an airplane over Detroit. And he had been recruited and got the equipment that he had from a Yemeni guy. So President Obama said, no more Yemenis go home. Well, that’s collective punishment. And that’s what happened and they got stuck there. And now there is almost no Yemen for them to go home to. They have to go to other places. CJLPA: Despite the disappointing outcome with Mr Slahi and how the Obama administration appealed it, how do you remain motivated in those circumstances? What did you learn from that case and defending Mr Slahi that you can now apply in these current cases where you are continuing the same fight, where you are working for a system that does not always respect the due process and the justice system? NH: I learned a long time ago, in the law, that you just keep going and hope for a miracle, as I told you. With the woman I represented, Precious Paddel, all of a sudden we had a different judge and the prosecutor said now we have a chance and we did. In Mohamedou’s case, all of a sudden he was called up to the Periodic Review Board, one of the last ones called up. After years of thinking what we going to do, we’ve run out of things to do. Something appeared. That’s always possible. So you just keep going, and that’s what I tell lawyers, you just keep going. You keep thinking of new things, thinking of something else. What else can we do? How can we do something that brings this to people’s attention? In Mohamedou’s case, I believe his book, Guantanamo Diary, helped get him out. And the film, The Mauritanian, we now hope will help others get out because it gets the conversation back. People are speaking about it, thinking about it, talking about it. In all criminal cases, which is what I have been involved with, internationally or domestically. You just do everything you know to do, you investigate every corner. You do everything you have the time, energy, finances to do, so that you don’t miss anything. And it won’t work all the time. It won’t work a lot of the time, but it will work sometimes and you’ve got to keep pressing for it. You know, we recently celebrated the anniversary of a case called Gideon v Wainwright. Gideon was a guy in Florida who wrote a handwritten letter to the Supreme Court of the US and said ‘I didn’t have a lawyer’ and as a result of that case, everyone who is charged with a felony in the United States is entitled to a lawyer. Anyone who is going to go to jail, even for a misdemeanour is entitled to a lawyer. But that wasn’t the case before. Before Brown v Board of Education said separate is not equal and said there shouldn’t be segregation in the US schools; there was segregation. So people have to fight that fight. People still have to fight to make sure that a lawyer means a breathing lawyer, an awake lawyer, a not drunk lawyer. So those cases keep happening. But you just keep building on them and fighting for due process in the rule of law and that’s what lawyers do. That’s what we do. It is hard and it is depressing sometimes, often, and its dispiriting but you just keep doing it. CJLPA: Is there a way to also increase accountability of the US government? So to, say, sue certain officials in such circumstances? NH: Yes, there is a way to increase accountability through lawsuits and civil cases against police departments and against police, but those cases are also very difficult. I don’t do them but those are cases where things do change. Police departments have been forced to change through pressure. Pressure on politicians. Getting a politician who is on your side, to focus on those. Electing different people can make a difference. And in the case of Mr Al Nasiri the accountability that he wants, for people to know what happened to him because he was tortured in the CIA black sites. We had to go to the International Courts. And we have had a success. We won two hundred thousand euros for his family, through the European Court of Human Rights. We have a case in front of the International Criminal Court, a case in the UK, a case in front of the UN working committee on arbitrated detention and that will never get him out, but it will get accountability, where other organisations, people, politicians in other countries will see what happened to him. The US is never going to answer to any of those courts. Recently we heard that there was an arrest warrant against Putin from the ICC and I was reading quite a bit about it. And I noticed, they didn’t say ‘well, Russia doesn’t acknowledge this court’. Well, they also didn’t say that the US doesn’t acknowledge this court either… CJLPA: Why do you think it is that the US would never sign to these courts and these Treaties? NH: Because the US is afraid that that will bring out things that happened which the CIA did. That the US will find itself getting arrest warrants for individuals in the US who have committed war crimes. In fact, there is a law in the US that is euphemistically called the Hague Invasion Act and it is a law in the US that says if any American is locked up in the Hague as result of an ICC arrest warrant, US soldiers can go in and get them out. The US worked very hard to get the Rome Statute passed and then said ‘not for us, doesn’t apply to us’. CJLPA: On that point then, what do you think are the implications of the way the US currently operate in outside the international law by committing torture. Could this impact Americans that are currently wrongly detained in other countries such as Iran, where there is also torture? NH: Of course it can apply to other Americans and it has. We’ve seen other countries say ‘the US does this, so we can do it’. There have been numerous amicus briefs written by former admirals, former generals, saying this is dangerous for Americans in other countries. And of course it is because if the US can do it, why can’t others do it to Americans? And yet that argument doesn’t seem to ever get anywhere because the US is the world police and there is a lot of arrogance that goes with that. CJLPA: I’d like to also talk a bit about a common theme that comes up in criminal law, amongst lawyers about innocent versus guilty and I think this is a question that often comes up from, I suppose, academics and people when they ask a criminal lawyer, defense lawyer ‘what if you know your client is guilty?’. How do you, from your perspective as a criminal defense lawyer, explain this, even in the context of defending the most barbaric crimes? NH: It is not my job to decide who is guilty and who is not guilty. It’s never my job to prove someone is innocent. The concept is, is the person guilty or not guilty and it’s up to the government in the US to prove that beyond a reasonable doubt. That’s the standard in most places: proof beyond a reasonable doubt, but that’s the government’s burden. My burden is to defend my client zealously against the government. If, in the end, if the government uses fair tactics, follows the rule of law, provides for due process, and the defendant is convicted, then we will argue about sentencing. But my job is not to be the jury. That’s not my job. My job is to, in the US, essentially defend the US Constitution for everyone, because if it doesn’t apply to my client, it might not apply to someone else, and I don’t think anyone can ever say they won’t be accused of a crime. Someone can say they would never commit a certain crime; they can never say they won’t be accused of committing it. So, that person wants to have the same protection that my client has. I had a client once who I was defending, he was a Republican, who was an oil and gas man and he called me and said, ‘I pulled the lever on the voting booth straight Democrat because I was scared you would find out’. And I said well, the quickest way to turn a Republican into a Democrat is to get him accused of a crime and all of a sudden, ‘What? What is the judge thinking?’. Now you know. You have to approach it that way. I tell people who say, ‘well I could defend certain crimes but not others’, that they’ve got to a really rethink whether you can be a criminal defence lawyer. There are clients I don’t want to defend and I have; I can make that choice. But public defenders don’t get to make that choice. They shouldn’t, they have to represent everyone and everyone the same. And that’s the way it must be. Just because you represent someone who commits a murder, or child abuse, or fraud, doesn’t mean that you did it. It just means that you are providing what the Constitution requires and making sure that there is a rule of law in the country. If we don’t have a rule of law at all, we have a police state. CJLPA: Absolutely. I think inevitably, it doesn’t matter guilty or innocent, every individual has the right to his protection and the right to be treated with human dignity. And that goes back also to Guantanamo Bay. I think a lot of people spoke about the prisoners, whether or not they did it or were they involved. From my point of view, and from what I have read about Guantanamo Bay and the cases, it doesn’t matter if they did do it or they didn’t do it. You read into the torture that they have endured, that the government was responsible for. It’s despicable. No human, no matter what they have done, should ever endure that treatment and they should have had that protection and the justice system failed them because that ever occurred. And so on that point then, I thought it was quite interesting, watching The Mauritanian, which I thought was a fantastic film, I did notice as well that there was a lot of discussion of innocence versus guilt and did he do it, did he not do it. Do you think that was important in the film? NH: I think it was important in the film. It was never important to me. Teri [Duncan] actually, is a death penalty lawyer who represents people on death row and would never have cared in real life whether someone was guilty or not, but the role she took in the film was kind of to be a proxy for the audience. We know that is what the audience is thinking at that point and that’s when I kick her out, you have to leave. Which never happened by the way. There was another lawyer involved who quit but not Teri. But Teri agreed to do this for the film’s sake, to combine these people, so that the audience would have someone to identify with. That whole scene is really interesting because I really would tell someone who took that position, you need to rethink whether you want to be a criminal defence lawyer and you are not on this case anymore. That would have happened. I wouldn’t have been as rude as Jodie was. Jodie has said she was much meaner than I am and ruder. But I did say the last words that are in that scene and those were my words and I must have said them to Jodie when we were talking at one point because she mouthed them. ‘You’ve gotta believe your own shit’, and it’s something that we call trial psychosis. When you get into it you really got to believe, wow, I can really win this. Even when you know you can’t. You’ve got to believe it, you’ve got to believe it and work towards it. And in Mohamedou’s case, there were overwhelming allegations against him that we had to fight one after the other and it turned out that they were all made of nothing. But if you read the police, the first reports you would think he was guilty. Which is true in all criminal cases, if all you do is read the police reports you would think everyone is guilty. And then you got to start parsing it. But I did think it was important for the audience to see how that debate worked out. CJLPA: Reflecting back on your work in that case, today, what would be your advice to present-day lawyers defending a client in a similar situation, not necessarily Guantanamo Bay case, but cases where they are accused of terrorism and confined in the most inhumane prison? Would you have approached the case differently now, thinking back of how it worked through all those years? NH: I don’t know what I would have done differently in Mohamedou’s case, other cases where I have re-thought what I did. But in that case, I think we did everything we knew how to do. I wish we had done some of the investigations that we weren’t able to do, that we didn’t have the funds to do. And maybe things would have moved a little faster. And I am not sure anything would have made a difference at that point at that case. But you know, my advice to people is just don’t give up, turn every corner, be a lawyer, take care of your client. Clients’ stories are the most important and most crimes that are committed by people are the worst five minutes of their lives and they would never do it again. Everyone should be treated with human dignity. And that is the bottom line. Treat your clients the same way you would treat everyone else and care for them, listen to them, listen to what they have to say and do everything you possibly can to win the case. As long as you do it ethically. CJLPA: You mentioned that in Mohamedou’s case you wouldn’t have done something different, but potentially in other cases. Could you expand a bit more on that? NH: Yes, in my first cases. I tried a whole bunch of felony cases when I was a brand-new lawyer. And I know, if I looked back and I did those cases, the ones I lost, and most of them as a public defender, I would say ‘wow, why didn’t I think of this’, ‘why didn’t I think of that’. I didn’t really have very many people to help me at that time, I had some. I went in, I was thrown in and there are other cases where I just feel like I missed something along the way, and I wish I could go back and do them again. CJLPA: What was the most memorable case you have done and why particularly it is that one? Not necessarily the most important, but the most memorable that stuck with you over the years. NH: I really thought about this question, Nadia. There are cases that no one knows about, and I suppose they might be the most memorable, because people know about Mohamedou’s case, they know about Chelsea Manning’s case, they know about Precious Padel’s case, they know about other cases I have won. Lots and lots of high-profile cases, but I was thinking about it. I represented people where we were able to get the charges dismissed and no one ever knew about it. And isn’t that really the best for the client. I remember representing a lawyer who was charged with child abuse. Two people who were charged with child abuse. In both cases they were completely innocent, completely innocent and the cases were dismissed after investigation, and no one ever knew that they were charged. It was the end. Came and went. There was this other guy who was accused of 13 murders and that case people did know about because he got arrested. So it was really high profile, so that case was dismissed. The ones where no one ever knew about them I think are the best. Because that’s where I did my job, because that’s where the criminal legal system worked. Somebody is charged with a crime and then the case goes away because it should and to me those are the most memorable. CJLPA: Do you think that also corresponds with the fact that there was a less of a public eye on it, which in a way offered it more of a due process, having the media cut out of it and the politicians not involved? NH: I do think that matters, a lot. I know that the child abuse cases that I was involved in twenty years ago were a lot different than if I were to be involved in the same case today. The press would be all over it. And it would be a real tragedy for both the complaining witness, who needed some psychiatric care, and for my client, who needed not to have to go through this in the public eye. So I think in many cases that would be different. And that is unfortunate because, you know, there is so much, so much news now about things we never used to know about. We have amber alerts, which we never used to have. We have twenty-four-hour news. We have draconian sentences. And so all of this goes against in many ways the rule of law. Yes, of course we need to protect real victims of rape, real victims of child abuse. But there are times where you don’t know who the real victim is, when the case starts. Is it the defendant or the complaining witness and who is the real victim here? And that is often true in the sex related cases. And those are the ones where they keep the complaining witness’s name and you don’t get to know who that person is, if it is a child. But you know who the defendant is and maybe they shouldn’t, maybe neither one be public until we know where these cases are going. The news is different now than it was twenty years ago. And in many ways that is unfortunate. We don’t have more crime, I keep telling people this. I tell people who say ‘well, it was safer when your son was young’, that, no, it wasn’t, it was actually less safe in the eighties in the US than it is now. Except for murders which went up in the US, during the pandemic, and nobody quite knows why. I mean if you leave the pandemic and the peculiarities of that time out of it. Crime is down, but we never hear more about it. So you’ve got these helicopter parents who won’t let their kids go outside alone. And yet, they are safer than when I let my son go out alone, forty years ago. CJLPA: What would you say is an appropriate balance between having that privacy in the courtroom and the trial taking its course and then equally the public also having awareness of what’s going on around them and their surroundings and the crimes occurring in their neighbourhoods? NH: Well, it is a balance and the public has right to know, and that also benefits someone who is accused because you want the public to be aware, you don’t want to have trials in private, and so there is a balance. But in the balance the defendant’s Sixth Amendment right to protection in favour of confrontation, in due process, the right to a fair trial, always has to be the balance that you look for, always, that balance has to be the one that tips the scale. CJLPA: It would be interesting to know from your experience as a lawyer and working with various other lawyers, what have you noticed makes a good lawyer or a distinguishing one? NH: A good lawyer, in my view, and I tell this to people coming out of law school and people I have been about to hire over years, is someone who is for lack of better words a full-service lawyer. If my client is going to jail and my client says ‘but there is nobody home to take care of my cat’, it’s my job to make sure that the cat gets taken care of. Whenever people go into prison to meet to the client, talk about the crime, talk about the defence, but also make sure that the client is okay, make sure that the client is getting the medicine, and getting the visits he needs, or she needs, make sure that everyone is alright all the time, and listen to the client, listen to the client’s stories and make sure you understand who they are, go visit the crime scene but also visit the family, talk about the history, talk about who this person is, get to know that person, and just be everything that person needs, because the lawyer is ultimately the only person between the defendant and the accused and the world and the government. It’s pretty simple. CJLPA: Absolutely. One more question, just to wrap everything up: in your legacy of defending human rights law throughout your career, how would you want this fight to continue by your successors and what do you hope is going to improve over the years in the justice system? NH: If I were starting today, I’d be figuring out how to represent migrants and refugees around the world. There are people in refugee camps all over the world that we don’t know anything about. Hundreds and hundreds of people who were born, live, die in camps where they get no services, no UN services, no NGO services, they don’t even know they exist. They’re huge, they’re all over the place. And that’s where I think that’s where I would devote my time if I were starting now. I work in an organisation, I’m on its advisory board at the International Bridges to Justice and a goal is to provide lawyers to everyone, and making sure that people who are in prison in countries that have very few lawyers get lawyers, to make sure lawyers are trained all over the world, make sure that the world understands why we need lawyers, and why people who think they will never commit a crime need to make sure that everyone has a lawyer to protect them, and their families, and the rule of law for everyone. But I tell lawyers now when they say ‘what would you do?’, I say I would do immigration law and migrant law, refugee law, because that to me is becoming the biggest issue around the world. CJLPA: Absolutely. I agree definitely on that. Thank you very much for taking the time to speak with us today. This interview was conducted by Nadia Jahnecke, Legal Editor and Founder of Human Rights Volume of CJLPA 3. In addition to her role at CJLPA, Nadia is currently working as a Trainee Lawyer and will qualify as a lawyer in England and Wales in March 2024.

Thomas B Wilner is the managing partner of Shearman & Sterling's International Trade and Global Relations Practice. In addition to this, Tom was one of the few lawyers who spoke out against the miscarriages of justice occurring at Guantanamo Bay and fought for the protection of the fundamental constitutional rights of detainees there. He was involved in landmark US Supreme Court cases, including Rasul v. Bush, Boumediene v. Bush, and Al Odah v. United States. To date, Tom continues to fight for justice and the rule of law, defending Khalid Qassim who is still being held without charge at Guantanamo Bay. CJLPA: Welcome Mr Thomas Wilner. Thank you very much for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art to discuss your remarkable work in representing Guantanamo Bay detainees and leading landmarking cases before the US Supreme Court to fight for their release. We would like to begin by asking you how you got involved and why you decided to take on the cases representing the Kuwaiti detainees at Guantanamo Bay? Thomas Wilner: I first became aware of Guantanamo shortly after it opened in January 2002. Of course, at this point, the world had not known the truth about Guantanamo. In our eyes, it consisted of prisoners, factually known to be terrorists and responsible for 9/11. In March 2002, I was contacted by a headhunter in Washington on behalf of twelve Kuwaiti families, to see if I would be interested in representing them. I was told they didn’t even know where their kids were. I then went to Kuwait with Kristine Huskey and, while we were there, the US government told the Kuwait government that eight Kuwaitis were at Guantanamo. The Red Cross then informed Kuwait that the other four were there as well. When we met with the families, they had prepared files on the backgrounds of their kids, many of whom had a long history of going to different Muslim countries to do charitable work. Somebody at that time had called in from Pakistan, and said that three or four of these kids were sold for bounties—they were selling Arabs for bounties. It was the first time I had heard about the bounties. I obtained a copy of a bounty leaflet, which was distributed by the United States in the area. We had included it with our Supreme Court brief both times. It said, ‘Feed your family for life. Turn in an Arab terrorist’, and we found out they were paying between $5,000 and $25,000 dollars for ‘Arab terrorists’. CJLPA: What was the experience like, meeting the families in Kuwait especially, after having believed that the US Government were capturing dangerous terrorists, when actually the first Arabs spotted at the wrong place and the wrong time (their children) were sold for bounties? TW: I’ll tell you about one of the most moving experiences of my life, as a lawyer. The father of one of the detainees, Khalid Al-Odah—let me say a little bit about him. Khalid was a pilot, a colonel in the Kuwaiti Air Force, and trained in the United States. In fact, during the last Gulf War—he was out of the Air Force, he had retired—he was an underground fighter with the United States against Saddam Hussein. He looked at me in the room and he said: ‘You know, Tom, my whole life I have wanted us to be like the United States and to follow the principles of the United States. For four months I have tried to just have a meeting so my son, Fawzi, can get simple justice’, and he started to cry. He said: ‘I had lost faith in the United States, and, Tom, you restored my faith in the United States’. This was towards the end of April 2002. CJLPA: What happened next? TW: We came back to the US and drafted and filed a complaint in District Court. The Center for Constitutional Rights’ complaint had been a straight habeas corpus complaint, asking for immediate release. We thought it was wiser to file a normal civil action suit asking for basic due process rights—the right, first, to have lawyers; to have contact with families; and for a fair hearing. That relied on habeas corpus, the essence of which is a fair hearing before an independent tribunal. It is important to understand that hearings are particularly important for the people detained at Guantanamo. None of these people were captured on a battlefield, and they weren't wearing enemy uniforms. They were all dressed as civilians and, in fact, many were simply innocent civilians turned in for bounties or taken by mistake. You need a hearing to see if there was a reasonable basis for detaining them—to distinguish the bad guys from the innocent men detained by mistake. In fact, the Geneva Conventions and our own military regulations require that a hearing be conducted right in the field if there is any question about whether the person should be detained. The military conducted those hearings in the first Gulf War and, on the basis of them, released the large majority of the people it initially detained. We understand that the military wanted to hold those hearings in the Afghan conflict, but the Bush White House refused to do so. As a result, every Arab sold into captivity was simply assumed to be a bad guy and shipped off to Guantanamo without a hearing. CJLPA: Which case did you file first? TW: The CCR case was Rasul v. Bush. Ours was Al Odah v. United States. They were combined but for the Supreme Court, we put Rasul first. People refer to it by the first name. The Rasul case was two Brits and two Australians, a very sympathetic sort of people, our closest allies. For the Court’s perception, you weren’t talking about Arab nations—you were talking about Britain. That was the strategic reason for Rasul to go first. CJLPA: Can you discuss your legal strategy in this case? TW: From the beginning, we saw our strategy as multi-pronged. We wanted a fair day for these guys in court, but I really did not think that the court tactic was the solution because it would take so long and would be hard-fought. Initially, I thought what we were fighting for was just this basic American principle that everyone has a right to defend themselves and that you cannot throw somebody in prison without giving them a fair hearing. So instead, I thought other avenues could help change the government’s minds. I thought we’d pressure the US government diplomatically on behalf of the Kuwaitis and, hopefully, other countries would also apply pressure for their citizens. I also thought that Europe would apply pressure because it was a fundamental breach of human rights. Finally, I thought that the press would be trying to teach people that there was reason to doubt that these were all ‘bad guys’, and the essential right to a hearing was at stake. CJLPA: Did any of these avenues work? TW: I’ll deal with the diplomatic aspect to start with because, in a way, it is the simplest and most short-lived. The government of Kuwait has fabulous ambassadors. They were told and assured by the US government that: ‘These men at Guantanamo are bad men. Stay away’. They would feed them this information and make it very difficult for the Kuwait government. So, it became very tough to get them to do anything. And, of course, a country like Kuwait is totally dependent on the United States, although we depend on them to invade Iraq and do other things. Then, there is the press aspect. The press part was very difficult. I have always been disappointed in that. I was appalled that people weren’t getting a fair hearing. Tony Lake, former National Security Advisor, and Abner Mikva, former counsel to the President, wrote an Op-Ed on it, but The New York Times and the Washington Post refused to print it. This just shows the terror, the fear, that was instilled at the time. It was finally printed in the Boston Globe, but with very little care, and so it was sort of ignored. Before this, I always had a faith that, somehow, the press would step forward and condemn bad things when they happened, as they did in the Pentagon Papers and Watergate. I thought there were controls like that. So when people would not stand up and say things, I was shocked. Another story, which is still incredible to me: about this time, I talked to a producer at 60 Minutes, who was interested in doing a story about Guantanamo, questioning whether all these people should be detained. After about two weeks, she called me back and said the network decided it didn’t want to do the story because ‘it was too political and controversial’. Can you imagine that? CBS was unwilling to get involved because the issue was too political and controversial. It became clear to me at this point how the hysteria of 9/11 caused the country to lose its way and lose its way for a pretty long time. I previously had always believed that we had checks in our society that would stop real excesses. Maybe I was naïve about that, but I was surprised at the way the press did not work as a check. They really, by and large, did not question the Bush administration. There was no opposition party willing to stand up; the law schools and student bodies remained silent. CJLPA: With the press refusing to print the essential information you had on Guantanamo, I assume the public still did not know the truth about Guantanamo at this point in time? TW: That’s correct. I remember, at one party, somebody saying to me: ‘Tom, it is very hard for us to understand. You say the facts are that there is nothing on these people. But the government keeps telling us that these are all bad guys’. Without the press or Congress investigating it, there was no way for the public to know. It was like shouting in the dark. I tried to get some facts out, for example, about the bounties. I found out from an insider from the National Security Council in 2004, six months before the presidential election, that the Central Intelligence Agency had done a report in 2002 which showed that most of these people at Guantanamo shouldn’t be there. It was closeted; nobody could get to it. I got the name of the person who wrote the report—the CIA agent, but they would not testify voluntarily. They were prohibited from doing so. But they could have been subpoenaed. I tried to get Congress to subpoena this person and they wouldn’t—even the Democrats wouldn’t help. They never subpoenaed that guy for a closed session to learn the facts. It was very hard to get the facts out. Still, to this day, people do not know. CJLPA: Reflecting back, why do you think no one spoke up, no one scrutinised or challenged the Bush administration? Why were people so quick to accept this corrupt and illegal prison? TW: It’s interesting. I remember sitting once, at a table with two young law school professors. I looked at them and said: ‘I’m from the Vietnam generation. If something like this were happening, our law schools would be exploding. We wouldn’t tolerate this. Why aren’t you complaining? What’s going on?’ After a while, they looked at me and said: ‘You’re right. But we’ve got two young kids, and we’re afraid’. I thought—I read stuff like this on the rise of Nazism in Germany, and it just chilled me. Silence, in itself, is a betrayal. I would go to cocktail parties and people would sit around drinking and laughing, and I would think, what were the Germans doing when Hitler came to power? Were they all laughing and drinking, as these things were going on? I knew we had people in a concentration camp, innocent people, and we’re sitting and drinking. CJLPA: At this point, the diplomats failed them, the media failed them, and the law schools failed them. The burden was on you to not only expose the reality about Guantanamo Bay that the Bush administration fought so hard to conceal from the public, but also, to help find a way to get your clients released. What happened after you filed the case? TW: The government filed a response. The government’s argument was very straightforward. The government argued that because the detainees were non-US citizens and were being held outside the United States, they had no rights and no right to go to court. They based that argument primarily on Johnson v. Eisentrager, a 1950 Supreme Court case which had involved the case of twenty-one Germans who were convicted of war crimes after World War II. This case had held that a habeas case challenging convictions in a military court, by Germans overseas who had never been in the United States, could not go forward. The government’s argument was that the detainees do not have a right to habeas corpus because at no time were they present in a place over which the United States has jurisdiction. They were ‘outside the sovereignty of the United States’. Confusing language. The government therefore compared it to Eisentrager, asserting that aliens—non-US citizens—without property or presence in the United States have no constitutional rights and no access to our courts. The interesting thing here was the formalism. The government’s argument really played into the weakness of lawyers. Lawyers tend to think in boxes, and there is a conventional assumption among lawyers in the United States that all rights come from the Constitution of the United States. But this is not true. We argued that, before there was a Constitution, there was the right to a fair procedure and a fair hearing. The fundamental rule of law was established in the Magna Carta, that ‘no free man can be deprived of his liberty or property, except in accordance with the law’. Habeas corpus was developed by the courts to enforce that—you cannot be thrown in prison except in accordance with the law, which means there needs to be a law you are accused of violating, and there has to be a factual basis for thinking you did it. This concept existed long before the Constitution. So the issue actually was why people need to have constitutional rights to have a right to a fair hearing. It was a right under the common law before there was a Constitution. It was formalistic. Formal distinctions were being used to deprive people of a fundamental fairness—a fair hearing. Somebody could reach beyond that. I had no doubt that the judges who used to be on that Court, not just liberal judges but good judges, would have cut through this. CJLPA: But they didn’t. In 2003, the Court of Appeal decided in the government’s favour. What were your next steps? TW: We looked into the possibility of getting cert [certiorari] on the case. In fact, I think one of the great accomplishments of the whole legal effort was getting the Supreme Court to take cert in Rasul. CJLPA: How did you and your legal team accomplish this? TW: In order for the Supreme Court to take a case, it must raise a major issue. So, we tried to make the case a major public issue. We tried again with the press and this time, we were luckier. We got a break—the 60 Minutes II interview aired just about that time. Also, I got an Op-Ed in the Wall Street Journal. Once we got the press involved, we wrote the petition to get certiorari. We emphasised the consequences of denying cert, namely that: If the Court accepted the government’s argument, it would allow the executive to be able to manipulate the law. It would give the executive the ability to say when the Court can and cannot review a case. By simply moving across a geographic line, just by imprisoning foreigners outside the US, the US government could deprive the Court of jurisdiction and deprive people of constitutional rights. In other words, the Court gives the executive branch the unilateral power to manipulate the jurisdiction of the courts and to avoid judicial review of its own actions. That violates the basic separation of powers concept established by the Constitution. If the Court approved this, the US would become an outlier among the community of civilised nations, depriving people of hearings. The Eisentrager decision the Government relied upon was written by Justice Jackson. Justice Jackson, a few years later, had written a dissent in a case called Shaughnessy v. Mezei [1953] in respect to a law passed that allowed the government to deport immigrants entry to the US without due process. Jackson stated: ‘It is inconceivable to me that this measure of simple justice and fair dealing would menace the security of this country. No one can make me believe that we are that far gone’. We drew the analogy and relied heavily on Justice Jackson’s opinion in that case. Finally, another argument that I think resonated with the Court came from an interview I had done with CBS. As it turned out, iguanas at Guantanamo were protected by US law. Iguanas had stronger protection than living beings at Guantanamo. CJLPA: What was the result of this? TW: We successfully got cert. And after we got cert, we then argued the case in court and won the landmark case with the Supreme Court. CJLPA: What happened after you won Rasul? A: Right after Rasul, we really thought we had won the case, that we had won what we were after—a fair hearing before a neutral judge for the people at Guantanamo, to see whether there was any basis for holding them there. The story after Rasul is a legal story. Nine days after Rasul, the Department of Defense instituted a sort of administrative review process at Guantanamo called the Combatant Status Review Tribunals [CSRTs]. Deputy Secretary [Paul D] Wolfowitz issued an order saying they were doing this as part of internal management, and set up panels of three officers—colonel and lower level—to review the decisions that these people were enemy combatants. From the outset, it was clear that these were- sham proceedings. In about ninety-two percent of the cases they just confirmed the decisions that had already been made—that the people were enemy combatants. The detainees were not allowed to see any evidence against them that was classified, and almost all of it was classified. They were not allowed to present evidence on their own unless the CSRT panel said it was reasonably available, and they almost never found that it was reasonably available. Nobody was allowed to call a witness who wasn’t in Guantanamo, and three-quarters of those requests for witness at Guantanamo were denied. It was a joke. When the CSRT panel found that somebody was not an enemy combatant, the government had new panels convened until they found that they were enemy combatants. Anyway, these were the proceedings given to the detainees. Some of the new lawyers in the case filed to participate in those proceedings. We opposed that. CJLPA: Why did you oppose this? TW: We opposed it for three reasons. First,- they were going to lose. Second, in losing, it would sanctify the process as meaningful. And third, whilst a few detainees were ‘cleared’, it soon became clear that in most of those cases, the government would have a do-over panel. CJLPA: How were these military panels justified, in light of winning Rasul? TW: The government argued that, even though we won the right to go to court under the Rasul decision for habeas corpus, in order to obtain relief for habeas corpus, the detainees would need to show that their constitutional rights have been violated. Because these detainees are foreigners outside the US, they have no constitutional rights. They should be thrown out of court. And, in any event, they asserted that, whatever due process rights they have, they are more than satisfied by these Combatant Status Review Tribunals. As I said earlier, the argument was premised on a different box that lawyers fall into, which was a real lack of understanding of what habeas corpus meant. CJLPA: What does habeas corpus mean? TW: Habeas corpus, since the Civil War, had really been to protect freed black men and women from being held by a state in violation of the Constitution. Before that, habeas was what I call the ‘Tower of London’ habeas, where somebody is thrown into the Tower of London on the whim of the King without basis in the law. Habeas was the procedure that required the government to demonstrate there was a lawful basis for the detention. Habeas preceded the Constitution—it had nothing to do with the Constitution. But, interestingly, most lawyers—as did the courts—fell into that trap—that to win in habeas, you had to show a violation of the Constitution, because habeas proceedings in the United States for the past 150 years had been conducted to remedy a violation of the Constitution. CJLPA: Did you go back to court? TW: Yes. Numerous cases were filed after Rasul and the courts consolidated ten cases under the name Al Odah. We argued that based on the Rasul opinion, it was clear that these people in Guantanamo did have constitutional protections, because the Court had determined that Guantanamo was in the territorial jurisdiction of the United States. We therefore argued that constitutional rights applied to people within the territorial jurisdiction of the United States. More importantly, however, irrespective of whether the detainees had constitutional protections, we further argued that the petitioner’s right to habeas does not depend on constitutional rights. The right to habeas was antecedent to, and not dependent on, the Constitution. CJLPA: Did the court agree with your legal arguments? TW: Judge Green, who had the ten consolidated cases, agreed. Judge Leon, who had not consolidated another case, the Boumediene case, ruled the other way. At that point, Judge Green entered a stay of all the cases, pending the outcome of the appeals. Then we had to go up to the Court of Appeals, and it was an amazing process. I think we had three separate arguments before the Court of Appeals because of all the things that developed in the cases. I argued for the Al Odah group of cases, and Steve Oleskey argued for the Boumediene one. It was a seminal argument on what happened in the case, and, to me, it shows one of those few times when oral arguments can really make a difference. Although we had very clearly written why you did not need constitutional rights to be able to have habeas relief, it was clear to me when we got up to argue that the court of three judges—Judge [Raymond] Randolph, Judge [David B] Sentelle, and Judge [Judith AW] Rogers—were trapped in the same conventional wisdom that habeas relief requires a violation of constitutional right. I posed two questions to them to try to demonstrate that was wrong: Let’s say the government passes a law saying it can arrest and detain all red-headed people. You could challenge that as being unconstitutional, but you can also go in and say: ‘I’m not red-headed. You’ve made a factual mistake’. It had nothing to do with the Constitution. They started to get it. Let me give you another example. Let’s say we’re in a war with Japan, and the government passes a law saying we can detain anyone of Japanese descent. This is, of course, the Korematsu case [Korematsu v. United States, 1944]. Let’s say somebody goes into court and says: ‘That is unconstitutional. It’s a violation of equal protection’, and the court says: ‘It’s allowed’. Let’s say another guy comes in and says: ‘I don’t care about the Constitution. You’ve got the wrong guy. My name is not Hara, it is O’Hara. I am Irish, not Japanese’. This is purely a factual question. It has nothing to do with the Constitution. Habeas is a procedure that addresses factual as well as legal and constitutional errors. The judges got it. We clearly won the argument. CJLPA: What happened next? TW: We argued that in September, and we were probably down in Guantanamo at the beginning of November. While we were down in Guantanamo, I heard that a provision had been introduced in Congress to revoke the right to habeas corpus. I came back and fought it. CJLPA: After a strong argument in court which looked like it would go in your favour, the government interfered by trying to amend the relevant law? TW: Yes. When the government also thought they had lost the argument against us, they went to Lindsey Graham, who put an amendment onto the Defense Appropriation Authorizations bill at that time, November 2005, to revoke the writ of habeas corpus for detainees at Guantanamo. I had feared this would happen. I remember we had had a call earlier, with all the new habeas corpus lawyers—as we often did—talking about the brief. Somebody was saying that: ‘We should go to Congress and press them on this’, and I said: ‘Leave Congress alone. It’s a Republican majority. I don’t want to stir them up. Let the courts handle this. I’m confident that if they ever get the courts to rule, we can win on this’. Then I remember this colleague saying, ‘Oh, they’re surely not going to revoke habeas corpus. It’s one of the most ancient writs there is’. Congress voted to change it. The change took out some language in the effective date provision dealing with habeas corpus that was in the other parts of the bill. Then, the case of Hamdan [v. Rumsfeld, 2006] had reached the Supreme Court. In Hamdan, the Supreme Court decided that the revocation of habeas only applied prospectively. It also decided that the military commissions system, as set up, was constitutionally deficient and contrary to other laws already on the books. So it basically said: ‘If Congress wants to do this, it’s got to change the laws’. CJLPA: And Congress did? TW: Yes, Congress did. It went right back and revoked habeas corpus retroactively in the Military Commissions Act. There were still some loopholes we could try to go through. But they revoked habeas corpus retroactively and changed the military commissions system. CJLPA: What was the morale like at this point? It seemed that even with every win in court, the executive would interfere with justice to ensure you would not win. TW: I remember one of the Kuwaiti detainees, prisoners, a brilliant guy—Fayez Al-Kandari—told me: ‘Tom, I think you’re a great lawyer and a great guy, but I got to tell you, the law is not going to win this. We’re not going to get out of here until the US President decides we should get out of here. They’ll always find a way to keep us here’. And that’s what’s happened. And it’s a great disgrace for the law. I mean, we talk about the rule of law. CJLPA: Did you ever bring violations of international law as an argument to the courts? TW: No, it was not a strong argument. Actually, Michael Ratner and his staff at CCR would push arguments that were irritating to the courts, and have no chance of winning. Specifically, Geneva Convention arguments. No matter how strongly you might believe in them, the US courts are not going to simply defer to international law. On the other hand, there are times when Congress incorporates international law into US law. Then, the courts will or should pay attention. CJLPA: What was most challenging at this point in the litigation? TW: To me, the most difficult thing after Rasul was not being able to make decisions that I was convinced were in the best interest of the client because the Court was requiring us, on behalf of these ten cases, to file one brief. We couldn’t split into a separate brief. We had to make one argument, file one brief. We had to do all these things. We did have another series of briefing and arguments to the Court of Appeal and as expected, we lost on that 2-1, with Sentelle and Randolph voting against us, and Judith Rogers voting for us. We then petitioned for cert again, and the Supreme Court denied it in April 2007. I was heartbroken. I thought the Supreme Court would grant cert, as everyone did. CJLPA: What did you do next? TW: We put the Boumediene case name first in our petition to the Supreme Court because of some good facts in that case. The case is now known as Boumediene. The team continued to exhaust available remedies, gathering evidence and reports. We drafted a brief, that was about three or four pages long, and we attached a Military Intelligence officer, Colonel Abraham’s declaration admitting the CRST panels were a sham. The Supreme Court eventually reversed itself and granted cert. It was monumental! My own view is that the Abraham declaration, which has been credited with the grant of cert, was not the reason. I think it was really the government’s performance in between. It had been so outrageous and overreaching that it irritated the Court, including Justice Kennedy, who was the key vote. CJLPA: What was the outcome of this case when it finally got to the Supreme Court? TW: The Court, in Boumediene/Al Odah in June 2008, concluded that Congress could not revoke the detainees’ right to habeas because they are entitled to habeas under the Constitution. It ordered that these people are entitled to prompt habeas hearings. At that time, all my remaining clients had been released, which put me in an odd position. CJLPA: Why were all your clients released? TW: They were released not because we won the Supreme Court cases, but because the government just decided to release them after years of detainment. They sent them back home. CJLPA: What occurred next? After the right to habeas corpus was extended, a significant percentage of detainees won their habeas cases in the district court. However, a 2010 opinion from the DC circuit by Judge Randolph countered this success, stating that while detainees might have the right to habeas corpus, they don’t have the right to due process. Judge Randolph’s statement that Guantanamo detainees have no right to due process in the habeas corpus hearings to which they are constitutionally entitled is, frankly, absurd. Habeas corpus grants the right to a hearing. Due process ensures that the hearing will be fair. As Justice Scalia wrote: ‘Due process [is] the right secured, and habeas corpus [is] the instrument by which due process could be insisted upon’. Without due process, habeas corpus is a sham. Yet the DC Circuit allowed this absurd statement to control habeas proceedings for more than a decade and, after finally taking the issue up en banc, and pondering the issue for more than a year, decided not to decide it. It’s just extraordinary. If judges will not act to safeguard individual liberties, who then will? CJLPA: To date, are you still involved in any litigation involving Guantanamo? TW: Yes, I represent Khalid Qassim. I’ve had him now for seven or eight years. We got him originally to contest the ruling that they have no due-process rights. It’s interesting because you can’t win a hearing if you can’t contest the allegations against you. You don’t know the basis for them. The allegations against this man, Qassim, are basically that he was a foot soldier 20-some years ago after 9/11 in the battle of Afghanistan. That’s something he denies vehemently, but he can’t see who’s making the allegation. So we wanted for him to have the right to do that. CJLPA: Where does this leave Qassim now in respect to his prospect of being released? TW: In June 2019 we won a case before one panel of the DC Circuit saying that the detainees should have the right to due process. Then another panel in another case held the other way, and it’s still sitting there. Then, shortly after the last US soldier withdrew, we filed a motion for summary judgment asking the court to release our client, Khalid Qassim, arguing that the end of the armed conflict ended the government’s legal authority to detain him and the others like him who were taken into custody not because they were allegedly terrorists but because they were essentially foot soldiers in an armed conflict that is now over. We were unable to get a hearing on our motion until early December last year (mainly because the Al Hela case over the question whether the detainees were entitled to due process was pending before the en banc DC Circuit). The hearing was before Senior Judge Thomas Hogan, who had been the presiding judge since Neil Koslowe and I first became involved in this case about seven years ago. The hearing was long, held both in open session and in closed session to consider classified data, and it went very well. At the end of the closed session, Judge Hogan thanked me for presenting new arguments that cast additional light on the key issues, and he promised to write an opinion deciding the motion. Following the hearing, we submitted a short post-hearing memorandum summarising our basic legal arguments and responding directly to questions the judge had asked during the hearing whether these arguments had been raised in other cases. In summary, we said habeas corpus remains the single most important protection of individual liberty in Anglo-American law—it is what Blackstone called ‘The stable bulwark of our liberties’. But it depends entirely on judges being willing to carry out their critical responsibility to ensure that no person is deprived of liberty without legal authority. Judges have been unwilling to accept that responsibility at Guantanamo. We pointed out that, based on the Supreme Court’s opinion and acts of Congress, the end of the armed conflict ended the legal authority to detain Qassim. The judge gave the government until the end of February to respond, which it did (a day late). We then waited anxiously for a decision. CJLPA: What was the decision? TW: Toward the end of July, we approached government counsel to consent to a status conference before the judge, and we were informed that the case had been reassigned from Judge Hogan to Senior Judge Richard Leon. We still have no idea why. Whatever the reason, however, we were extremely disappointed to learn that this case that had been fully briefed and argued and was ripe for decision had been reassigned to a different judge, that much time had therefore been wasted and we essentially had to start over, and that Qassim’s legally unauthorised detention would not only continue but be prolonged for many more months. CJLPA: What did you do next? TW: To avoid further delay, we immediately moved to present an oral argument to Judge Leon. He promptly denied the motion in a one-sentence minute order: ‘Upon consideration of petitioner’s Motion for Hearing and respondents’ Response, it is hereby ORDERED that the motion is DENIED’. Judge Leon apparently believes that oral argument would not be helpful to him in deciding this case, which had been pending before him for seven months. CJLPA: Has Judge Leon since made a decision? TW: Yes. After refusing to hear the oral arguments, Judge Leon issued a short opinion at the end of last week denying our motion for release based on the end of combat. He did so without even addressing our arguments. Another striking example of denial of justice at Guantanamo and of the refusal of the courts to carry out their fundamental responsibility to safeguard individual liberty from arbitrary government detention. We are seeking ways to appeal. CJLPA: That’s outrageous. I don’t understand how, given the public knowledge that the US government captured and kidnapped prisoners who we know are not ‘terrorists’, they are not immediately released? TW: It is absolutely outrageous! They were never charged. That’s why the US government never claimed them to be terrorists. The important thing about Guantanamo Bay is that they are not claiming them to be terrorists. Everybody confuses that. And because they were never charged, they cannot be heard in court. CJLPA: Further to my previous questions, despite the clear illegality, Guantanamo Bay remains open. How is this possible? TW: Dating back to 2008, I met with the Obama administration and helped write their order saying that they would close Guantanamo within a year. I then worked with Greg Craig who was the counsel of the White House. He’s a great guy. To close Guantanamo, the US had to get other countries to accept the detainees, but also, within the US as well. The first detainees we considered were Uyghur detainees, who had been, quite clearly, captured by mistake. Greg had negotiated a deal to locate the Uyghurs into northern Virginia where there’s now a larger Uyghur community. When Frank Wolf heard about it, that was the beginning of the politicisation. He made various public comments such as: ‘How can you let a terrorist into our territory?’. What was President Obama’s response? Rather than saying: ‘Listen, everyone knows these guys are innocent and have been deprived of their liberty for all these years’, instead, he backed away. Then, the Republicans smelled blood and they imposed all these restrictions on the President’s ability to transfer people. The restrictions included not transferring anyone in the United States, or to Yemen or certain other countries, needing to get Congress approval, etc. It made the process extremely difficult and a pain. So, Obama’s administration didn’t do it because the political pressure pushed them away. I then again met with the Biden administration at the beginning, and I’m telling you, I know they want to close Guantanamo. I corresponded with Tony Blinken, and he is a great guy, Secretary of State. But again, they’ve got a 50-50 Senate and a long list of priorities. Before these political administrations, 30 foreigners at Guantanamo don’t rise very high. There’s always something more important. You can’t count on the political branches. At the end of the day, you need the courts, and I never thought the courts would be the answer here. They’re the branch whose duty it is to safeguard individual liberties in accordance with the law. But the courts are very divided now too, and they’re affected by politics. They’ve been such a disappointment. CJLPA: How did the rule of law and the US justice system become so grossly deprived? TW: The court did not step in when it needed to. The court deferred to the government on everything, even when the government, time and time again, was proven to either be lying or at least not know what was happening. The court put up with it. So we were fighting the government, but the court put up with it at every stage. So I am terribly upset with the courts. People lost any faith in the American judicial system and, honestly, so did I. The whole purpose of Guantanamo, in the administration’s mind, was to create a law-free zone. The Bush administration proceeded from the premise that the laws were an impediment to fighting the war on terrorism. They felt they had to avoid the law—and lawyers—in order to fight the war on terrorism. CJLPA: In the name of fighting terrorism, do we need to sacrifice justice for safety? TW: No. What the executive branch never understood was that the laws are compatible with our security. Being a nation of laws and following the laws makes us stronger in fighting terrorism. Guantanamo is a symbol, a place where you can avoid the law. But that has stained our reputation and hurt us around the world. Embracing the laws allows the executive to do everything it needs to for safety if they just follow the law. The law ensures that, if there is any doubt, you give them a hearing. Big deal. The only reason there would be no hearing is because there is fear: fear that they are innocent. The laws protect the innocent. But more than that, it protects justice, and ensures that we are a nation governed by law and justice and not by passion and revenge. I was fundamentally upset that the courts tolerated law-free zones. The government’s intimidation, in violation of their own rules, was unreasonable. They operated in pretty much a law-free zone—and the press was extraordinary. We would come out and tell them stories about what the detainees said, that they had been abused, that they didn’t have reading material. The government would simply deny it. The press was left in a situation where they often did not know, so it was hard to get scrutiny on it. And who were we? We were just advocates for ‘terrorists’. CJLPA: On a final note, what is a key takeaway about the justice system in ensuring history does not repeat itself? TW: Guantanamo is exceptional for any of us, and what we otherwise expect and hope our world to be—a fair and just world running according to law. I think I was, and still am, most disturbed that in a country where people espouse fairness, which much of our life is really based on, how easily people turned away from it. Our principles, the rule of law and justice, are not incompatible with protecting our security. They make us stronger in these things. That is the right chord. How we lost our way and how people do not care is amazing to me. But we’ve got to keep fighting. This interview was conducted by Nadia Jahnecke, Legal Editor and Founder of Human Rights Volume of CJLPA 3. In addition to her role at CJLPA, Nadia is currently working as a Trainee Lawyer and will qualify as a lawyer in England and Wales in March 2024.

Issa Amro is a Palestinian human rights defender who has lived in Hebron (West Bank) since his birth. For over two decades, he has been advocating for Palestinian rights, with his unwavering dedication earning him international recognition by the European Union, the United Nations, Amnesty International, and US Senator Bernie Sanders. He founded Youth Against Settlements, an organisation advocating for resisting the occupation through peaceful means and through empowering the Palestinian community. Issa is also involved in several other non-violent movements, such as the Hebron branch of the International Solidarity Movement (ISM), the Arab Non-Violence Network, and the Hebron Defenders. He is involved in monitoring the application of international human rights and humanitarian law in the Occupied Palestinian Territories. CJLPA: Good morning, Mr Issa Amro. On behalf of The Cambridge Journal of Law, Politics, and Art, we would like to thank you for your time today to provide valuable insight on your experience as one of Palestine’s most highly prominent activists. You were named Human Rights Defender of the Year by the Office of the High Commissioner for Human Rights and the European Union. Your work has made a real meaningful impact on the decades-long Israel-Palestine situation, and we look forward to further learning about it in order to engage the wider international community and fight against the ongoing human rights violations. We would like to begin by asking how your early years such as your childhood or your teenage years in Hebron have inspired you to choose the activist path? Issa Amro: I am happy to contribute and thank you very much for interviewing me. I hope that this interview will enrich people’s awareness and knowledge about the reality of the situation on the ground. I am a Palestinian who was born in Hebron City. I was born very close to an Israeli illegal settlement in the old city of Hebron. I suffered from the presence of the settlers, and I suffered from the presence of the Israeli soldiers. A main memory for me was the Ibrahimi Mosque Massacre, which happened in 1994, when Baruch Goldstein, an Israeli retired army doctor, broke into the Ibrahimi Mosque and killed 29 Palestinian worshippers in the early morning who were praying. That was the main shock for me—to see that someone can just kill innocent people in the mosque. The consequences of the massacre affected me. I did not attend school for four months. It was really difficult for me as a child, that time. We lost one student who played football with us every morning at school. The streets were closed, segregated, and shops were closed. So, we were the victims of the Ibrahimi Mosque massacre, and we were punished under the hands of the Israeli military operation because we are ‘weak’ and they are the main power. Nonetheless, I continued my education at high school, then I graduated from high school, and I went to university to study engineering. My dream was to become an engineering professor. I was doing very well in school and at my university, and I continued to pursue academic achievement to fulfil my dream to become a professor. Unfortunately, in the last year of my degree, Bachelor’s Degree, the Israeli military closed my university. I went to the university in the morning, I found the campus sealed, the doors were welded by the Israeli military and the porter paper said that the university is closed indefinitely, without giving any explanation. I became very disappointed, very angry. I wanted to get my degree by any means. It was about education for me, not about occupation. So, I went home, broken, disappointed, and very angry. I searched ‘how to create a revolution’ on Yahoo’s search engine. I wanted to create a revolution. Luckily, I firstly came across Martin Luther King, involved in the civil rights movement in the United States, Gandhi, and the anti-apartheid movement in South Africa. I studied these non-violence campaigns and I started a campaign with other students to reopen the university to get our degree. It was about education, because Palestinians on the daily, all over Palestine, fight to get to their schools, fight to get to their universities. We believe that education will empower us to make us stronger, to resist the Israeli occupation and to be able to keep our identity and keep our steadfastness as Palestinians who are living under Israeli military, apartheid, and oppression. And from that point, I graduated from the university as an engineer, but also as an activist. From there, I started campaigning, creating non-violent committees, organisations, movements, up to the point where I am now. CJLPA: We are inspired to hear that through your passion, you wanted to emphasise the importance of education. You have lived in Palestine all your life and your work is in the heart of the occupied city of Hebron. How would you say the situation has changed since you started your career? IA: I started my activism 20 years ago, and as time passes, it is getting much worse. There is a war against our rights as Palestinians. We live under Israeli military law without any basic rights. Imagine that non-violent resistance, according to the Israeli military law, is not allowed, and it is illegal. Personally, I was indicted, and I was convicted in the military court, arrested for practicing non-violent resistance. By the Israeli military law, we are guilty until we are proven innocent. It is the opposite of the civilian law. So, whenever I am arrested without evidence held against me, I have to prove to the judge, to the court, that I am innocent. This can be really difficult. So, it is not easy to see that in my 20 years as an activist, to control Palestinians, there are more checkpoints, more restrictions, advanced technology to track them, spy on them, to violate our privacy, and to intimidate us. I feel and see that every day, we face further challenges. Their policy is that they do not evict you directly from your home, but they make it impossible for you to remain in your home. How do they make it impossible for you to remain in your home? By making you not feel safe. At any given point, I know that the settlers and soldiers may break into my home and arrest me, attack me, or shoot me. I do not feel safe in my house now. I do not have access to any protection. I am afraid for my safety, I am afraid for my neighbours’ safety, and I am afraid for my friends’ safety. We live in fear all the time. Secondly, there are no services—electricity, plumbing, or even ambulance services! If I were to require access to an ambulance now, I would need coordination for the ambulance to come in and assist me. So, you skip all the emergency cases, the doctors because there are no services at all. From checkpoint to checkpoint. Thirdly, there is no social life. Part of our culture is the social life. How is it that there is no social life? Public events are not allowed. Visitors from outside the area are not allowed. We have 22 checkpoints within less than one square kilometre. It is up to the soldiers to decide who gets into the area. Imagine that the soldiers decide if you may bring friends into your home or not. The soldiers decide if you may throw a birthday party or not. So, there is no social life, there are no services, and there is no safety. This is the situation. And it is getting much worse. There are more restrictions. There is more ‘blue and white’, they call it. They are building more and more settlements; they are closing more and more streets, they are closing the markets, etc. They are working to displace the Palestinians and to make them lose their homes, they make them not think about freedom. Instead, they keep us busy struggling for basic rights, in order for us not to call for freedom. We do not ask for equality. We do not ask for justice. Freedom is a dream for us. Justice is a dream for us. Equality is a dream for us. But we do not have any of that. CJLPA: I was particularly interested to hear that the Israeli authorities track Palestinians, and I have not heard of this before. So how does that work? Do they just track where Palestinians are going or what kind of technology is being used? IA: The whole world is utilising artificial intelligence to make human being lives’ easier, but unfortunately, in Israel, the Israeli occupation is using artificial intelligence and advanced CCTV cameras with facial recognition, eye recognition, and body recognition in order to track and spy on Palestinians. I have no privacy. They know everything about my life. This interview, it is recorded by the Israeli authorities. When I talk to my friends, it is recorded. They track us on social media on our daily lives on social media—they know who gets into my house, who comes to visit me, what is going on around me, my location wherever I go. They then create a profile of me holding information without my consent – they have all my history of activism, my personal status, my personal needs, they have it on their profile without my consent. I cannot say ‘no, do not do such research on me’. They use two types of technologies now. One is called Blue Wolf. Blue Wolf is a mobile application whereby Israeli soldiers approaching you with a phone and taking a photograph of your face, can access all the information about you. Imagine, 19 or 20 year old soldiers, with a military system that provides them the ample space to act according to their ideology, come to you and know that you are a human rights defender and you are against the occupation, even if it was in the form of peaceful resistance. This happened to me a few times this year. I was detained and ill-treated by the Israeli soldiers because they dealt with me as per their ideology. Additionally, settlers may access this app as well, because there is no difference between Israeli settlers and Israeli soldiers. The other application is Red Wolf. For the Red Wolf app, the Israeli military have installed CCTV cameras everywhere. In my house, from one direction, there are three CCTV cameras. From the other direction, there are two more. So, the families feel monitored inside their homes. The women in our community, when they are in their homes—considering that it is a conservative culture—they do not want others to be able to see them, especially a stranger being able to see their hair and their body. They close the curtains when they are in their homes. Some women have asked me, ‘Issa, can these cameras see us inside our bedrooms?’ That is the fear, that intimidation, so this is the technology that they use. The Red Wolf is to do with CCTV cameras and computers in order to track Palestinians. However, a very important point is that these cameras are not used to track Israeli settler violence. So, whenever the Israeli settlers attack us, attack our homes, they do not use their footage to prove that settlers attack Palestinians. It is only used against Palestinians. And we do not know what they do with it. Perhaps, they do medical research, or other kinds of research into our bodies or behaviour in order to then sell this data to big companies. There is Smart Shooter at the main checkpoint— a private company from Tel Aviv. They came to install the security Smart Shooter in Hebron by the checkpoint: first, to intimidate me and then to be used us as a simulation object. They do simulations on us for their technology. So, they are misusing the artificial intelligence against the Palestinians to withhold our right to privacy and our right to live equally without fear. CJLPA: It is shocking to see that such basic rights to privacy can be violated, leaving Palestinians live in this state of paranoia. With regards to the settlements, how does the process work with regards to the expanding illegal settlements over time? IA: Unfortunately, Israel is building more and more settlements every day and building infrastructure for these settlements all over West Bank, East Jerusalem, and Hebron—bypass roads, industrial zones, agricultural zones. On the one hand, they fight the Palestinian presence through the idea of not evicting Palestinians directly, but by making it impossible for them to stay—by cutting off water, electricity, etc. On the other hand, they encourage Israeli settlers to build commercial centres, educational centres, universities, bypass roads and infrastructure to annex the West Bank without the Palestinians. High Israeli officials say ‘we should remove that city’ or, ‘we should remove and burn that community’. There are many Palestinian communities now in areas where they are facing eviction and the lack of water. The Israeli army just last week put cement in water wells in order to cut off Palestinians’ access to drinking water. Imagine that in some areas the agriculture is restricted, because they don't want us to have any infrastructure for basic rights in certain areas. This is happening in H2 in Hebron, in East Jerusalem, and in Area C, in general, in Palestine, to displace the Palestinians. And the over-turning of the Israeli judicial system is a tool to legitimise and to get legal approval for all their actions against the Palestinians because we are the ‘weakest’ group in this situation, it is not easy for us at all. We are fighting for our existence; we are fighting for basic rights. We do not talk about more than basic rights these days. But, even with basic rights, we do not have access and our existence is in danger. There are hundreds of new settlements every month; thousands this year, which is the highest it has been in a long time. Settler violence is the worst it has been in the last, maybe, 20 years, and without any accountability. Something that is very important about settler violence: they steal your property, they attack your house, they attack you physically, and all without any kind of accountability, with full impunity. There are organised programmes against Palestinians by Israeli settlers’ militia, and they are now getting more guns, more weapons from the Israeli government. I see settlers in the neighbourhood here, they never have machine guns, automatic machine guns or semi-automatic machine guns. That is an indicator that we are facing a very dark future and that maybe, we are facing massacres in certain areas to force the Palestinians to leave so to take over their land. I can see that what happened 75 years ago at the time of the Palestinian Nakba, it will be repeated if we do not stop these current extremists who now are the government as well. What the Israeli army cannot do legally, the Israeli settlers’ militia do it by themselves with the protection and escort from the Israeli military, the Israeli government, and the Israeli media. I was attacked last February by an Israeli soldier when I was working with a famous American writer. And I was attacked. I was the victim of that soldier. Meanwhile, the Israeli military accused me of being in an illegal area. The army and the Israeli army spokesperson said that I am the problem. Then, the Israeli media accused me of being a provocateur, and said that I deserve what happened to me. The Israeli National Security Minister also tweeted that I deserve what happened to me and that the soldier should be backed up. So, the Israeli government did nothing to make this soldier accountable, and the Israeli public treated the soldier as a hero. This is a small example of the atmosphere of the Israeli soldiers’ and settlers’ violence. CJLPA: It is truly unbelievable to hear about the type of propaganda that is being spread and the support for these violations. With regards to other activists in Hebron, is it also common for them to be attacked by or harassed by the authorities? IA: I am not an extraordinary human rights defender. I am a Palestinian and the majority of Palestinians face harassment and ill-treatment from the Israeli military, the Israeli government, and the Israeli settlers. So, it is a phenomenon—using this level of oppression against Palestinian women, Palestinian children, and Palestinian human beings, this is a phenomenon. If you are a human rights defender, or a journalist, you are further targeted because they want to silence the voices of those who are trying to expose the Israeli oppression, the Israeli occupation, and the Israeli apartheid. So, we became the target as a means to silence our voices. For example, Shareen Abu Akhleh was assassinated. She was a famous Palestinian journalist who was assassinated by the Israeli military. She was shot, killed, and the killing was confirmed by the Israeli army, without any accountability for who killed her. So, it's a common phenomenon to target journalists and human rights defenders, so as to not allow us to tell the story of what is going on the ground. Mainly, what's happening to me is because I tell the truth, because I document the truth, because I give a first-hand testimony to the international community about what Israel is doing. When we say Israel is not defending itself, it is because Israel is defending its occupation, its apartheid and its settlements. When we say that Israel is not a democracy, it is because I live under the Israeli military law without any basic rights while Israeli settlers live under the Israeli civilian law. So, when there are two sets of law, for different people, we say it is an apartheid, it is not a democracy. It is a democracy for its own people. I do not choose or vote for the authorities who are controlling me. Israel does not want that. Israel wants to play the western country, which respects human rights, which respects democracy, but that is not the truth, it is fake. It is so obvious that it is fake when I tell my story as a Palestinian human rights defender who believes in non-violent resistance as the best method to obtain our rights. This is about our rights as Palestinians who are calling for freedom, justice, and equality. Israelis do not want that—they are not ready to give us our rights or to be equal with them. They do not want us to hold them accountable for their violations of international law and for their violations of our basic rights. CJLPA: It is almost as if Palestinians and Israelis live in completely two different countries, despite living on same land. Can you please share some details of how Palestinians are attacked, tortured, and killed specifically by those authorities? IA: If you are passing a checkpoint or in a certain area, you may be shot and killed. Or you may be arrested. I was arrested many times without any reason. They detain me between four to eight days in a military detention centre without me seeing a charge. This has happened to me many times and to many other Palestinians. There are now 1,000 Palestinian prisoners in ‘administrative detention’, also known for us as jail. You do not know why. Your lawyer does not know why. The judge sometimes does not know why. Imagine that there are 1,000 Palestinians—among them children and women—in administrative detention, without trial where they may intimidate you and beat you. That is against international law. They can also make your day really hard and impossible to get through: they can close the streets, close the cities, or impose collective punishment. It is truly not easy for us. A further very important note is that we feel the supremacy of the Israeli soldiers over us. The way they treat us—they dehumanise us at the checkpoints by treating us less than they would treat animals. They see us as suspect and treat us like extremists all the time, despite the fact that we all are civilians and it is the soldiers who are the extremists violating international law. And they are the violence machine. This is the worst feeling for me, that they dehumanise me. Imagine at the checkpoint, there is the layer of advanced security artificial intelligence, and there is another human layer to provoke you, to dehumanise you, and to really intimidate you. In winter, they force you to take off your shoes on muddy ground. When it is very sunny, they close a checkpoint and make you wait. They say bad things to you, they harass the women when they pass the checkpoint, without any accountability and without any kind of mechanism to address complaints, or even to bring awareness of what is happening to us. It is not reported on in mainstream media, and our content is highly restricted on social media these days. So, we escaped from the mainstream, biased media to the social media. They followed us to the companies, to the social media companies, to restrict our content. Imagine that I posted Shireen Abu Akleh’s photo on social media and my account was then restricted. Shireen Abu Akleh was an American, Christian and a very famous journalist, assassinated by the Israeli military and almost everybody around the world showed sympathy with what happened to her. I posted Shireen Abu Akleh’s photo on social media and social media deleted my post and restricted my account for posting her photo. This is the life we live under as Palestinians. CJLPA: The international community is beyond disheartened with the attack on the Jenine refugee camp last month. Do you have comments on the situation and how Palestinian refugees are affected by such attacks? IA: When the international community talks about Jenine, they forget that those camps were created 75 years ago, that those people who are living there were evicted from their cities, from their communities, and from their properties. They are refugees, and they are the victims of Israel. They are the victims of the international community’s double standards. How is it that for so long, for 70 years, those people are unable to travel a few kilometres back to their homes, to their villages, and to their land? And for 75 years, these camps have been in a very bad condition. They do not have well-built roads, they do not have sewage systems, they do not have enough water, they do not have enough electricity. It is so tense to live there—the density of people is so high, it is house to house, and they spent all their money to build small houses to live there with basic rights. Then, the Israeli bulldozers, the Israeli advanced army, go in, destroy everything, and kill nearly anybody who was in their way. A Palestinian was merely running, and he was killed. A young girl was filming Israeli soldiers raid the camp, she was also killed. We say the Palestinian Nakba is continuous, it is being repeated every day. It is not easy to describe the situation in the camp. You are a refugee, and the Israelis are working to make you a refugee again. It is not acceptable whatsoever that those refugees are targeted by the same offenders who made them refugees in the first place and that the international community blames the refugees for what is happening to them. The international community is not holding Israel accountable for its violence, for its occupation, for its apartheid and for its eviction of the Palestinians 75 years ago. CJLPA: Moving on to your organisation, Youth Against Settlements, which works to strengthen the community of Hebron against the illegal expansion of settlements and to document human rights violations. What are some memorable achievements of your organisation and other organisations you are involved in, such as the human rights solidarity movement, or Non-violence Network and Hebron defenders? Additionally, what are the challenges faced by such organisations? IA: Our centre was raided many times by Israeli soldiers and settlers. The soldiers confiscated all our belongings a few times, while the Israeli settlers attacked our centre and destroyed our property, such as the water pipes, fences, etc and stole our CCTV cameras. We are under continuous pressure. The organisation has different focuses. Firstly, we conduct direct action through rallies in order to increase awareness about what is happening. We document the human rights violations that occur and also train families to document such violations using video cameras. We also undertake legal work and organise a lot of campaigns, such as the Open Shuhadah campaign. To bring back Palestinian families to the community, we work to help them feel more safe by making patrols on the streets, walking the children to the school, or teaching women to speak English and Hebrew. Another very important point is to keep our narrative alive, to protect the identity of the Palestinians. It is Free Palestine. The Palestinian flag is everywhere here, even in the middle of an area which is targeted by the Israeli occupation. So, we do not say that we are merely victims, but we are fighters using non-violent resistance to make the occupation costly and this is my message to everybody. Make fighting the occupation part of your daily routine. Think and be creative as to how the occupation can be made costly to the media and the economy. And a very important work is to level up Palestinian voices by boosting Palestinian culture, education, sports, economy. This is very important to do—along with making Israel accountable for its occupation and apartheid and telling the truth to the world. I would like for the international community and the international people to act according to their principles, according to their morals. This is something very important because it is about equality. It is about justice. It is about freedom. How can we live as slaves in our own communities, without basic rights? Do the international people accept to live as slaves in their own land, in their own homes, without security, without social life and without any form of services? We are not asking for much, we are asking for equality, justice, and freedom as Palestinians. We practice non-violent resistance on the ground to act and we have many achievements. The house I live in was a military base, and I took the soldiers out of it. We established a kindergarten, we established a women's centre, we are now establishing a cinema public space, to show that the land is Palestinian it. It is Palestinians’ land, but we really want to affirm it and still stand strong in front of the soldiers and the settlers without fear and without giving up. We do not want to give up our rights and in no way do we want to become refugees again. This is what we tell the families—we pick them up, we stay with them, we support them, and we will continue to do so in spite of the challenges we face. Challenges such as violence, smear campaigns, the false rumours about us, the propaganda, and the attack our social media. We struggle for donations to survive as activists, and we do our best to fundraise, but it is not easy. It's almost impossible with the attacks and the restrictions imposed on us. CJLPA: We truly commend your efforts through your organisation. In addition to bringing awareness to the violations, you empower the community and foster a mindset of resilience, despite the struggles. We are aware that Open Shuhadah Street project is a big project part of the Youth Against settlement. We wanted to know more about this and what does Shuhadah Street mean for the Palestinians? Why is it so significant? IA: Shuhadah Street is the main street in Hebron, similar to Oxford Street in London and Times Square in New York. It is the main street, the historical area, it has the most markets, the symmetry, so it is really the main street of the city. So, we chose the campaign, Open Shuhadah Street campaign, to increase awareness as to how is it that we are segregated in our own streets. How is it that I am not allowed to walk in my own street because of the Ibrahimi Mosque massacre in 1994? How is it that we were the victims of the Israeli terrorists who went into the mosque and killed 29 Palestinians, and we were the ones punished, even though we were the victims? Open Shuhadah Street campaign means no to the occupation, no to the Israeli apartheid, no to the Israeli segregation. Palestinians are bringing awareness to the situation, by fighting and resisting peacefully and commemorating the Palestinian massacres. We will not forget and we will not forgive, until we get our rights, until we make Israel accountable for its occupation and apartheid, according to international standards. It is a symbolic campaign to inform the international community about who the Palestinians are. I want the world to understand that we are human beings and that we have our own characters, our own education, our own culture, our own habits. This is part of what we do to show the human side of Palestinians and that we are just like any other nation. We want to be treated as a nation who has freedom and justice. We don't want to be treated as animals who are seeking shelter. CJLPA: We want to touch on the point you said earlier about the administrative detention. You said that sometimes, the soldiers, the lawyers, the judges are not even aware of the reason a detainee is in detention. So, in that case, what happens to these people in detention? How long are they kept for and what is the procedure, or challenges in this procedure? IA: They come to your house, they arrest you, they tell you that you are under administrative detention. That is the end. You will be in jail until they decide when you may leave—it could be four months, six months, one year, two years, or ten years. This is administrative detention. When you go to court, the judge does not open the file, there is no trial, and your lawyer does not know why. This is the reality—only Israeli intelligence decides how long you stay. And a further very important point is that your family does not know the end of it, does not know what you are charged for, and will be continuously waiting for you. CJLPA: With regards to children, what are the prison conditions like for children and other Palestinians? IA: The worst experience for me when I was arrested was to be arrested with children. I was arrested one time, and I found children in the detention centre handcuffed, blindfolded, intimidated, and harassed, left without water or being able to go to the restroom. They were crying, they were ten or eleven-year-old children. My heart was broken, how were they able to treat them this way? How could they make them confess to throwing stones when they did not do so? How can they refuse to give them their legal rights, intimidate them, try to destroy their dignity, as young children? The children are a target for the Israeli military, they try to make people afraid for their children. They target the community by targeting the children. My child, two weeks ago, was detained at the checkpoint to target me. My neighbour's children were also arrested to intimidate me as a human rights defender, thinking they were my children. When I went to the soldier, I told him they are not my children, they are my neighbour’s, but they were kept for two hours, detained and beaten by Israeli soldiers. CJLPA: This is all very valuable information to know, and it is important that the wider international community be aware. Before bringing the interview to an end, what do you think the international community can do in order to place pressure and to make Israeli authorities accountable for their violations? IA: I want the international community to see Palestinians as a nation who deserve full equal rights, not just to try and give us shelter. We do not want shelter, we want to be treated as a nation, as every nation on earth, which is very important. On the other hand, to do everything possible to make the Israeli occupation and apartheid costly— to use Parliaments, to not import Israeli settlement products, to use the media to further increase awareness, to support Palestinians economically and politically, to make Israel accountable before the International Criminal Court. and to use all the international mechanisms available to make Israel accountable. Without making the occupation costly, nothing will change. Without doing concrete actions, nothing will change. I want them to understand the Palestinians’ need freedom, justice, and equality. I plead with the world to support the Palestinians by supporting their economy, education, and voices, fostering friendships with Palestinians, being more engaged with pro-Palestinian organisations, pro-Palestinian groups, and to not fall for the trap of the fake anti-Semitism accusations because Israel is politicising the term anti-Semitism. We, Palestinians, are against all kinds of racism and support all kinds of free speech. Anti-Semitism is not part of our cause, neither is islamophobia, homophobia, or any other discrimination. We, Palestinians, believe that all human beings are equal and deserve full equal rights. This is what we want we will continue to fight for the name of our rights and for everybody's rights. CJLPA: Definitely, as you mentioned, it is very important for the wider community to bring awareness and hear the voices of the Palestinian people and use all the international mechanisms available and work with all types of organisations. Mr Amro, thank you very much for your time today, it has been an absolute pleasure speaking with you. We thank you once again, for allowing us to obtain valuable insights from the brave work that you and your organisation do. And we wish you all the best with your endeavours to create a better future for your people. And we hope to see that the occupation comes to an end at some point. IA: Yes, I agree that the occupation will end. I am very optimistic, and we are almost there, but we need to work harder. This interview was conducted by Shahad Alkamas, who graduated in 2021 from Middlesex University and obtained her LPC the following year at the University of Law. In addition to her Legal Researcher role at CJLPA, Shahad is currently working as an in-house litigation paralegal, with previous experience in various legal fields such as personal injury, immigration, and civil litigation.

Introduction In Zoe Leonard’s photograph of Fae Richards and June Walker, two women wrap their arms around each other and gaze lovingly into the other’s eyes. The caption dates the photograph to 1955, Richards’s forty-seventh birthday at their shared home. It reads, ‘Fae and June met while Fae was singing at the Standard. June sat at a stageside table every night for months, always with a white rose for Fae. By 1947, they were living together, and they lived together until Fae’s death’.[1] The photograph itself evinces its age through its weathered appearance: the bottom right-hand corner is ripped and the surface is lined with scratches. The scene is mundane, yet two Black lesbians living and loving happily together in the 1950s is extraordinary. Fae Richards and June Walker never existed. They were fabricated by Cheryl Dunye to account for a history written out of the archives. If 2SLGBTQ+ people do appear in the dominant archive, it is only through a heteronormative gaze that either condemns or erases them. The absent archive has always posed epistemological and political challenges. Marginalised communities—those that have been strategically erased from the dominant archive—are left with little history to draw on in the struggle of resistance. The archive, as both a theoretical and material locus of power, is troublesome for marginalised groups that are alienated from vectors of power. Saidiya Hartman’s seminal essay, ‘Venus in Two Acts’, deals with these issues in relation to archives of slavery. Hartman illustrates how histories of erasure necessitate different archival methods. In the essay, Hartman introduces the notion of ‘critical fabulation:’ using archival research alongside fictional narratives to rewrite and give new life to voices that are absent from the dominant archive. Critical fabulation is the process of working with and against the archive in order to transgress and extend its borders, thereby de-stabilizing the imbued authority of the archive. More specifically, critical fabulation elucidates what, by virtue of the archive, has failed to survive. In this essay, I will extend critical fabulation to the realm of contemporary art in order to conceive of 2SLGBTQ+ contemporary artists as archivists of the queer community.[2] I will interrogate the role of critical fabulation in creating what I will call a ‘counter-archive’, an archive that subverts authority and practices of power. I will question how practices of remembrance differ for a marginalised group from the practices of the traditional institutional archive. That is, as accounts of resistance, what modes of representation are taken up by queer counter archives? I will reveal how histories of erasure necessitate creative and imaginative archival methods, exhibiting how contemporary queer artists mine the archive in order to disrupt the authority granted to it as a speaker for History. I will situate my analysis in relation to the works of Zoe Leonard and Cheryl Dunye, Wu Tsang, and fierce pussy[3]; all of whom produce a counter-archive in their work through their use of experimental archival methods and critical fabulation. In 1996, Zoe Leonard and Cheryl Dunye published The Fae Richards Photo Archive alongside Dunye’s film, Watermelon Woman. Dunye’s ‘documentary’ outlines her search into the history of an African American lesbian actress, Fae Richards; or, as she was billed in movies, the ‘Watermelon Woman’. Richards, however, was entirely fabricated by Dunye in order to supplant a lost history. Leonard shot photographs in which Dunye’s friends pose as Richards, as well as her friends, lovers, and family. In doing so, Leonard blurs the line between Dunye’s personal archive and that of Richards. Leonard and Dunye, thus, use critical fabulation to give voice to erased and forgotten Black lesbians. In doing so, they reveal the extent to which fiction is a necessary tool when archiving queer culture, and propose a new understanding of truth, memory, and the purpose of the archive. Tsang, as a transgender woman, similarly interrogates which histories are carried forward, and by whom. In this paper, I will focus on her work for the 2012 Whitney Biennial: an installation entitled Green Room. Green Room functioned as a dressing room for Biennial participants and was also opened to museum visitors when not in use. Inside, Tsang had constructed a two-channel video environment, with the two screens placed on perpendicular walls. She screened her documentary Que Paso Con Los Martes?, which recounts the story of a transgender woman who immigrated from Honduras to Los Angeles and found community in a local Latino gay bar, the Silver Platter. Tsang’s installation takes inspiration from the Silver Platter in its decor to invite viewer participation in the three-dimensional environment. Tsang, then, explores ways of recording queer history through a documentary-like style while, equally, implicating her audience through the fabricated setting. She draws attention to the distinctions between private and public space, as well as the infiltration of queer safe spaces. I will argue that Tsang’s dissolving and blurring of boundaries—the public and private; the fabricated and the real; two-dimensional and three-dimensional—is necessary to the production of a queer counter-archive. The final group of artists I will be grounding my analysis in is fierce pussy: an artist collective formed by queer women in 1991. Their emergence in the midst of the AIDS crisis informs their project to advocate for 2SLGBTQ+ rights and visibility through their work. Their installations were often public and site-specific, using unconventional materials such as billboards, street signs, and toilet paper in order to integrate their message into various facets of everyday life. I am interested in how their work is suffused with activism, mourning, and memorialization. I will centre two of their projects: For the Record and gutter. Both engage in critical fabulation by different means: For the Record imagines a future for those who died from AIDS; gutter edits and rewrites lesbian pulp fiction novels from the 1940s to the 1970s. fierce pussy, therefore, throws into question the heteronormative lens through which the archive has been constructed. To begin, it is necessary to outline what is at stake in this project. Archives are vital for ongoing queer survival and to our lives in the present.[4] A queer counter-archive provides the grounds for imagining queer futures and helps to situate queer identity—both past and present. Nayland Blake’s article, ‘Curating in a Different Light’, reveals how queer people do not have access to a private history, and hence require a public one. Blake writes, ‘Queer people are the only minority whose culture is not transmitted within the family’.[5] In that vein, the 2SLGBTQ+ community has needed to find new strategies to uncover and transmit our histories. Historical erasure and ongoing systemic oppression drastically impacts the ability for 2SLGBTQ+ people to accept and live our queer identities. The past has a continuous hold on, and shapes, our present. To live in the reverberations of this violence, as queer bodies, means to feel those effects and affects acutely. An artistic revisioning of histories of erasure, then, fosters precedence for the ongoing struggle to live one’s queer identity. Thus, a counter-archival project reimagines the past in order to create a livable present, and is integral to both individual and collective processes of healing. Memory, Mourning, and Marginalisation The archive is the ground upon which knowledge is formed and hierarchized; it reveals choices of inclusion and exclusion that are linked to access to power. I will ground my definition of the archive, and its relationship to power, in Jacques Derrida and Michel Foucault’s respective analyses. Derrida and Eric Prenowitz, in the seminal text, ‘Archive Fever: A Freudian Impression’, trace the Western archive back to Ancient Greece and the rule of law. The term archive derives from the Greek arkheion, about which Derrida writes, ‘initially a house, a domicile, an address, the residence of the superior magistrates, the archons, those who commanded’.[6] The etymological root of the archive, then, has two meanings: first, as a structure that houses objects and documents, and second, as the residence of those who command and speak on behalf of the law. The law is the place where people are recognized as agents or not and where personhood is made legible. Therefore, the archive is the house of power and holds authority over memorial processes. Foucault, in a similar way, locates power in the archive in his essay, ‘The Historical a priori and the Archive’. Likewise, Foucault describes the archive as the constraints imposed on what is sayable, or as he calls it, ‘enunciable’. That is, the archive governs the conditions of power that we inherit. The archive promises agency, and yet, at every turn, denies it. It suggests control over the ordering processes, but only so long as they adhere to historically contingent, pre-existing rules. Foucault states the following: ‘The archive is first the law of what can be said, the system that governs the appearances of statements as unique events’.[7] Hence, the archive reveals the conditions of power in which we find ourselves. It is a site in which we can pose questions about how we inherit and perpetuate power. Moreover, the archive is both the system that exercises control over what can be said, as well as the processes surrounding how things are understood. The archive, therefore, is not merely an institution or a site, but rather it is the practice of power. Accordingly, when I refer to a counter-archive, I mean processes that subvert the authority and the ordering processes of the traditional archive. It is necessary to leave this definition vague if we are to resist replicating the methods of the traditional archive. As elucidated by Foucault, the archive imposes a set of conditions upon the sayable in order to preserve discourse that aligns with dominant power structures, casting aside challenges to those structures. In this case, brevity and linearity factor into the reproduction of power because they help create a self-contained narrative and serve to separate the past from the present. Rather than utilising the archive’s documentation processes—that inevitably efface certain histories—artists engage in creative projects that reconstitute our understanding of the archive. James E Young’s essay, ‘The Counter-Monument: Memory against Itself in Germany Today’, is useful for understanding what I mean when I say ‘counter-archive’. Young explores the role of counter-monuments in memorializing the Holocaust and the emergence of the memorial aesthetic in post-war Germany. Traditional monuments tend to memorialize victory, which brings Young to question the way in which Germany has memorialized state-enacted atrocities and mass murder. The traditional monument evades memory through its clear symbolism and lack of ambiguity, thereby doing the memory work for the viewer. The monument, then, becomes a figment of the past and immediately falls outside of our frame of perception. The counter-monument, on the other hand, is concerned with the ongoing hold the past has on shaping our present. In relation to the long ‘Sisyphean’ debates about how best to commemorate loss of millions of Jewish lives during the Shoah, Young writes, ‘[T]he surest engagement with memory lies in its perpetual irresolution’.[8] That is, resistance to a fixed notion of memory creates new spaces of memorialization. The counter-archivist, then, is highly conscious of the challenges they are posing to our ways of knowing and of enshrining certain histories. Departing from the traditional archive’s false claims to objectivity (that conceal its own self-interests in narratives of power), the counter-archive is self-aware of its inability to objectively capture said events. Consequently, the counter-archive engages the viewer by fostering dialogue. In a similar fashion to Young’s counter-monument, the counter-archive implores the viewer to engage in memory work through investment in its own ambiguity and rejection of totalizing narratives. It denies simple resolutions and plain conclusions. Its aim is not to provide answers, but rather to raise questions about how archives have been wielded as tools of selective remembrance and violent oppression. Writing about the counter-monument of the Harburg Monument against Fascism—which invites the public to violate the monument by writing on it their own names and committing to stand against fascism—Young elucidates: [I]ts aim is not to console but to provoke; not to remain fixed but to change; not to be everlasting but to disappear; not to be ignored by its passerby but to demand interaction; not to remain pristine but to invite its own violation and desecration; not to accept graciously the burden of memory but to throw it back at the town’s feet.[9] Counter-archives question the validity of the traditional archive and its omniscient power. They propose that it is not just what we remember that is significant, but equally how we go about remembering. Young argues that the traditional monument impedes memory precisely because the clarity and authority of the memorial does the work for the viewer, thereby absolving the public of their own responsibility to remember. They foster a view of history that is unambiguous and therefore not a site for negotiation or contestation. The traditional memorial, much like the traditional archive, promotes engagement within a rigid, normative structure. It rejects ambiguity, precisely because nuance inhibits its own project. Thus, the archive constructs narratives that adhere to and are vested in narratives of power. Seeing that the counter-archive is concerned not solely with memory, but also with the act of remembering, questions of form are inseparable from the project of remembrance. Indeed, art facilitates questions about the relation between aesthetics and ethics. I will address, in this case, how the language of history and the language of art interact. The task of many contemporary artists is to challenge rather than to affirm cultural rules. Zoe Leonard, Cheryl Dunye, Wu Tsang, and fierce pussy, then, all produce counter-archives by throwing into stark relief the forms and practices of the archive. These artists open up new possibilities for thinking through our queer past, present, and future through their artwork. When art functions as an archival object, moreover, it suggests that artifacts collected and preserved in archives are not innocent but are, rather, charged objects. These artists all blur the boundaries between the artistic and the archival, history and imagination, and fabrication and fact. Although critical fabulation necessitates invention within a narrative, we must be wary of covering up and erasing loss. When playing with the tools of the archive, one must be acutely aware of the risk of replicating its structures of power. The paradox of critical fabulation, then, is that of writing a narrative, while simultaneously indicating loss and silence. Hartman writes, ‘Narrative restraint, the refusal to fill gaps and provide closure, is a requirement of this method’.[10] In this case, leaving space for loss reminds the viewer that critical fabulation cannot offer closure to the dead and to those who suffered in the past. A refusal to romanticise a violent history of oppression is also imperative. Although the project of critical fabulation is based on individual and community healing—‘Loss gives rise to longing, and in these circumstances, it would not be far-fetched to consider stories as a form of compensation or even as reparations, perhaps the only kind we will ever receive’— absence is a reminder that this project cannot fundamentally undo an extensive history of violence and oppression.[11] Hartman’s refusal to expound how to give voice to a profound silence suggests that there is no singular, or prescriptive way, to treat such contradictions. Indeed, the authority on how to write history and loss is central to the archive’s own consolidation of power. Consequently, critical fabulation requires the nuance and ambiguity that the traditional archive refutes in its claim to objectivity. The necessity of maintaining loss as loss, nonetheless, does not undo the reparative nature of this project. The paradox of reflecting a marginalised community back to itself, whilst presenting an abyss, fosters a complex and interesting interaction between the viewer and the artwork. Counter-archives, thus, resist being relegated to the past because they actively engage with and challenge our present. Contemporary artists who create a counter-archive disrupt our conventional relationship to the archive because they force critical engagement, and radically oppose passive acceptance. In promoting a non-linear view of history, counter-archives mimic the traumatic structure that resists a progressive and linear process of healing. Art in the public sphere encourages a stumbling upon it that simulates the experience of flashbacks and of shock that resists stability of meaning. Hence, counter-archives assert the ceaseless irresolution of our own engagement with memory. In doing so, they reckon with the ongoing hold that the archive has on our lived present. Ann Cvetkovich’s text, An Archive of Feelings: Trauma, Sexuality, and Lesbian Public Cultures, explores the way that archives of trauma often resemble 2SLGBTQ+ archives. Both archives similarly rely on ephemerality and memory, which in their very transience and unreliability, challenge the concept of the archive: Trauma challenges common understandings of what constitutes an archive. Because trauma can be unspeakable and unrepresentable and because it is marked by forgetting and dissociation, it often leaves behind no records at all. Trauma puts pressure on conventional forms of documentation, representation, and commemoration, giving rise to new genres of expression, such as testimony, and new forms of monuments, rituals, and performances that can call into being collective witnesses and publics. It thus demands an unusual archive, whose materials, in pointing to trauma’s ephemerality, are themselves frequently ephemeral.[12] Cvetkovich notes that sites of grief and trauma are radical spaces, and she questions how we might begin to inhabit these spaces and reclaim agency through them. She begins by arguing for a wider view of trauma, one that moves beyond the extreme and those who experience trauma directly, and towards trauma’s seemingly mundane reverberations and those on the border of trauma. fierce pussy—as lesbians on the edge of the AIDS crisis—encapsulate the experience of trauma through their positioning as both insiders and outsiders. Consequently, I will question how creative responses to trauma help us to grapple with immense pain. To reiterate, Cvetkovich points to the affective power of a 2SLGBTQ+ archive. She illustrates how queer archives position themselves in opposition to the traditional archive because they do not solely document and yield knowledge but, equally and as importantly, feeling. Cvetkovich writes, ‘Gay and lesbian archives address the traumatic loss of history that has accompanied sexual life and the formation of sexual publics, and they assert the role of memory and affect in compensating for institutional neglect’.[13] In this case, personal testimony is vital to the production of a queer counter-archive, precisely because it recentres feelings of love and loss that are integral to the queer experience. Thus, an emphasis on feelings and affects provides the grounds for fostering a queer public memory. The Feigned Archive: Zoe Leonard and Cheryl Dunye’s The Fae Richards Photo Archive Leonard and Dunye’s The Fae Richards Photo Archive is a record of Black lesbian absence from the archive. Dunye felt disillusioned with the missing presence of Black lesbians in the archive and Watermelon Woman chronicles her search for evidence of Fae Richards: the fictional persona that she created to fill this lack. Leonard staged archival material to create evidence of Richards’s life for Dunye’s film, thereby blurring the distinction between fact and fiction (a dichotomy that the dominant archive is heavily invested in). In the film, Dunye searches for evidence of Richards in the Centre for Lesbian Information and Technology (CLIT), a fictive archive based upon the Lesbian Herstory Archives in New York. The ordering processes of the archive, then, construct narratives and shape the way we make knowledge claims. In opposition to the dominant archive, however, a queer counter archive insists on different ordering processes. In dialogue with Julia Bryan-Wilson, ‘Imaginary Archives: A Dialogue’, Dunye discusses The Fae Richards Photo Archive and Watermelon Woman. She states, ‘the queerest things about archives are their silences—their telling blanks and perversely wilful holes’.[14] These ‘holes’, gaps, and silences that Dunye articulates resonate with Hartman. Hartman, in this case, questions how we can bring these impossible stories to the surface. Impossible in the sense that, as much as we might long for such histories, we can never know them. Giovanna Zapperi’s essay, ‘woman’s reappearance: rethinking the archive in contemporary art—feminist perspectives’, explores feminist reworkings of the past through contemporary art. Zapperi expresses the impossibility of Fae Richards: ‘Fae Richards can only exist thanks to a present-lesbian gaze that is looking at her through the lenses of the liberation movements’.[15] That is, Richards—as a figure documented in the archive—can only exist because activism and political change allowed Dunye, as a lesbian and as an African-American, to be in a position where she could articulate a life for Richards. Hence, the film creates a Black lesbian counter-archive in two ways: in its documentation of Richards, and in its reputation as the first feature film to be directed by a Black lesbian. The importance of bringing Richards to life, however, cannot be understated. Richards acts as a stand-in for Black lesbians whose stories we can never know. The overlapping of Richards’s and Dunye’s archive, likewise, is acted out in the photographs themselves. As Dunye’s own friends, lovers, and community pose in the photographs, they seem to occupy an atemporal zone. Bryan-Wilson states, ‘The fictional patina they had in relation to the film has been overlaid with a different, lived history—[Dunye’s]’.[16] The past and present blend, thwarting the dominant archive’s claims to linearity. The counter-archive’s interactions with memory, history, and the archive, then, resist the distinct dichotomization of history from the present. Similarly, it blurs the line between fact and fiction. Despite the fact that the community depicted in the photographs might not necessarily have existed at that precise date, it nevertheless existed as a vibrant queer community. In several of Leonard’s photos, we see depictions of the importance of queer community—alluding to the role the counter-archive’s play in constructing queer public culture. In one, a group of five women sit around a table, drinking alcohol, and smiling at the camera. Fae sits on the left-hand side, perched on the lap of her lover and director, Martha Page. She leans in, smiling as her right hand rests on the side of the table, holding a cigarette. The three women to the right of Martha are unidentified, but a scribble in blue ink along the bottom of the image reads, ‘Me and the girls at the ‘Hotspot’. The women in the photo are unabashedly identified as queer women based on coded signifiers that are recognizable to other queer women: men’s clothing, short haircuts, and the way they occupy space in a forward and comfortable way that counteracts the male gaze. Furthermore, Leonard’s use of photography as a medium allows her to critically fabulate the past. Zapperi writes, ‘Leonard has been interested in the photographic image’s implication in the production of sexual difference, as well as in the way in which photography is concerned with the passing of time’.[17] Photography is entangled with history and imprecise memory. Like the archive, photography often lays false claims to objectivity and seeks to distance the photographer from their subject. Nevertheless, what is made visible—through the lens—and how we interpret images reflect systems of knowledge and power. Acts of seeing are products of tensions between external images and internal thought processes. How we see, then, is socially constructed. Leonard, thus, exposes the medium of photography as something that can be tacitly manipulated in order to convey particular narratives. She simulates a variety of photographic genres (photo booth, family snapshot, film still, press photograph, portrait) in order to appropriate and subvert the methods of the traditional archive and draw attention to its own methods of deceit. Photographs, by virtue of their nature, signify that their subject is important, and Leonard, in this case, asserts the importance of lesbian lives and intimate queer feelings. They also ‘conjure up vulnerability, disappearance, and melancholia. The images are often damaged, cut or stained, reinforcing their meaning as witnesses of past events’.[18] The wear and tear on the surface of the photographs is perhaps one of their most deceptive elements—their feigned age evokes a nostalgic and affective response from the viewer who is convinced that Fae Richards in fact lived. Nevertheless, The Fae Richards Photo Archive nods to its own artifice. Although Leonard and Dunye play with the viewer’s conceptions of fact and fiction by drawing us into the fictionality of Fae Richards as if it might be real, they often subtly gesture to their work as being fabricated. Constructing Richards as an actress allows Leonard to play around with photos of sets and cameras, alluding to processes that she is similarly engaging in and drawing attention to her own situatedness as a photographer. In one photograph, Martha stands with her hands on her hips before a camera. The caption reads, ‘Martha Page at Newark Studios. Photographed for the story ‘The Girl Director of ‘Jersey Girl’’ in The Philadelphia Inquirer. October, 1931’.[19] The studio light on the right hand side of the photograph illuminates the image on a diagonal axis. Martha’s face and upper torso are clearly visible, while the lower half of the photo slips into obscurity. In the darkness, we can make out the silhouette of a seated figure behind Martha. Their face appears to be covered by a dark piece of fabric, alluding, perhaps, to the individuals whose presences are purposefully obfuscated from the archive. The explicit presence of harsh studio lighting in the photograph, then, draws the viewer’s attention to the way that technology is manipulated to control how and what we see. Moreover, the lighting works to cast shadows, creating a doubling of figures and objects in the scene: Martha’s shadow and that of the camera are cast onto the brick wall. Indeed, this doubling produces a metapicture.[20] Leonard creates a picture within a picture by drawing our attention to the fallibility of photography. She hints to the photographic process to make the viewer acutely aware of their own participation in the image through the act of seeing. As viewers, we are positioned behind the apparatus, which externalises the artistic standpoint. Put in the place of the photographer, the viewer is forced to consider the decisions that went into producing this image. The meta picture is self-referential: thinking about its own status as a picture, calling attention to its status as ‘art’, and referring to its own artifice. Leonard is thinking about the tradition of photography—particularly in its intimate relation with the archive—and her own relation to it. Her consciousness of the medium, therefore, necessarily subverts claims to objectivity. The book itself is constructed in the modus operandi of the archive. Dunye and Leonard draw us into the artifice, only to let up their simulation at the end of the book to subvert the fallibility of the dominant archive. The end of the book includes a list of cast and crew, drawing attention to the project’s deception. It is also in this list that we learn that Dunye herself appears in an image as ‘Black Dyke on Roof #2’. The use of derogatory language in the cast list alerts us to the tendency of the dominant archive to weaponize such terms against queer people. Leonard and Dunye, then, reclaim this language in the same way that they reclaim the archive: drawing parallels between the way derogatory language and the archive are similarly wielded as tools of violence and oppression. Moreover, Dunye’s presence creates a slippage between past and present that leads the viewer to question the readiness with which they often accept the claims of the dominant archive. Speaking to Bryan-Wilson, Dunye tells us that the feigned archive is ‘a mixture of the truth and fictions in [her] life and how they coexist’.[21]The Fae Richards Photo Archive, thus, challenges our received ideas about temporality, truth, memory, and the purpose of the archive. This project is facilitated by desire and Zapperi writes, ‘Desire here is what mediates the relationship between past, present, and future, positioning the artist’s subjective voice in the process of constructing alternative forms of knowledge’.[22] Thus, layers of queer desire overlap in the relationships portrayed in the photographs themselves, and in the ever-present queer desire to unearth a lost history. ‘[T]he site of this performance…is not necessarily a safe space for all the communities referenced in this work’: Queer Memory and the Museum Space in Wu Tsang’s Green Room Tsang’s 2012 installation, Green Room, creates a queer counter-archive by using critical fabulation to reproduce queer safe spaces within the museum—a historically unsafe space for the 2SLGBTQ+ community, because of its erasure and misrepresentation of queer identities. Unlike Leonard and Dunye, who produce a counter-archive of desire and intimacy, Tsang is interested in queer public culture. Her work plays with the binary of public and private spheres in order to call attention to how gender and sexuality operate within this dichotomy. At the 2012 Whitney Biennial, Tsang exhibited two pieces: Green Room, and a feature-length film, Wildness, that both centre around the gay bar Silver Platter. Tsang, therefore, archives queer community building practices. She problematizes the paradox of the public/private binary by revealing how queer safe spaces often straddle and deconstruct this binary. Felix Gonzalez-Torres’s essay, ‘Public and Private: Spheres of Influence’, questions how the binary of public and private is used to preserve heteronormativity and suppress queer identity. He argues that the interests of the public sphere are defended through the regulation of the private: ‘[T]he bed is a site where we are not only born, where we die, where we make love, but it is also a place where the state has a pressing interest, a public interest’.[23] The separation of private and public life is therefore a delusion as it applies to marginalised communities. Gonzalez-Torres uses statistical evidence to support his argument that certain private spaces are more public than others—that is, more subject to state control. He writes, ‘There is no private sphere in the modern state. We can only speak about private property. There is no private space, no private entity. At least not for certain groups when it is still legal and endorsed by the state to oppress and discriminate because of who we love in private and, yes, outdoors too’.[24] That is, both the public and private spheres have always been contentious for the 2SLGBTQ+ community. Queer private spaces are often highly regulated by state control, while the public sphere has always posed threats of both violence and erasure to queer people. Tsang’s Green Room, to reiterate, operates as both a dressing room for Biennial performers and as an art piece, open to museum visitors when not in use as a dressing room. Tsang, then, creates an installation that places itself, simultaneously, within both the public and private sphere, thereby collapsing distinctions between the two. Tsang subverts the assumption that art is inherently decorative by building a space that is both artwork, and functional (ie intended to support art). The space held custom designed furniture, mirrors, and carpet, inspired by the Silver Platter, but equally had to be designed to meet the architectural needs of the dressing room space: such as mirrors with vanity lighting, desks, chairs, and clothing racks. As Green Room demands, and indeed was built for interaction, it gradually accumulates the battering of use and unsettles conceptions of art as being untouchable. Installations often disrupt the traditional museum-going experience by being both experiential and, frequently, ephemeral. Ephemerality—as it has been previously discussed in relation to Cvetkovich’s theoretical work—is an oddity in the archive. If the archive relies on permanence, the volatility of ephemera throws archival practices into disarray. As Cvetkovich writes, ‘The stock-in-trade of the gay and lesbian archive is ephemera’, because they produce ‘the unusual emotional archive necessary to record the often traumatic history of gay and lesbian culture’.[25] Tsang’s work, as an installation, is temporary, which throws into question its capacity to act as an archive. Nevertheless, she plays with these ideas of impermanence and wear in Green Room in order to reference the mutability of queer culture. The wear and tear of the space itself creates a physical archive of utility. As Green Room fluctuates between a functional lounge area and an art installation—which equally, and in their own right, demand engagement and use—it forces the viewer to be conscious of the way in which they occupy the space. Like Young’s counter-monument, Tsang’s counter-archive demands viewer participation. Memory work, that is, demands active engagement and labour on the part of the viewer, which is why I call it memory work. Tsang deconstructs the practices of the archive by allowing, and encouraging, the violation of her installation. Wear and tear make known the history of the space, thereby drawing attention to the history of the museum space as a whole, and its record of violence, erasure, and oppression—a history that parallels, and often intersects with, that of the archive. Moreover, Tsang’s nod to gay bars, and spaces of camaraderie (the green room) in her work highlights queer safe spaces that are, and have been historically, vital to the 2SLGBTQ+ community. These spaces provide the ground on which community can be built—returning to Blake’s point that queer people do not have access to this in the home/private sphere—by providing a space where those who are forced to hide their identity (often, for their own safety) are able to comfortably inhabit their queerness. By inviting the public into a semi-closed space, Tsang highlights the potential danger posed by the infiltration of cisgendered heterosexual people into queer spaces.[26] Tsang questions the ingrained comfort that cis-het people often exhibit in 2SLGBTQ+ spaces without realizing that their presence is often threatening to the community whom that space was built for. Tsang therefore insists on centring queer voices. In Green Room, Tsang screens Que Paso Con Los Martes? This two-channel video focuses on the Los Angeles queer community and is specifically centred on the experience of a trans woman who fled persecution in Honduras, finding a vibrant queer community at the Silver Platter. Tsang prioritizes her voice in the space and insists that gay bars provide a haven for queer people from the persecution they face in the external world. Her voice echoes through the room; viewer participation, in this case, hinges on the act of listening to and learning from queer testimony. Tsang thereby questions what voices get to be heard, both in terms of how the archive actively erases and neglects queer voices, as well as in relation to the voice as being culturally and politically constituted.[27] Rita Gonzalez’s essay, ‘Speech Acts’ explores how Tsang uses voice in her work in order to disrupt normative notions of gender and sexuality. Tsang is interested in the voice as a culturally and politically conditioned entity. She describes her own artistic practice as invested in exploring the voice as a tool for subverting cisnormativity and rebuking ‘normative readings of a feminine or masculine voice, with consideration to the sensitivity around voice and ‘passing’ in trans communities. Voice can seem to exceed the body, and modes of recording and playback in music and filmic sound can be used to break down normative readings of gender and sexuality’.[28] That is, Tsang’s use of testimony (and therefore voice) in her work necessarily questions notions of authenticity and the ways in which gender presentation and embodiment are highly regulated into pre-existing cis-normative and binary structures. Gonzalez writes, ‘the voice can be used to disturb and contest, but also serves to conform and restrict identity’.[29] Accordingly, in Green Room, Tsang is not only thinking about the voice as isolated, but rather as highly culturally and environmentally situated. Crafting a three-dimensional environment, while simultaneously screening a two-channel documentary film, allows Tsang to create a fully immersive experience. She states: ‘My language is not about designing words or even visual symbols for people to interpret. It is about being in constant conversation with every aspect of my environment, reacting physically to all parts of my surroundings’.[30] The installation creates a conversation through its various aspects and shifting purposes. The video reflects back on itself through the dressing room mirror, creating the unsettling effect of doubling that which is already doubled through the presence of multiple display devices. Moreover, the film itself shifts between interviews and atmospheric shots of the Silver Platter. Tsang foregrounds the relationship between voice and environment, suggesting that certain environments are more conducive to certain voices being heard. While the dominant archive silences queer voices, Tsang suggests that queer bars might produce their own counter-archive of queer experience. Furthermore, being brought into the installation implicates the viewer. Tsang’s reconstructed physical space of the Silver Platter evokes the highly political history of gay bars. Gay bars have always had strong ties to political activism and in 1969, the gay liberation movement began in retaliation against the police raids of Stonewall Inn in New York City. The viewer necessarily becomes enmeshed in this history upon entering Green Room. In 2011, Tsang made a blog post in advance of her performance of full body quotation at a New Museum Fundraiser. She reflects on the history of queer voices in the museum space; ideas that she continues to develop through her work in Green Room. I would like to end this section with Tsang’s statement, because it contextualises acts of seeing in Green Room. Tsang forces the viewer to reflect on the social, political, and cultural situatedness of their own gaze and how it affects their engagement with the piece. Tsang considers the place of queer performers in the museum environment, particularly at exclusive events: ‘the role that performance artists often play in [museum fundraisers], as being complicit ‘entertainment’ jesters for elite patronage of museums’.[31] She considers how best to engage with such a complex issue: not performing, and risking further distancing queer people from museum spaces, or, perform and exposing herself and her larger community to further harm. Tsang, thus, drafts a statement to contextualise her work and force her audience to think critically about the way that they, and museum spaces as a whole, continue to perpetuate violence against the 2SLGBTQ+ community: Tonight’s performance features all misappropriated material. We are channelling voices of people involved in the making of the film Paris is Burning twenty years ago. Originally I wanted to keep this source secret because I didn’t want you to take these voices for granted as being ‘authentic’. But the site of this performance (i.e. a party at the New Museum, Performa, downtown Manhattan, etc.) is not necessarily a safe space for all the communities referenced in this work. If you wanna witness this; please first recognize that we exist. In order to fall apart as complex beings, we need first to be able to live.[32] Tsang prompts viewers to consider the way in which they carry forward such a violent history. She relies on behavioural conventions and norms that are at play in the museum space: that people be respectful of and quietly attentive to the art, for example. These conventions have historically made museums more accessible to certain groups of people: white, upper-class, and well educated. Tsang subverts these same norms by using them to encourage people to hear and listen to queer testimony, thereby building a queer counter-archive. Rage as Grief in the Work of fierce pussy fierce pussy formed at the crux of the AIDS crisis in 1991, and as such, their work is highly political and deeply concerned with the advocation of queer rights and visibility. Their work has often intersected with the archive, and they have worked in the past with the Lesbian Herstory Archives in New York City. In this section, I will be focusing on two of their projects: gutter (2009) and For the Record (2013), because these works best encapsulate the creation of a counter-archive through critical fabulation. fierce pussy’s site-specific work, like Tsang, is deeply informed by the public/private binary. They use public space as a tool for their own activism. Although all the artists I have discussed respectively use their art to advocate for 2SLGBTQ+ rights and visibility, fierce pussy’s message is more explicitly directed towards the cis-het outsider in response to the AIDS crisis. Cvetkovich writes, ‘The AIDS crisis offered clear evidence that some deaths were more important than others and that homophobia and, significantly, racism could affect how trauma was publicly recognized’.[33] Their work, then, is informed by this period of national trauma and mourning for the 2SLGBTQ+ community. Additionally, Cvetkovich’s work on trauma takes interest in those living in proximity to trauma, including lesbians on the edge of the AIDS crisis. She is interested in the roles lesbians played ‘as caretakers and activists’ and how this legacy is pervaded by ‘the privilege of moving on because they have remained alive’.[34] fierce pussy’s own work, in this case, must be analysed through the spectre of death from which they arose. Cvetkovich traces the queer archival impulse to the reckoning with death and mortality in the wake of the AIDS crisis: ‘This encounter [with mortality] produces the archival impulse, the desire to collect objects not just to protect against death but in order to create practices of mourning’.[35] Death thus provides the impetus for recording one’s history. In the reverberations of loss, the desire to record a social and cultural history strengthens. All the artists I have discussed, in this sense, are grappling with profound loss; be it death or archival absence, they similarly signify the pressing need to create a queer counter-archive. Nevertheless, the AIDS crisis made apparent that this project is not solely concerned with documentation, but rather, and perhaps more pressingly, activism. Queer artists create a counter-archive precisely because the dominant archive lacks the means to capture the grief, trauma, and oppression that it inflicts: ‘We knew deep down that we had to create our own rites and rituals if we were to truly honour and acknowledge our grief’.[36] This search for new modes of mourning is consistent with a counter-archival project, which seeks to create news processes of remembering that arise out of an effaced history. Although fierce pussy’s work is permeated by feelings and affects generated by the AIDS crisis, For the Record explicitly confronts the profound loss caused by the epidemic (and the government’s failure to adequately respond). Produced in 2013, it is the more recent of the two projects that I will be touching on, but I want to begin here because of its direct link to the AIDS crisis. The project was centred around an exhibition at Printed Matter, but also featured a series of posters, stickers, postcards, and downloadable broadsides.[37] fierce pussy’s work relies on text, often using succinct, clear, and resonating language to convey their message. These tactics resemble practices traditionally associated with advertising, which is also consistent with their use of spaces designated for advertising (e.g. windows, alleys, and billboards, etc.). In For the Record, they repeat the tagline: ‘if [he/she/they] were alive today’. fierce pussy’s use of language, therefore, creates a counter-archive of loss, even as they refuse to name victims. While the refusal to name might first appear as a depersonalization of the trauma, I argue that it accentuates the widespread nature of the crisis. The loss of lives, then, is equally the loss of records, names, and a culture. The generalising language, moreover, is undercut by the following statements; often intimate, they implicate the viewer. Phrases such as: ‘you’d be texting her right now’, ‘you’d be so her type’, ‘he would have you on your knees’, ‘you’d still be arguing about that’, and ‘he’d have his arm around you’ suggest familiar, unremarkable actions (texting, dating, sex, fights, touch). Nevertheless, along with the repetition of ‘you’, the statements suggest attachment. The viewer, then, feels the loss as if it was their own loved one and is forced to reckon with their own relation to the crisis. To return to Hartman, although the act of critical fabulation cannot possibly liberate the dead, its resonances are felt in the living that are finally given the opportunity to heal. For the Record mourns friends, families, lovers, artists, and activists through the language of lives cut short. The declarations imagine a possible present that the ‘if’ reminds us is impossible. The font is printed in a black, sans-serif typeface, apart from the word ‘AIDS’, which is printed in red. The posters state, ‘if he were alive today he’d still be living with AIDS’. The emphasised ‘AIDS’ suggests the incoherency of living with a disease, so long considered a death sentence. Moreover, it serves to make AIDS, which is often invisible, visible. The lack of punctuation, moreover, implies a kind of urgency—that of a crisis improperly handled by the state, because of whose lives were being lost. fierce pussy, thus, draws attention not only to the act of dying of AIDS, but also to the ongoing struggle for those living with the disease in the present. fierce pussy’s work is suffused with rage and militancy as a response to trauma and frustration. Cvetkovich draws on Douglas Crimp, finding that trauma often elicits ‘militancy as an emotional response and a possible mode of containment of irremediable psychic distress’.[38] Anger, in this case, saturates queer mourning rites in response to the AIDS crisis. The state’s response to the AIDS crisis was informed by homophobia and racism; because marginalised communities were disproportionately affected by AIDS, the state felt no urgency to respond. The discourse surrounding the crisis, then, centred around bigotry. fierce pussy’s public advocacy for queer rights asserts that visibility and perception matter. In an interview, they iterate their interest in public space, stating, ‘We don’t see public space as neutral or abstract’.[39] Similar to Gonzalez-Torres, fierce pussy is thinking about public space as paradoxical for the 2SLGBTQ+ community: ‘Historically, public space has held a contradiction for queer people; on the one hand we have been invisible and on the other hand we are frequently the target of violence in public’.[40] They respond to this contradiction through their art, that inserts queer narratives into the public sphere. Gutter, like For the Record, relies on language and storytelling. By rewriting and editing lesbian pulp fiction novels from the 1940s through 70s, fierce pussy gives lesbians a chance at a happy ending. Gutter arose out of fierce pussy’s residency at the Lesbian Herstory Archives and was originally shown in 2009, at the exhibition ‘Tainted Love’ at La Mama Galleria. In the adjoining alleyway, Extra Place, they hung their posters along the brick wall to create a public mural. The novels, not necessarily written by lesbians, are consistent with mainstream media’s tendency to ‘leave lesbians sad, lonely, or dead’.[41] Cvetkovich argues that these representations have ‘become part of the archive of lesbian culture’.[42] The literary trope, ‘Bury your Gays’ (also called ‘Dead Lesbian Syndrome’), emerged as a way to write 2SLGBTQ+ characters, without breaking decency laws that forbade the promotion of ‘perverse acts’.[43] ‘Bury your Gays’ alludes to the tendency to kill off queer characters as punishment for their homosexuality and/or gender deviance, presenting such traits as inherently immoral and undesirable.[44] fierce pussy mines the archive of lesbian pulp novels, tainted with moral deprivation, condemnation, and misery. They redact and edit texts to reveal a counter-archive of language, one where lesbians are allowed to experience pleasure. fierce pussy states, ‘From the position of the reader we become the writer; by crossing-out and underlining we re-edit these stories to more accurately reflect our experience and desire. In our version, women can have hot sex and ‘happy endings’—in both senses of the word’.[45] I want to pause my analysis of gutter to problematize ‘happiness’ and ‘happy endings’. To embark on an analysis of queer happiness, we must explore what the term implies outside of a heteronormative structure. Sarah Ahmed’s ‘Killing Joy: Feminism and the History of Happiness’, problematizes who is allowed to be happy. Ahmed uses the example of one’s wedding day, often described in advance as the ‘happiest day of your life’. That is, happiness promises itself as a reward for following a set path, one that is inherently cisgendered and heterosexual. Ahmed writes, ‘Affect aliens, those of us who are alienated by happiness, are creative: not only do we want the wrong things, not only do we embrace possibilities that we are asked to give up, but we can create lifeworlds around these wants’.[46] fierce pussy, then, subverts the expectations tied to happiness that often deny it to queer people. They suggest that happiness, like the language that they manipulate, is malleable and holds a multiplicity of meanings. In writing out negative emotions, they do not negate or dispel negative affects, but rather present lesbians with the possibility of happiness in a way that deviates from heteronormative standards. In opposition to the happy endings it presents, gutter is saturated with rage. The blacked-out text implies frustration and anger. fierce pussy states, ‘The way history is written often denies our existence. We go back into these texts to reinsert the lesbian experience: our anger, our desire, our impact, our lives’.[47] Hence, they disrupt the erasure of queer voices in the archive through their own erasure of text. Like Tsang, fierce pussy is concerned with whose voices get to be heard. They question notions of authorship by upturning the process of reading into one of writing. Reading, then, rather than being prescriptive, becomes innovative. In gutter, texts that have historically worked to suppress queer identity, become liberatory as they open up spaces of exploring queer desire. Furthermore, the act of opening up new spaces is mirrored through fierce pussy’s use of the public sphere. They locate queer sex acts—’Drop your skirt. Now step out of it’—in the public sphere, thereby questioning the erasure of queer identity from public space. 2SLGBTQ+ people are often either required to suppress their own queerness in public settings, or on the other hand, it is actively erased through normative presumptions of sexuality. fierce pussy takes private acts and transforms them into a public, shared experience. About their own work, they write, ‘It is often through the act of reading that young people first find possible reflections of their identity. From the first time one looks up the word ‘lesbian’ in the dictionary, the pages of books provide a safe and secret space to explore one’s fantasies, desire and identity’.[48] In gutter, they move this hidden act into view by building a queer counter-archive for future generations of lesbians, who will hopefully not have to live in such a hetero-saturated world. fierce pussy makes space for queer visibility, which they define in opposition to gay visibility: ‘Today, ‘gay visibility’, which is more about assimilation and gay marriage, has replaced queer visibility and a vision of radical social change’.[49] This vision that fierce pussy articulates in their work is akin to the counter-archival project that denounces normative archival practices in order to make new spaces for queer identity. Fostering a queer public memory is more important than being palatable to the dominant culture. Conclusion The artists discussed in this essay delineate a counter-archive through their use of critical fabulation to ‘recover’ an unrecoverable past. They question the imbued authority of the archive to give voice to certain histories, and inevitably, to silence others: ‘The archive is, in this case, a death sentence, a tomb’.[50] The archive, therefore, is problematic for 2SLGBTQ+ people who find ourselves actively erased and persecuted in dominant discourse. Leonard, Dunye, Tsang, and fierce pussy create new narratives of queer memory through contemporary art. In doing so, they fabricate an atemporal zone in which queer voices can be heard. Their art is situated outside and between the past, present, and future of queer identities. From a space of trauma, they use their art to reclaim agency and unveil power relations in the archive. Leonard and Dunye’s The Fae Richards Photo Archive fabricates the archive of Fae Richards to produce unstable images that are as much tied up with our present as they are with the past. By bringing to bear the methods of the archive, they expose its very precarity and artifice. They give life to Fae Richards in the present—as a stand-in for the many Black lesbians that have been denied a presence in the archive—and yet disclose her fictionality to indicate loss and reveal the impossibility of redeeming the lives of the dead. In Tsang’s Green Room, she creates a fabricated setting rather than a fabricated persona. Tsang displaces the politics of the gay bar into the museum space, in order to reveal the intimate ties between 2SLGBTQ+ oppression and artistic representation. She centres queer testimony in order to question associations between voice and authenticity. Displacement, then, also exposes certain environments as houses of power, namely the museum and the archive. Tsang’s interest in the public/private binary and how it has been historically contentious for queer people is also a factor in fierce pussy’s work. They exhibit site-specific work to implicate cis-het outsiders in queer trauma. By moving private queer experiences into the public sphere, fierce pussy creates new spaces for queer visibility. Like Tsang, they problematize the paradox between safe and unsafe spaces. Safe spaces, that is, are always under attack and risk infiltration and gentrification if they belong to a marginalised group. In this case, there is no way to guarantee safety without radical social change. These artists play with memory in order to create stories that trouble received ideas of truth and objectivity that are rooted in the archive. Artistic practices allow the past to be written anew by virtue of the conditions in which we now find ourselves, in the wake of the queer liberation movements of the late twentieth-century. Creativity and imagination are thus necessary in the production of a counter-archive. Leonard, Dunye, Tsang, and fierce pussy respectively produce counter-archives of queer genealogy. Critical fabulation is a restorative practice for the living, providing the means for individual and collective healing. Through the act of fabricating new narratives, we are able to facilitate new ways of mourning lost memories. Sophia Dime Sophia Dime (they/them/she/her) holds an Honours BA in Contemporary Studies and English with a certificate in Art History from the University of King’s College in Halifax. Sophia has held positions at Esther Schipper Gallery in Berlin, Eyelevel Artist Run Centre in Halifax, and the Magenta Foundation in Toronto. This upcoming fall, they will begin their MA in Art History at Columbia University in New York. [1] Cheryl Dunye and Zoe Leonard, The Fae Richards Photo Archive (Artspace Books 1996). [2] Throughout this paper, I will use queer and 2SLGBTQ+ interchangeably. Although ‘queer’ is quite widely accepted as an umbrella term for the community (because it encompasses both gender and sexuality, as well as a deviation from heteronormative structure), it is important that we recognize the historical and ongoing harm that the term continues to cause. Many members of the 2SLGBTQ+ community are uncomfortable with the term because it has been historically weaponized against 2SLGBTQ+ people. It is important to be aware of how the reclamation of language is often highly contested and continues to be harmful. [3] Zoe Leonard is also a founding core member of fierce pussy. [4] To situate my own perspective, I want to call attention to my identity as a white, Jewish, non-binary lesbian. Throughout this paper, I will refer to the 2SLGBTQ+ community in relational language. [5] Nayland Blake, ‘Curating in a Different Light’ in David J Getsy (ed), Queer: Documents of Contemporary Art (MIT Press 2016) 120. [6] Jacques Derrida and Eric Prenowitz, ‘Archive Fever: A Freudian Impression’ (1995) 25(2) Diacritics 9. [7] Michel Foucault, The Archaeology of Knowledge and the Discourse of Language (Pantheon Books 1972) 129. [8] James E Young, ‘The Counter-Monument: Memory against Itself in Germany Today’ (1992) 18(2) Critical Inquiry 270. [9] ibid 277. [10] Saidiya Hartman, ‘Venus in Two Acts’ (2008) 12(2) Small Axe 12. [11] ibid 4. [12] Ann Cvetkovich, An Archive of Feelings: Trauma, Sexuality, and Lesbian Public Culture (Duke University Press 2003) 7. [13] ibid 241. [14] Julia Bryan-Wilson and Cheryl Dunye, ‘Imaginary Archives: A Dialogue’ (2013) 72(2) Art Journal 83. [15] Giovanna Zapperi, ‘woman’s reappearance: rethinking the archive in contemporary art—feminist perspectives’ (2013) 105 Feminist Review 33. [16] Bryan-Wilson and Dunye (n 14) 83. [17] Zapperi (n 15) 28-9. [18] ibid 33. [19] Dunye and Leonard (n 1). [20] For more on the meta picture and the way in which art theorises about itself, see William John Thomas Mitchell, ‘Metapictures’ in Picture Theory: Essays on Verbal and Visual Representation (University of Chicago Press 1994). [21] Bryan-Wilson and Dunye (n 14) 84. [22] Zapperi (n 15) 27. [23] Felix Gonzalez-Torres, ‘Public and Private: Spheres of Influence’ in Getsy (n 5) 90. [24] ibid. [25] Cvetkovich (n 12) 243-4. [26] I will henceforth be referring to ‘cisgendered heterosexual’ as ‘cis-het’. [27] Rita Gonzalez, ‘Speech Acts’ in Elodie Evers et al, Wu Tsang: Not In My Language (Walther König 2015) 23. [28] ibid 26. [29] ibid 23. [30] ibid 25. [31] Wu Tsang, ‘in order to fall apart as human beings, we need first to be able to live’ in Getsy (n 5) 211. [32] ibid 212. [33] Cvetkovich (n 12) 6. [34] ibid 160. [35] ibid 269. [36] ibid 266. [37] fierce pussy, ‘projects’ accessed 10 March 2022. [38] Cvetkovich (n 12) 162-3. [39] fierce pussy, ‘Interview’ in Getsy (n 5) 223. [40] ibid 223. [41] Cvetkovich (n 12) 253. [42] ibid 253. [43] Hailey Hulan, ‘Bury Your Gays: History, Usage, Context’ (2017) 21(1) McNair Scholars Journal 18. [44] In contemporary media, queer characters are still killed off at inordinate rates. Cf. ibid. [45] fierce pussy (n 39) 223. [46] Sara Ahmed, ‘Killing Joy: Feminism and the History of Happiness’ (2010) 35(3) Signs 593. [47] fierce pussy (n 39) 224. Emphasis added. [48] ibid 223. [49] ibid 224. [50] Hartman (n 10) 2.

Introduction The human–animal relationship, as a concept of study, spans multiple disciplines and indeed has been an area of interest across both time and geography. At its core are historic and cultural norms which often go unchecked and unquestioned. The set of legal rules governing human–animal relationships is known as animal law.[1] This area of law is a complex web of rules that govern many relationship types and situations related to animals. At an academic level this area of law is divided across ideological lines—welfare versus rights. The two schools converge in some areas of thought but are largely at odds in relation to their respective positions. The ideological position of those in the animal welfare school of thought is that animals can be utilised by humans for their daily living needs but that it must be done in a manner that upholds certain welfare standards in terms of the animals’ experience of life.[2] Whereas, the animal rights ideological position perceives animals as sentient beings who should have certain rights to uphold their place in society as living creatures.[3] This ideological division is not the only problem evident in the animal law field. Additional critiques include: it being static;[4] selective in terms of application; lacking in legal and transnational protection regimes; and primarily contained in secondary law, which is typically not legally binding.[5] Peters has argued that the current top-down approach runs the risk of lacking cultural sensitivities and imposing cultural and imperial standards.[6] Thus, she suggests that animal law will only positively contribute to society when it grows from the bottom up.[7] Finally, little has been done to align animal law and human rights law in a complementary manner (ie exploring and accounting for human cultural variation when designing and applying the laws). Animal law, like environmental law, is central to population health, environmental sustainability, and biodiversity. Zoonotic diseases are a real risk to the world’s population; soil erosion due to overgrazing is a serious environmental risk; and deforestation is detrimental to the planet’s biodiversity. As such, animal law has global reach and impact and thus its fractured nature needs urgent attention. The COVID-19 crisis has focused experts’ and indeed citizens’ minds on the area and yet discussions remain largely restricted to discipline-specific debates and traditional approaches to regulations and guiding practices. It may be argued that animal law is following a similar trajectory to environmental law, which only recently became a key legal speciality. Environmental law is now a rapidly growing area with over 1200 courts and tribunals operating across 44 countries.[8] It has become a legitimised legal speciality as a result of a number of facilitators: its alignment with human rights, public support for environmental issues, scientific support for a need for action, and a public health/survival debate.[9] Animal law has not had the benefit of these key drivers heretofore. However, there is now increasing public support for ethical produce and the recent COVID-19 pandemic has brought the human–animal relationship into mainstream discourse.[10] This discourse is now underpinned by scientific arguments about public health, providing the green shoots that drove the legitimisation of environmental law. As such it may be an ideal time to revisit animal law using an empirical lens. The aim of this article is not to answer comprehensively any of the complex questions raised but rather to open a space for intellectual debate and to stimulate interest in the area in Ireland. The article will commence with a discussion on some of the core areas of the human–animal relationship and why it is an important area to consider. The paper will then look at the diverging schools of thought that have emerged, namely the animal welfare and animal rights field, and how these debates align with law and more particularly animal law. Finally, the paper will move on to explore how a more therapeutic approach to law and legal frameworks may assist with progression in the animal law field, particularly if we wish to move beyond solely exploring this area from a human-centred approach as has occurred within the environmental law space. The Human Animal Relationship Humans and animals have had, and indeed continue to have, a long and complex relationship. This relationship has largely been characterised by various forms of interaction primarily underpinned by exploitation, with economic need and resource generation being driving factors.[11] This relationship has changed over time and varies across jurisdictions. Moreover, it takes multiple and varied forms—food, medicinal, companionship, and collectables. As outlined above, the relationship often has an economic aspect to its existence—people making a living through farming, by selling animal body parts for medicinal purposes, people supporting their family’s survival through poaching for food, and people making vast profits from trafficking rare animals, to name but a few.[12] The rise in interest in the area of human–animal studies, particularly in the US,[13] has led to increased questioning of this complex relationship and the presuppositions surrounding its framing.[14] Moreover, the arrival of the COVID-19 pandemic has magnified such questions.[15] The likes of intensive farming in the West and cramped conditions at animal/meat markets in the East have been associated with zoonotic diseases, whereby infectious diseases such as swine flu and COVID-19 have the potential to emerge and mutate, thereby infecting humans.[16] This has reframed the human–animal relationship, moving it from a largely private and personal issue to a public health and societal issue. Interestingly, much emphasis has been placed on the East’s practice of wet markets being the source of such problems.[17] However, intensive farming in the West, which is largely hidden behind closed doors, is not as emphasised as the wet market traditions, and yet research suggests that this form of farming is potentially equally as harmful to public health and the environment, despite the higher levels of biosecurity adopted.[18] The human–animal relationship also impacts the climate and biodiversity. For example, reports suggest that livestock produce 14.5% of the total anthropogenic GHG emissions globally and clearing pastures for cattle ranching has been attributed with being one of the leading causes of deforestation.[19] A problem identifiable in the literature is how to utilise laws and regulations in this complex space in which cultural sensitivities, cultural diversity, sustainability issues, and economic norms interact.[20] Animal Law: A Fractured and Stagnant Area Those working in the animal law field have traditionally been divided along ideological lines. One school of thought views the animal law field through a pure animal rights lens, in that animals should have intrinsic rights regardless of human activity; the other school of thought views animal law from an animal welfare perspective in that animals’ welfare is important but only insofar as it aligns with human activity. The abolitionist movement, aligned with the pure animal rights movement, believes that any animal welfare approach only entrenches ideas around animals being used by humans and therefore prolongs the problem. Many of those aligned with the animal welfare movement believe that, whilst the welfare approach is currently not sufficiently working to provide adequate protections for animals, it is a step along the road to achieve a better solution to the problem. Whilst there has been and indeed is a longstanding divide between the two schools of thought, there is also another body of literature that views them as more alike than different.[21] Therefore, it has been suggested that the philosophical approaches may be more similar than immediately evident, albeit that the practical solutions proposed may be different.[22] It must be recognised, however, that those in the animal rights field, particularly those who take the abolitionist perspective, perceive animal law as perpetuating the problem. This author suggests that animal law can be part of the solution and aligns more with what might be called a ‘radical welfare’ approach aimed at establishing core rights that seek out harmony with human rights through a form of therapeutic jurisprudence. We will return to this below. This position will be problematic for some working in the field and indeed my own understanding of my position may change with time, but for now this is where I can best position myself in this busy space. Animal law is a difficult area of law as it has significant ambiguities around ‘right and wrong’. For example, intensive farming is perceived as a ‘wrong’ amongst animal welfare and rights-based activists; however, it is also seen as ‘right’ by others as a result of the ability to produce cheap meat and thus provide food for large numbers of people. Adopting a Millian approach, traditionally law has followed a utilitarian and liberal pathway in terms of the former defining right and wrong and the latter defining rights within that framework. Utilitarianism adopts a philosophical position that prioritises the greatest happiness of the greatest number.[23] Liberalism on the other hand refers to individual rights that are intrinsic to justice and in this respect a rights holder can either align with or limit the utilitarian impact in certain areas of social life.[24] Hedonism, humans’ seeking of pleasure and avoidance of pain, is central to this argument. However, hedonism is a complex experience; pleasure through ignorance may not be pleasure. A liberal approach, assuming one has a right to understand pleasurable experiences, may indeed reverse a hedonistic experience. Aligning this with animal law is tricky as much animal life is hidden from humans’ everyday lives. This means that the gaining of pleasure may be done in a manner that, unknown to the pleasure seekers, would actually cause them pain if they were fully aware of the context in which they are experiencing the pleasure. Thus, in this context, the utilitarian argument may fail if people are fully informed of the circumstances under which they are experiencing their pleasure, if not aware, it may be pain disguised as pleasure. An example of this is a self-proclaimed animal lover who enjoys the pleasure of a regular shop-bought sausage sandwich on a Sunday morning after a hard week’s work. However, one must assume, with the person being an animal lover, that if they knew the living conditions of the pig and the slaughter mechanisms used to prepare the meat, they would not experience such pleasure from the sausage sandwich. There is a real dilemma here as to enjoy a non-traditional organic bought sausage, where the animals experience higher standards in living conditions, may in fact cause economic pain due to its cost and thus reduce the pleasure of eating the sausage sandwich. Adding to the complexity and contradictions that appear to often circulate in this area is the acceptance of ignorance and/or indeed the requirement of ignorance to pursue pleasure. This is where the liberal individual right to pleasure, perhaps along with the greatest number in society, dominates the right to, or indeed desire for, information that may alter the pleasure principle in such a scenario. In other words, ignorance may indeed be required and desired to experience pleasure. Thus, the human-centric and individually focused approaches of utilitarianism and liberalism, alongside willingly accepted ignorance, have the potential to entrench the problems around animal law and indeed may be intrinsic to the stagnation in the area. However, adopting a higher form of happiness that relates to happiness for and with the greater good for all, for which Mill argued, might overcome these problems. It is beyond the scope of this paper to unpick these puzzles fully, but it is important to point out the tensions in the traditional legal framework when analysing this area and to consider such dilemmas when thinking about rules and laws in this space. These types of problems in relation to animal laws are not new. In the eighteenth century, when Jeremy Bentham was writing, the question of the position of animals within the world in terms of rights was an ongoing debate.[25] Bentham, a utilitarian, argued that animals should not be made suffer unnecessarily but their suffering was acceptable if it meant the betterment of man.[26] However, he did suggest that: It may come one day to be recognized, that the number of the legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate…The question is not, Can they reason? nor, Can they talk? but, Can they suffer? [27] It would seem that Bentham’s arguments hold true today; most national laws, EU regulations, and international instruments rely on morals and sentience and the avoidance of unnecessary suffering as their justification.[28] For example, laws that recognise sentience either have it explicitly enshrined in the relevant law or refer to it implicitly through only applying the law to sentient beings.[29] The Treaty on the Functioning of the European Union refers to the welfare of animals in agriculture, fisheries, transport, internal market, research, technological development, and space policies, using the sentient nature of animals as justification.[30] Directive 2010/63/EU of the European Parliament and the Council on the Protection of Animals Used for Scientific Purposes has gone beyond covering vertebrate animals and is inclusive of cyclostomes and cephalopods and refer to scientific evidence of their ability to feel pain, suffering and distress as their justification.[31] Moreover, The European Convention for the Protection of Vertebrate Animals Used for Experimental and other Scientific Purposes explicitly states that man has a moral obligation to respect all animals and be cognisant of their ability to suffer. This is similarly the case for national laws. The Finnish Animal Welfare Act explicitly outlines the obligation to protect animals from distress and pain in the best possible way (section 1.1).[32] French welfare law (provisions laid down in the Penal Code and the Maritime Fishing and Penal Code) states that all sentient animals shall be placed by the owner in conditions comparable with their biological needs.[33] The German Animal Welfare Act (2006) refers to the responsibility of humans to protect the lives and wellbeing of their fellow creatures and that no one shall cause pain or suffering without good reason.[34] In India, the Prevention of Cruelty to Animals Act (1960) defines animals as any living creature other than humans and in its Preamble explicitly outlines its aim as being to prevent the infliction of unnecessary pain on animals.[35] In the 1960s, the British Farm Animal Welfare Council developed the five freedoms for animals: namely, freedom from hunger and thirst; freedom from discomfort; freedom from injury, pain, and disease; freedom to express normal behaviour; and freedom from fear and distress.[36] The World Health Organisation for Animal Health recently launched a Global Animal Welfare Strategy which includes four pillars: developments of animal welfare standards; capacity building and education; communication with governments, organisations and the public; and implementation of animal welfare standards and policies.[37] Ireland relies upon the Animal Health and Welfare Act 2013 (as amended) and takes a similar perspective in terms of the infliction of ‘unnecessary suffering’.[38] This type of terminology has been described as too ambiguous to practically enforce as any welfare concerns could be trumped by economic, business, or human health.[39] Indeed, similar arguments could be put forward in relation to the other EU and national regulations or legislation outlined above. The legal and strategic approach outlined above suggests that countries’ ideological positions are limited to a basic animal welfare debate and that this is likely as a result of adhering to long standing economic, business, and human health practices. As a result, many scholars are now arguing that a more rights-based approach, although not necessarily to the level of human rights, may be necessary at an international level.[40] This raises more questions and potential barriers, for example, should all animals get equal rights? Or do some get different rights to others? This is evident in the debate related to rights for domestic animals versus non-domestic animals—some scholars argue that the former require fewer rights than the latter, whilst others argue that such rights simply need to be different.[41] Furthermore, it asks questions about motivations for animal rights—whether animal rights are for the sake of human privilege or whether they are for a higher ethical and moral recognition of the position of animals in the world. The intersection between human rights and animal rights is also an important area to consider. When an animal has a right, can it trump a human’s right? And if so, when? For example, does a human's right to cheap meat trump an animal's right to live a more natural life? If a human has access to an alternative protein source is there a moral imperative on the human to take that option so as not to cause harm to an animal? Such changes in human consumption practices would bring about changes to supply and demand chains and thus require farmers to adapt, and this would require significant support to be put in place during a period of transition. Indeed, some changes are already underway as is evidenced in Ireland by the Department of Agriculture, Food and Marine, publication, A Roadmap Towards Climate Neutrality, where economic supports for rewilding/foresting and other environmentally friendly farming practices are recognised as key to sustainability moving forward.[42] However, the impact of such initiatives in terms of reducing agricultural area loss has been raised as a growing concern by some UK farmers.[43] Change is also evident in other jurisdictions, for example the UK is moving towards recognising animals, including decapods and cephalopods, as sentient beings, as well as banning live exports and the importation of hunting trophies. Furthermore, Spain has recently recognised animals as sentient beings in their Civil Code, animals already having sentient status in Spanish regional administrative laws and their Criminal Code. This section has raised big questions and attempting to answer them is beyond the scope of this paper. However, their consideration is important as they are intrinsic to animal law not progressing in terms of stronger welfare/rights based approaches being proposed, supported, and adopted. They point to a current tension between human consumption practices and the ability to advance in a more sustainable and rights-based manner. Therapeutic Jurisprudence: A Problem-Solving Legal Approach to Complex Socio-Legal Issues The currently polarised positions and tensions in animal law, as outlined above, are not irreconcilable. Viewing this area as a complex socio-legal area that requires nuanced strategies to develop answers highlights the need for a legal framework that will assist with unpacking these problems and formulating solutions. A correct legal framework can simplify this space and move it forward. The current legal framework, based on utilitarian liberalism, has been questioned in terms of its ability to provide the necessary framework for the animal law field. This questioning has resulted from, alongside the issues listed above, its inability to adjust to and accommodate difference.[44] As such, Kelch has argued for a change in legal policy. For example, he suggests the Feminist Care Theory be utilised to generate universal principles aimed at changing this space.[45] However, to date this has brought about little change. The author of this paper suggests that consideration be given to therapeutic jurisprudence as a means to bring about change in this area. Therapeutic jurisprudence provides a problem solving approach that is applicable to complex socio-legal issues in a manner that upholds due process and rights-based approaches, whilst also connecting to the lived experience of those involved with the law and legal relationships.[46] Therapeutic jurisprudence therefore provides the core moral principles of Feminist Care Theory, compassion, sympathy and empathy, but retains the central pillar of due process, imperative to ensuring that legal rights are upheld to a high standard. Therapeutic jurisprudence is a philosophical approach or paradigm which is often discussed in terms of law and practice being therapeutic for those they affect.[47] The overall aim of therapeutic jurisprudence is to explore the therapeutic and anti-therapeutic nature of the law and to outline more therapeutic approaches: importantly, without breaching due process and/or constitutional rights.[48] The retention of due process and constitutional rights is key to a rights-based therapeutic jurisprudence that is not overly paternalistic, autonomy-depriving and/or punitive. As such, therapeutic jurisprudence is a framework that allows the law to move beyond a rigid rule-imposing approach and move towards a model that can adapt to the complex needs of those it governs whilst retaining due process. Historically, the legal field has struggled with moving beyond the rule-based model, which is aligned with the classical school; and the rehabilitative based model, which is aligned with the positivist school. The classical school is based on two assumptions, namely, individuals make rational decisions about offending and that an appropriately designed system will result in primary and secondary deterrence. This school of thought is primarily concerned with ensuring equality before the law, proportionate, swift, and consistent responses, clarity of the law, and consistency of sanction. The positivist school, on the other hand, is based on different assumptions, namely, that individuals who offend have underlying problems and need psychosocial interventions to rehabilitate. This school of thought is primarily concerned with meeting the individual needs of the person rather than being concerned solely with the offence. Involvement with the system typically takes the form of rehabilitation rather than punishment and thus a person can be detained until such time as they are deemed rehabilitated, which can result in long and sometimes indeterminate sentences often impacting some of the most vulnerable in society.[49] The problems with applying such philosophies to the area of animal law are twofold: the classical school is rigid, lacks an ability to adapt to individual need, and fails to account for the proposition that the person may be acting in a rational manner as defined; the positivist school lacks due process, overemphasised the psychosocial, and is difficult to apply when pathology is absent. Therapeutic jurisprudence addresses these problems and provides a framework that facilitates an adaptable rule-based approach that meets the complex needs of individuals (including animals) without losing the core pillar of justice, namely due process. Such problem-solving approaches have been applied to other areas of the legal field (e.g. environmental law, youth justice, and mental health). Although the shift to a problem-solving approach in these areas was hardly a panacea, the faults identified are learnings that can be adopted into the field of animal law. Those working in the animal law space have argued for a global animal law that is culturally sensitive, constructed through a shared and common discourse, empirically based, and theoretically sound.[50] The necessity of a global approach has also been espoused by many influential international agencies such as the World Organisation for Animal Health, the United Nations Food and Agriculture Organisation’s One Health Strategy, the European Commission in its European Communities Proposal for Animal Welfare and Trade in Agriculture (2000), and the World Trade Organisation.[51] As outlined above, the proliferation of legal instruments targeted at human–animal relations to date have managed to get us to a point where certain animal welfare concepts have become the norm. However, they fail to provide a more comprehensive solution in this space. As a result, animal law has been described as experiencing a period of stagnation. Therefore, a paradigm shift in terms of how this problem is viewed and addressed is required and it is suggested that a therapeutic jurisprudential approach be considered. Progressing Animal Law Preliminary research in Ireland suggests that animal law remains a fractured area, that it relies heavily upon a traditional welfare approach, and that it lacks a firm evidence-based theoretical guiding framework. Moreover, there does not appear to be consensus about the aims and objectives of animal law and indeed this seems to be a moving feast. Exploratory findings further suggest that minimal attention is being paid to how the law, as currently constructed and applied, impacts the lives of those it governs and how human rights law and animal law can align in a complementary rather than contradictory manner. Nor has there been any significant attempt to incorporate the lived experience into the development of legal structures governing this space. This is a complex and nuanced area that requires a complex, nuanced, and thoughtful solution that goes beyond the traditional legal rules-based/rehabilitative approach. Animal law is largely underpinned by historical and cultural norms and presuppositions which have mainly gone unquestioned heretofore. This author suggests that it is time to question these historic and cultural norms with the aim of reconceptualising the legal framework and challenging long standing presuppositions in the field. It is time to explore this area through a new lens by developing an innovative and evidence-based approach to assist with the advancement of legal instruments and their application in the human–animal relations field in Ireland. Animal law needs to be reimagined in a manner that includes and values stakeholders’ needs. The siloed areas of human rights, animal welfare, animal rights, and environmental law schools of thought need to work together with a view to developing shared consensus rather than division. Animal law needs to be brought beyond the traditionally rigid liberal utilitarian approach to adopt a problem-solving framework from which it can thrive. As such, a fundamental shift in the conceptual framework currently underpinning animal law in Ireland needs to occur. This will have the impact of developing a more sustainable approach to the human, animal, and law relationship moving forward. Etain Quigley Dr Etain Quigley is a Lecturer in Law at Maynooth University, Ireland. Her research interests are in the areas of therapeutic jurisprudence, mental health, and youth justice. She has recently become interested in the area of animal law and seeks to advance the discipline further in Ireland. [1] Anne Peters, Studies in Global Animal Law (Springer Nature 2020) 183; John CV Pezzey and Michael A Toman, The Economics of Sustainability (Routledge 2017). [2] Angus Nurse, ‘Beyond the Property Debate: Animal welfare as a public good’ (2016) 19(2) Contemporary Justice Review 174. [3] Anne Peters, ‘Global Animal Law: What it is and why we need it’ (2016) 5(1) Transnational Environmental Law 9. [4] Joost Pauwelyn, Ramses A Wessel, and Jan Wouters, ‘When Structures become Shackles: Stagnation and Dynamics in International Lawmaking’ (2014) 25(3) European Journal of International Law 733. [5] Caley Otter, Siobhan O’Sullivan, and Sandy Ross, ‘Laying the foundations for an international animal protection regime’ (2012) 2(1) Journal of Animal Ethics 53; Peters (n 3); Steven White, ‘Into the Void: International Law and the Protection of Animal Welfare’ (2013) 4(4) Global Policy 391. [6] Anne Peters, ‘COVID-19 Shows the Need for a Global Animal Law’ (2020) 11(4) dA Derecho Animal: Forum of Animal Law Studies 86. [7] ibid. [8] Ceri Warnock, Environmental Courts and Tribunals: Powers, Integrity and the Search for Legitimacy (Hart Publishing 2020). [9] ibid. [10] Dimitris Potoglou et al, ‘To what extent do people value sustainable-resourced materials? A choice experiment with cars and mobile phones across six countries’ (2020) 246 Journal of Cleaner Production 118957. [11] Steven McMullen, Animals and the Economy (Palgrave Macmillan 2016). [12] ibid. [13] Simon Brooman, ‘A Practical Approach to Animal Welfare Law by Noel Sweeney’ (2021) 11(1) Journal of Animal Ethics 112; Maneesha Deckha, ‘Critical Animal Studies and Animal Law’ (2011) 18 Animal Law 207. [14] Thomas G Kelch, ‘Towards Universal Principles for Global Animal Advocacy’ (2016) 5(1) Transnational Environmental Law 81; Peters (n 3); Katie Sykes, ‘Globalization and the Animal Turn: How International Trade Law Contributes to Global Norms of Animal Protection’ (2016) 5(1) Transnational Environmental Law 55. [15] Tauseef Ahmad et al, ‘COVID-19: Zoonotic aspects’ (2020) 36 Travel Medicine and Infectious Disease. [16] Robert G Webster, ‘Wet markets—a continuing source of severe acute respiratory syndrome and influenza?’ (2004) 363 The Lancet 234. [17] Mamoona Chaudhry et al, ‘Risk Factors for Avian Influenza H9 Infection of Chickens in Live Bird Retail Stalls of Lahore District, Pakistan 2009–2010’ (2018) 8 Scientific Reports 1. [18] Elisabeth G Huijskens et al, ’Evaluation of Patients with Community‐Acquired Pneumonia Caused by Zoonotic Pathogens in an Area with a High Density of Animal Farms’ (2015) 63(2) Zoonoses and Public Health 160. [19] Pierre J Gerber et al, ‘Tackling Climate Change through Livestock: A Global Assessment of Emissions and Mitigation Opportunities’ (Food and Agriculture Organization of the United Nations 2013); Martha Bonilla-Moheno and T Mitchell Aide, ‘Beyond deforestation: Land cover transitions in Mexico’ (2020) 178 Agricultural Systems 102734. [20] Peters (n 3); Peters (n 6). [21] Liam O’Driscoll, ‘Animal Law: Introduction, Discourse and the Irish Approach’ (Trinity College Law Review Online) accessed 1 June 2022. [22] Peter Sankoff, ‘The Animal Rights Debate and the Expansion of Public Discourse: Is it Possible for the Law Protecting Animals to Simultaneously Fail and Succeed?’ (2012) 18 Animal Law Review 281. [23] Alan Ryan (ed), John Stuart Mill and Jeremy Bentham: Utilitarianism and Other Essays (Penguin 2004). [24] Jonathan Riley, ‘Utilitarian Liberalism: Between Gray and Mill’ in John Horton and Glen Newey (eds), The Political Theory of John Gray (Routledge 2007). [25] Johannes Kniess, ‘Bentham on animal welfare’ (2018) 27(3) British Journal for the History of Philosophy 556. [26] ibid. [27] JH Burns and HLA Hart (eds), The Collected Works of Jeremy Bentham: An Introduction to the Principles of Morals and Legislation (Clarendon Press 1996) chapter 17, footnote b. [28] Charlotte E Blattner, ‘The recognition of animal sentience by the law’ (2019) 9(2) Journal of Animal Ethics 121. [29] ibid. [30] Treaty on the Functioning of the European Union (Lisbon Treaty) art 13. [31] Council Directive 2010/63/EU of 22 September 2010 [2010] OJ L276/33. [32] Animal Welfare Act 247/1996, amendments up to 1430/2006 included. [33] Loi nº 97-1051 du 18 novembre 1997 d’orientation sur la pêche maritime et sur les cultures marines. [34] Tierschutzgesetz 2006 BGBl I s 1206, 1313 accessed 1 June 2022. [35] Prevention of Cruelty to Animals Act 1960. [36] British Farm Animal Welfare Council, ‘Five Freedoms’ accessed 1 June 2022. [37] OIE Global Animal Welfare Strategy (May 2017) accessed 1 June 2022. [38] Animal Health and Welfare Act 2013 accessed 1 June 2022. [39] O’Driscoll (n 21). [40] Sykes (n 14). [41] Deckha (n 13). [42] Department of Agriculture, Food and the Marine , ‘Climate Change, Bioenergy & Biodiversity’ (2021) accessed 1 June 2022. [43] Jonathan Riley, ‘How farmers can reverse food self-sufficiency decline’ (Farmers Weekly, 18 November 2021) accessed 1 June 2022. [44] One must only look at the gay rights movement which centred around highlighting the sameness of gay people to non-gay people, thus they deserved rights. An animal rights argument cannot use the liberalism cornerstone of the law to uphold its argument, in fact it counters the argument. Deckha (n 13). [45] Kelch (n 14). [46] Etain Quigley and Blanaid Gavin, ‘ADHD and the Irish Criminal Justice System: The Question of Inertia’ (2018) 15 Irish Probation Journal 84. [47] David B Wexler and Bruce J Winick, Essays in therapeutic jurisprudence (Carolina Academic Press 1991). [48] David B Wexler, ‘Mental health law and the seeds of therapeutic jurisprudence’ in Thomas Grisso and Stanley L Brodsky (eds), The Roots of Modern Psychology and Law: A Narrative History (OUP 2018). [49] An example of this is Indeterminate Sentences for Public Protection in England, abolished in 2012. [50] Peters (n 3). [51] World Trade Organization, ‘European Communities Proposal: Animal Welfare and Trade in Agriculture’ G/AG/NG/W/19 (28 June 2000) accessed 1 June 2022.

Navigating the Challenges and Role of NFTs in Artists’ Reclamation of Control over their Publicity Rights I see NFTs as a way to innovate, empower others and push the boundaries of how artists interact with their fans. I see NFTs…as the future of the creator economy...NFTs are democratising art - Paris Hilton[1] Introduction This year marks the 25th anniversary of Jay-Z’s debut album, Reasonable Doubt.[2] The 1996 album jump started the Brooklyn-born rapper’s career from a fledgling artist to a business mogul, who became the first to be declared a hip-hop billionaire by Forbes magazine.[3] Hailed by fans as his ‘rawest and most vulnerable work’, Jay-Z’s first album recently spotlighted novel legal challenges with regard to ownership and regulation of the emerging asset class of non-fungible tokens (NFTs).[4] Since 1994, when Jay-Z was first introduced to Damon ‘Dame’ Dash, a young music executive from Harlem, the now-estranged pair went from selling CDs out of the trunk of Jay-Z’s car to co-founding Roc-A-Fella Records, Inc (‘RAF, Inc.’).[5] However, twenty-seven years after their first encounter, they now find themselves embroiled in a lawsuit centred on Dash’s alleged attempt to auction off the copyright for Reasonable Doubt as an NFT.[6] The suit is replete with implications for current and prospective NFT market participants, especially for those in the arts and entertainment industry, ranging from artists and promoters to developers. While NFTs present challenges due to the absence of guidelines, they may, with the development of certain legal and regulatory contours, herald the beginning of a new normal that would allow artists to better control and monetise their work. Against this backdrop, this article explores the principal legal issues that arise in the NFT space, specifically those related to the arts and entertainment industry. First, this article provides an overview of NFTs, including examples that illustrate how artists use them. Second, it examines the ongoing Roc-A-Fella Records, Inc. V. Dash lawsuit[7] and its practical implications. Third, this article argues that despite the associated challenges, if utilised properly NFTs may serve as a medium through which artists and public figures may relinquish control over the usage of their name, image, and likeness. A Brief Overview of NFTs A Non-fungible token (NFT) is a digital unit of value stored on a digital ledger where each unit represents a unique digital item ranging from artwork, collectibles, to even tokenised versions of real-world assets such as real estate.[8] One of the primary attributes of NFTs that distinguishes them from other cryptocurrencies like Bitcoins is their uniqueness.[9] NFTs are unique because no two NFTs are interchangeable with one another; each NFT containing unalterable, permanent metadata describing the asset that it represents while certifying its authenticity.[10] The uniqueness of NFTs may provide artists and entertainers with a vehicle to not only enhance fan interaction, but also build highly engaged communities. Indeed, minting and issuing NFTs allow artists to provide their fans with unique experiences, engaging with them in novel ways in the digital age. By reverse token, NFTs democratise public access to art and entertainment by allowing them to participate without having exclusive invite-only tickets or retaining the services of an art consultant for a hefty fee. For instance, in early 2021, Kings of Leon, the four-time Grammy winning American rock band, released their new album, When You See Yourself as NFTs, becoming the first band to release an album as an NFT.[11] Each NFT was unique in that token holders received a limited-edition ‘Golden Eye’ vinyl and exclusive artwork, along with tickets to four front-row seats to a show of each Kings of Leon tour for life.[12] Through the NFT sales, Kings of Leon reportedly raised $2 million, where over $500,000 was donated to a fund through which musicians have been supporting the industry throughout the COVID-19 pandemic.[13] NFTs are also characterised by their indivisibility, unlike other types of cryptocurrencies.[14] Under smart contracts implementing ERC-721, the current industry standard for minting NFTs, certain terms in executing functions via NFTs such as assignment of ownership and management of transferability are defined in a network, as in a regular contract.[15] An NFT holder’s rights to the work depend on the terms embedded in the NFT through the smart contract, and these terms are automatically enforced when the programmed conditions are met.[16] For instance, NFT royalties may be automatically paid out to the original creator once the coded terms of the smart contract are fulfilled upon a secondary sale transaction.[17] Accordingly, if an NFT contract is designed to trigger such an automated resale royalty payment mechanism, the artist would retain the right to future resale royalties and more control over his work. This is best illustrated through the digital artist Beeple’s sales of Everydays, a collage of images that Beeple created and shared online every day since 2007. Everydays was sold for a record-breaking price of $69.3 million at Christie’s, rendering the preeminent auction house the first amongst its counterparts to offer a purely digital work with a unique NFT.[18] Notably, the artwork is known as the most expensive NFT to date.[19] Due to an automatic 10% resale royalty executed through an NFT platform called Nifty Gateway, Beeple reportedly gained more through the resale of his artwork compared to the price he received from the original sale.[20] Hence, creators that mint NFTs may benefit from implementing a custom creator share percentage for each subsequent resale to receive royalties, so long as they ensure that their work is resold within the platform.[21] Another important attribute is its interoperability, which allows NFTs to be traded and purchased in different distributed ledger technologies with relative ease.[22] The interoperability of NFTs between different platform chains allows the original creator of the digitised item to receive a steady source of income each time the NFT is sold in the secondary market, without an agent or distributor who would charge commission fees.[23] Meanwhile, the value of NFTs corresponds to fluctuations in market supply and demand because their value lies not in the intrinsic nature of the token itself, but rather in the value assigned by those who deem it valuable.[24] Indeed, the prices of NFTs vary widely. To illustrate, CryptoPunks—the 24x24 pixel, 8-bit-style avatars—first created by software developers in 2017, were valued at a mere $1-$34 each when they were initially released.[25] However, their values have risen considerably over the years; a CryptoPunk owner is reported to have been offered $9.5 million for his CryptoPunk.[26] This reflects a positive correlation between the value of NFTs and their increased public perception and popularity.[27] Furthermore, appreciation of CryptoPunks’ value proves not only the prestigious status that accompanies the ownership of rare NFTs, but also NFTs’ potential to become lucrative investment opportunities.[28] Roc-A-Fella Records v. Dash: A Case Study of the Legal Challenges Surrounding NFTs The case study of Roc-A-Fella Records v. Dash shows that there are unresolved problems in the nascent terrain of NFTs. On June 18, 2021, RAF, Inc. filed a lawsuit against Damon Dash in the U.S. District Court of the Southern District of New York.[29] RAF, Inc. sought to enjoin the latter from selling any interest in Reasonable Doubt and requested that the court enter a judgement declaring, amongst others, that (i) RAF, Inc. owns all the rights to Reasonable Doubt, including its copyright; and that (ii) Dash must transfer to RAF, Inc., any NFT in his possession, custody, or control reflecting rights to Reasonable Doubt.[30] The complaint alleged that Dash, an owner of a 1/3 equity interest in RAF, Inc. along with Jay-Z and Kareem Burke, attempted to steal Reasonable Doubt, a company asset, mint it as an NFT, and auction his purported interest in the copyright on the album.[31] According to RAF, Inc., however, Dash as a minority shareholder of the record label did not actually hold any individual ownership interest in the album.[32] This is because the copyright, and all rights, title, and interests to and in Reasonable Doubt—including the right to sell, reproduce, distribute, advertise, and exploit the album without limitation—all belong to RAF, Inc.[33] Stated simply in the words of RAF, Inc.’s attorneys, ‘Dash can’t sell what he doesn’t own’.[34] Despite his non-existent property interest in the album, Dash is alleged to have knowingly and intentionally breached his fiduciary duty and duty of loyalty by leveraging his position as a shareholder to entice bidders and proceed with the sales of the corporation’s asset.[35] In support of its argument, RAF, Inc. quoted language from the auction announcement on an NFT platform called SuperFarm containing representations that Dash is auctioning off ‘[his] ownership of the copyright to Jay-Z’s first album Reasonable Doubt’.[36] The announcement boldly stated that ‘the newly minted NFT will prove ownership of the album’s copyright, transferring the rights to all future revenue generated by the album from Damon Dash to the auction winner’.[37] Moreover, it elaborated that ‘thanks to the magic of the…blockchain technology…[the auction] will set a precedent for how artistically created value and ownership can be proven, transferred, and monetised seamlessly through a public blockchain’.[38] According to RAF, Inc., Dash had not only stolen the copyright to Reasonable Doubt by minting it as an NFT and offering it for sale, but also refused to stop his actions despite warnings from RAF, Inc.[39] Rather, he proceeded to search for another venue to consummate the transaction after SuperFarm decided to cancel the auction upon RAF, Inc.’s request.[40] On June 21, 2021, three days after filing the complaint, RAF, Inc. argued for and obtained a temporary restraining order barring Dash from minting and issuing Reasonable Doubt as an NFT.[41] In response, Dash filed a Memorandum in Opposition of RAF, Inc.’s Order to Show Cause, in which he refuted any claims that he attempted ‘to auction off’ or ‘otherwise sell off’ the Reasonable Doubt copyright.[42] Dash contended that RAF, Inc. erroneously relied on SuperFarm’s internal memo in claiming that he represented to SuperFarm that he owned 100% of the copyright, or that he wanted to mint an NFT based on the copyright. Further, he claimed ‘nothing was ever minted!’[43] and that he was attempting to sell his 1/3 interest in RAF, Inc. as an NFT that he later planned to create, as opposed to a specific copyright interest in the album.[44] Thus, Dash claimed there was no basis for the court to grant a preliminary injunction, as he was merely exercising his right to freely transfer his lawfully owned 1/3 interest in RAF, Inc.[45] Thereafter, Dash successfully convinced RAF, Inc. and Southern District of New York Judge John Cronan to limit the preliminary injunction to the sale of Reasonable Doubt.[46] Specifically, the parties agreed to include explicit language in the court order not to prevent Dash from disposing of his 1/3 ownership interest in RAF, Inc. in any way to the extent compliant with applicable laws.[47] Meanwhile, both parties have engaged in their own NFT transactions outside of the suit. Dash began an auction for his share of RAF, Inc., with a starting bid of $10 million, in which the winner would receive a commemorative NFT representing a certificate of ownership.[48] Likewise, Jay-Z proceeded to sell his own NFT that celebrates the 25th anniversary of Reasonable Doubt through Sotheby’s for the price of $138,600.[49] Legal Implications of the Roc-A-Fella Records, Inc. v. Dash Case While the case is ongoing, the high-profile NFT case involving the industry’s moguls brings to the forefront a myriad of issues that courts have only recently begun to grapple with. First, the above case sheds light on the risks involved in minting and selling an NFT based on an underlying work over which its creator, promoter, or seller does not own the copyright. The proprietary issues presented by the process of minting NFTs is two-fold. Creators should be alerted to the fact that only the owner of the copyright (or one operating with the copyright owner’s permission to do so) in the underlying work may engage in the act of minting an NFT.[50] Otherwise, minting the NFT risks a copyright infringement, and potential, additional infringements arising from its promotion and sale.[51] Indeed, RAF, Inc. based its argument on this very issue, claiming that Dash was not entitled to mint and sell the Reasonable Doubt NFT because it was RAF, Inc., not Dash, that owned the album and its underlying proprietary rights. In fact, the Dash case is not the first precedent in this regard. In April 2021, an NFT of a Jean-Michel Basquiat drawing was withdrawn from a planned auction on the OpenSea platform after the late artist’s estate intervened, confirming that no license or rights were conveyed to the seller, and that the estate owned the copyright in the artwork.[52] Although it did not lead to litigation because the NFT was subsequently removed from sale, the Basquiat incident reiterates the need for clear guidance on proprietary rights associated with NFTs and for the implementation of best practices in this regard when NFT transactions are concerned. Likewise, purchasers should conduct reasonable due diligence before purchasing an NFT so as to preclude incurring liability and legal risks.[53] The following is a non-exhaustive list of factors that purchasers may consider prior to an NFT acquisition: whether the artist is indeed the original author of the work at issue; whether the NFT platform through which the purchase will be made, provides any IP warranties; and the scope of license for an NFT holder.[54] Another ancillary issue in relation to this is a common misconception harboured by many purchasers that they are entitled to intellectual property rights to the underlying work upon acquiring an NFT. However, this is not necessarily true because the rights governing the use and resale of an NFT that are conferred to a purchaser depends on the smart contract associated with each NFT.[55] Accordingly, purchasers should be advised to scrutinise the specific terms governing the smart contracts contained within each token to determine whether certain intellectual property rights (e.g. copyright) are transferred upon its sale.[56] Secondly, the RAF, Inc. case raises questions about the regulation of the offers and sales of NFTs under the U.S. federal securities law framework. By arguing instead that he intended to sell 1/3 of his shares of RAF, Inc. in the form of an NFT as opposed to the copyright to Reasonable Doubt, Dash risks subjecting himself to the U.S. securities laws. That is, Dash’s claim gives rise to whether an NFT would constitute an ‘investment contract’ and thus, a ‘security’ subject to regulation by the U.S. Securities and Exchange Commission (‘SEC’).[57] Whether an instrument constitutes a security is determined under the Supreme Court’s Howey test.[58] Howey involves a four-part test under which all of the following four factors must be present for an instrument to constitute a security: (1) an investment of money (2) in a common enterprise (3) with a reasonable expectation of profits (4) to be derived solely from the efforts of others.[59] Moreover, the Howey Court stated that the foregoing test embodies a flexible principle where form would be disregarded for substance while placing emphasis on economic reality.[60] In other words, it is ‘immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical assets employed in the enterprise’.[61] This means that depending on the facts and circumstances, any instrument may be deemed a security for purposes of the Howey test. If Dash’s sale of his equity interest as an NFT falls within the purview of the federal securities law, he would be subject to the registration requirements of the Securities Act of 1933[62] and the disclosure requirements of the Securities Exchange Act of 1934,[63]the non-compliance of which will constitute an unregistered sale of securities. There has been increasing public demand for the SEC to offer specific guidance regarding this matter. Most notably, in April 2021, a registered broker-dealer sent a petition to the SEC requesting the publication of a concept release surrounding the regulation of NFTs.[64] However, the SEC has yet to issue any guidance on NFTs. Nevertheless, creators and issuers of NFTs should be aware of the flurry of lawsuits that give rise to the question of whether such NFTs constitute a security and thus trigger the application of the SEC’s general analytical framework for the broader issue of digital assets to NFTs. In the 2019 ‘Framework for ‘Investment Contract’ Analysis of Digital Assets’ (‘Framework’) published by the SEC’s Strategic Hub for Innovation and Financial Technology, the SEC explicitly included language cautioning potential issuers: ‘If you are considering…engaging in the offer, sale, or distribution of a digital asset, you need to consider whether federal securities laws apply’.[65] The Framework echoes the language from the Supreme Court’s Howey test. It urges entities and individuals engaged in the offers and sales of digital assets to examine the relevant transactions in determining the applicability of the federal securities laws because the applicability of Howey to digital assets is a fact-specific inquiry.[66] The applicability of the Framework recently became the centre of a class action suit filed in the Supreme Court of New York (later removed to the Southern District of New York) in May, 2021.[67] There, purchasers of NFTs depicting video clips of highlights from NBA basketball games alleged that the NFTs promoted, offered, and sold by Dapper Labs, Inc., a Canada-based blockchain-focused technology company, were unregistered securities under the Framework.[68] While the suit is still pending, the case serves as a warning to industry professionals, the trajectory of which should be closely monitored. Moreover, earlier this year, SEC commissioner Heather Peirce—a pro-crypto member of the SEC also dubbed as ‘crypto mom’—specifically warned against selling fractionalised NFTs.[69] Fractionalised NFTs refer to NFTs that can be split into smaller pieces and sold to multiple purchasers for partial ownership interest, risking the likelihood of being deemed as securities.[70] Dash’s proposed offering of his equity interest in RAF, Inc. as NFTs may raise red flags with financial regulators. This is because such an offering would involve a large number of purchasers to invest sums of money to gain the NFT, with the expectation of profits from a fractional ownership of a highly valuable record company. Furthermore, depending on the promotional activities and the structure of the transaction, the purchasers’ profits may be deemed to derive from the entrepreneurial efforts of Dash or a third-party NFT platform. Thus, issuers and developers of digital assets should remain alert to future developments in this regard. That way, such issuers and developers may preclude any potential disputes and penalties resulting from their failure to exercise care in offering and selling these innovative assets, which may unintentionally be characterised as investment products. NFTs as a Potential Medium for Artists and Public Figures in Regaining Authority over their Publicity Rights Although NFTs pose certain challenges, the technology may—if properly and ethically utilised—be channelled to inspire and empower creators and entertainers. As a novel response to the long-standing problems in the digital terrain arising from the easy dissemination and exploitation of digital images by third parties without consent, public figures are now embracing NFTs as a medium of regaining authority over the usage of their name, image, and likeness. NFTs not only allow them to reclaim control over their appropriated digital identities, but also allow them to receive rightful compensation for its usage and distribution. The exploitation of name, image, and likeness and lack of control over the commercial use of identity is especially prevalent amongst celebrities, owing to the fact that celebrities voluntarily make themselves public figures.[71] There is currently a relative dearth of case law regarding the commercial exploitation of publicity rights in the US, rendering disputes surrounding publicity rights unpredictable. Moreover, there is a lack of clarity regarding the current state of law due to varied interpretations and statutes on publicity rights because there are no federal statutes recognising the right of publicity, while state laws lack uniformity as statutes differ across jurisdictions.[72] The economic and emotional ramifications arising from the unauthorised use of name, image, and likeness were recently brought to the forefront by American model and actress Emily Ratajkowski. In an effort to reclaim her image wrested from her for the profit of another, Ratajkowski recently minted an NFT named ‘Buying Myself Back: A Model for Redistribution’ that was auctioned at Christie’s for $175,000.[73] Upon discovering that a photo she had publicly posted on Instagram had been printed on a large canvas and sold as part of a collection released by artist Richard Prince, Ratajkowski decided to mint an NFT consisting of a photo of herself posing in front of Prince’s artwork.[74] In vocalising her decision to do so, she pointed out the ironical loss of commercial control over her image as a public figure: ‘as somebody who has built a career off of sharing my image, so many times—even though that’s my livelihood—it’s taken from me and then somebody else profits off of it’.[75] However, through her recent NFT sale, she not only regained partial possession of her own image, but also revealed she would receive ‘an undisclosed cut’ of the profits of each resale.[76] Commenting on the potential that NFTs carry, she expressed her hopes to set a precedent for others to ‘have ongoing authority over their image and to receive rightful compensation for its usage and distribution’.[77] Despite the benefits conferred by NFTs in repossessing digital identities in the age of social media, a fatal drawback of this budding technology is the risk of counterfeiting. If NFTs are minted with false information or the core code underlying the NFT is stolen, original creators of the NFTs may incur difficulties in tracing or exercising effective control over unauthentic or identical products.[78] Likewise, purchasers may be misled as to the authenticity or value of their tokens.[79] Indeed, a counterfeit NFT of the renowned British graffiti artist, Banksy, was recently sold for $900,000 on OpenSea (the world’s largest NFT platform), reigniting concerns over counterfeit NFTs.[80] Counterfeiting issues are exacerbated by the fact that many blockchain platforms currently allow virtually anyone to mint their own NFTs. It remains to be seen whether such platforms will impose internal control systems to mitigate such risks and whether they will be subject to external regulations with the evolving use of NFTs. Conclusion The NFT market has seen a stunning growth trajectory, surging to a record-high of $10.7 billion in sales volume in the third quarter of 2021.[81] The numbers mark an eightfold increase from $1.3 billion in the previous quarter.[82] Such an explosive growth was catalysed in part by the COVID-19 pandemic.[83] The pandemic led to shifts in business models such as remote working and digitalisation of work products, as well as an unprecedented increase in online spending as a substitute for traditional off-line consumption.[84] In line with such developments, creators and artists have also tapped into the NFT space to use the technology to their benefit. Some industry professionals and commentators have dubbed the current state as ‘a golden opportunity…for digital entertainers’.[85] Indeed, NFTs may be a boon to many creators and artists, restoring autonomy by means of exercising greater control of distribution and resale royalties, provided that the smart contracts stipulate the exact terms of resale mechanisms, and such resales are made within the same marketplace as discussed above. However, this golden age is not without its shadows. Indeed, in the words of Gary DeWaal, a former trial lawyer with the U.S. Commodity Futures Trading Commission, ‘this whole industry…suffers from a paucity of clear regulation, and as a result folks are sort of left on their own to figure it out the best they can’.[86] As such, due to an absence of clear regulatory guidance, pending cases should be closely monitored because they may serve as meaningful guideposts in providing regulatory clarity regarding NFT regulation. Meanwhile, to preclude significant adverse legal consequences and regulatory risks, market participants should conduct due diligence prior to any issuance or transaction involving an NFT. Furthermore, the rights and terms of the transaction in the underlying smart contract should be clearly drafted so acquirers of NFTs may fully avail themselves of its protections and benefits by limiting the grant of proprietary rights and stipulating terms for automated royalty payments, amongst others. Bo Hyun Kim Bo Hyun Kim is a third year student at Handong International Law School in South Korea where she is studying US and international law. She has published articles on emerging technologies and, most recently, contributed a chapter on NFTs and the Metaverse in a legal handbook on e-sports law and practice (pending publication). [1] Paris Hilton, ‘I’m Excited About NFTs—You Should Be Too’ (Paris Hilton, 8 April 2021) accessed 25 October 2021. [2] Sotheby’s, ‘Heir to the Throne: An NFT in Celebration of JAY-Z’s Reasonable Doubt 25th Anniversary by Derrick Adams’ (Sotheby’s, 2 July 2021) accessed 25 October 2021. [3] Zack O’Malley Greenburg, ‘Artist, Icon, Billionaire: How Jay-Z Created His $1 Billion Fortune’ (Forbes, 3 June 2010) accessed 25 October 2021. [4] Chris Richardson, ‘Jay-Z’, 100 Entertainers Who Changed America: An Encyclopaedia of Pop Culture Luminaries (2013) 289. [5] Asondra Hunter, ‘Rockin’ On A Roc-A Fella’ (Yahoo Music, 5 January 1999) accessed 25 October 2021. [6] A.D. Amorosi, ‘In Lawsuit Over Jay-Z NFT Auction, Damon Dash and Roc-A-Fella Dispute What’s at Stake, Beyond a ‘Reasonable Doubt’ (Variety, 21 June 2021) accessed 25 October 2021. [7] Complaint, Roc-A-Fella Records, Inc. v. Damon Dash (Southern District of New York 2021) (No. 1:21-cv-5411) . [8] Nir Kshetri, Blockchain and Supply Chain Management (Elsevier 2021) 23. [9] Ramakrishnan Raman and Benson Edwin Raj, Enabling Blockchain Technology for Secure Networking and Communications (Adel Ben Manouer and Lamia Chaari Fourati eds, IGI Global 2021) 92. [10] ibid. [11] Samantha Hissong, ‘Kings of Leon Will Be the First Band to Release an Album as an NFT’ (Rolling Stone, 3 March 2021) accessed 28 October 2021. [12] Sam Moore, ‘Kings Of Leon have generated $2million from NFT sales of their new album’ (NME, 12 March 2021) accessed 28 October 2021. [13] ibid. [14] Kshetri (n8) 24. [15] Ethereum, ‘Non-fungible tokens (NFT)’ (Ethereum, 6 March 2021) accessed 29 October 2021. [16] ibid. [17] Cyberscrilla, ‘NFT Royalties: What Are They and How Do They Work?’ (Cyberscrilla) accessed 30 October 2021. [18] Christie’s, ‘Beeple’s opus’ (Christie’s) accessed 30 October 2021. [19] Lynnae Williams, ‘The 5 Most Expensive NFTs⁠—And Why They Cost So Much’ (MakeUseOf, 7 September 2021) accessed 30 October 2021. [20] Grace Kay and Brittany Chang, ‘A digital artist known for his satirical work is breaking sales records, making over $10 million on 2 crypto-art piece’ (Business Insider, 5 March 2021) < https://www.businessinsider.com/art-nft-beeple-blockchain-pieces-sell-for-millions-2021-3> accessed 30 October 2021. [21] Evan Vischi, ‘The NFT resale dilemma: How can creators make sure they keep getting paid?’ (Medium, 24 April 2021) accessed 30 October 2021. [22] Raman and Raj (n 9) 93. [23] Cybrscrilla (n 18). [24] Maria L. Murphy, CPA, ‘NFTs come with big valuation challenges’ (Journal of Accountancy, 16 July 2021) accessed 30 October 21. [25] Katie Rees, ‘What Is a CryptoPunk and Why Are They Worth So Much?’ (MakeUseOf, 26 August 2021) accessed 30 October 2021. [26] MK Manoylov, ‘CryptoPunk owner declines a $9.5 million bid for his rare NFT’ (The Block, 15 October 2021) accessed 30 October 2021. [27] Williams (n 20). [28] ibid. [29] Dash (n 7). [30] ibid [11]. [31] ibid [B.22], [C.23]. [32] ibid. [33] ibid [B.21]. [34] ibid [6]. [35] ibid [34]-[36]. [36] ibid. [C.24]. [37] ibid. [38] ibid. [39] ibid [42]-[43]. [40] ibid [27]. [41] Blake Brittain, ‘Jay-Z label Roc-A-Fella blocks co-founder’s ‘Reasonable Doubt’ NFT auction’ (Reuters, 23 June 2021) accessed 2 November 2021. [42] Memorandum of Law in Opposition of Plaintiff'sx Order to Show Cause and in Support of Defendant Damon Dash’s Motion to Disqualify Plaintiff’s Counsel, Roc-A-Fella Records, Inc., v. Damon Dash (Southern District of New York 2021) (No. 1:21-cv-5411), II.B. . [43] ibid [I]. [44] ibid [II.D]- [III]. [45] ibid [I-III]. [46] Stipulation and Order, Roc-A-Fella Records, Inc., v. Damon Dash (Southern District of New York 2021) (No. 1:21-cv-5411) . [47] ibid 1. [48] Chris Dolmetsch and Bloomberg, ‘Jay-Z’s legal dispute with Damon Dash hits the NFT space’ (Fortune, 17 September 2021) accessed 5 November 2021. [49] Sotheby’s, ‘[JAY-Z]; Derrick Adams [artist]. Heir to the Throne, 2021’ (Sotheby’s, 25 June 2021) https://www.sothebys.com/en/buy/auction/2021/jay-z-x-derrick-adams-heir-to-the-throne-an-nft/heir-to-the-throne accessed 5 November 2021. [50] Harsch Khandelwal, ‘Minting, distributing and selling NFTs must involve copyright law’ (Coin Telegraph, 22 August 2021) accessed 5 November 2021. [51] ibid. [52] Anny Shaw, ‘Basquiat NFT withdrawn from auction after artist’s estate intervenes’ (The Art Newspaper, 28 April 2021) accessed 5 November 2021. [53] Georgina Adam, ‘But is it legal? The baffling world of NFT copyright and ownership issues’ (The Art Newspaper, 6 April 2021) accessed 6 November 2021. [54] ibid. [55] Margaret Taylor, ‘Digital assets: surging popularity of NFTs raises important legal questions’ (International Bar Association, 5 August 2021) accessed 6 November 2021. [56] ibid. [57] Securities and Exchange Commission v. W. J. Howey Co., 328 U.S. 293 (1946). [58] ibid. [59] ibid 301. [60] ibid 299. [61] ibid. [62] 15 U.S. Code § 77a. [63] 15 U.S. Code § 78a. [64] Vicent R Molinari, Rulemaking Regarding Non-Fungible Tokens, (Sustainable Holdings, 12 April 2021) accessed 10 November 2021. [65] U.S. Securities and Exchange Commission, Framework for ‘Investment Contract’ Analysis of Digital Assets (2019) accessed 10 November 2021. [66] Howey (n 58). [67] Complaint, Friel v. Dapper Labs, Inc., et al., (Supreme Court of the State of New York 2021) (No. 653134/2021) . [68] ibid. [69] Sophie Kiderlin, ‘The SEC’s ‘Crypto Mom’ Hester Peirce says selling fractionalized NFTs could be illegal’ (Business Insider, 26 March 2021) accessed 13 November 2021. [70] ibid. [71] Peter A Carfagna, Representing the Professional Athlete (3rd edn, West Academic Publishing 2018) 153. [72] ibid 156. [73] Christie’s, ‘Emily Ratajkowski (B. 1991)’ (Christie’s, 25 April 2021) < https://www.christies.com/en/lot/lot-6317722> accessed 15 November 2021. [74] Emily Kirkpatrick, ‘Emily Ratajkowski Is Auctioning Off an NFT Called ‘Buying Myself Back’‘ (Vanity Fair, 23 April 2021) accessed 15 November 2021. [75] ibid. [76] ibid. [77] Rachel King, ‘Emily Ratajkowski on ownership, consent, and the #FreeBritney movement’ (Fortune, 25 June 2021) accessed 17 November 2021. [78] Incopro, ‘Brand Protection & NFTs: Scams, Fakes & How to Mitigate Risks’ (Incopro) accessed 17 November 2021. [79] ibid. [80] Anny Shaw, ‘Banksy-Style NFTs have sold for $900,000–but are they the real deal and does it even matter?’ (The Art Newspaper, 22 February 2021) accessed 20 November 2021. [81] Elizabeth Howcroft, ‘NFT sales surge to $10.7 bln in Q3 as crypto asset frenzy hits new highs’ (Reuters, 5 October 2021) accessed 20 November 2021. [82] ibid. [83] Arushi Chawla, ‘NFT: Creating Buzz in Digital Ecosystem’ (Counterpoint, 16 June 2021) accessed 21 November 2021. [84] ibid. [85] Jordan Lintz, ‘The Future of NFTs: Digital Entertainment At Its Finest’ (Forbes, 19 November 2021) accessed 21 November 2021. [86] Dolmetsch and Bloomberg (n 49).

It would be pointless to list all the issues driving so much of society to take on a pessimistic view of our near future and view us as living through an age of crisis. Even if one attempts to muster the statistics to show how, despite appearances, the world is getting better overall, the very fact that everybody thinks and acts as if we are in the middle of or heading towards a catastrophe is in itself emblematic of the volatility of the current age. If the pandemic and the charged geopolitical situation triggered by Russia’s invasion of Ukraine were not enough to put to bed the idea that we were living in a utopia back in 2019, the statistics constantly cited by neoliberal optimists like Nicholas Kristof and Steven Pinker to paint the present as the pinnacle of all humanity have been thoroughly debunked as data manipulation by a host of economists and anthropologists.[1] What is less clear, however, are the reasons why we ended up in such a predicament. The centre, left, and right, while occasionally coinciding on certain particular solutions, have markedly different explanations. The left will blame either the inherent structures of an economy structured around the profit motive, American imperialism, or the neoliberal order as instituted beginning in the 70s and 80s; the right laments the breakdown of traditional social hierarchies, immigration, and the erosion of national sovereignty in favour of trans-national trade agreements and rootless global finance; and the centre chastises everyone for losing trust in the ‘rational’ technocratic structures and norms of the international world-system governing the age of American total hegemony after the collapse of the Berlin wall. Depending on whether they are more left or right-leaning, centrists will also either blame white supremacy and unrealistic demands by the ‘far left’, or the Trumpian takeover of the ‘Grand Old Party’ and the left’s excesses of political correctness and identity politics. While any one of these individual explanations indicates certain real problems that cannot be merely dismissed due to political disagreements about their causes and solutions, these explanations are not all mutually exclusive and none by themselves can fully describe our current predicament. Although, because nothing exists outside of bias or ideology, I will admit my personal sympathies to lie with the first view that our situation can be elucidated by examining the fundamentally crisis-prone nature of the capitalist mode of production, saying this by itself without context would not be productive. Capitalism as the dominant mode of production has existed for at least two centuries and a more in-depth analysis of economic and state structures would be required to show exactly why it is manifesting in the specific form of crisis we see today. Therefore, rather than examining exact policy and system-change proposals or giving a comprehensive economic analysis of why we are here today (which already produces many hot debates), this article will attempt to examine modes of thought necessary to begin thinking about what redemptive social transformation in a time of crisis would mean. For given the vast power of our technology, high levels of technical and scientific expertise, and over a century of struggles and proposals on how to move to a freer, more sustainable, and less economically precarious society, if it were merely a matter of the right technical fixes and not also of people’s consciousness, we would have already been able to construct a better world by now. The Marxist tradition has traditionally framed the relationship between the consciousness required to change the world and the concrete actions by civil society, political parties, and the state to implement these changes as the dialectic between theory and praxis. While the two are viewed as impotent when taken in isolation, Marx’s famous thesis 11 on Feuerbach, that ‘the philosophers have only interpreted the world in different ways; it is necessary to change it’, states the primacy of praxis, as theory and philosophy have no actuality outside of the way they inform action in the world.[2] When one can accurately theorise a situation with the goal of intervening in it in mind, effective strategy combined with proper subjective ‘fidelity to the Event’ (to use Alain Badiou’s terms) then brings about a new reality, meaning that we will then dispense with old ways of thought.[3] However, the ability of one’s understanding of the world to influence the course of events is dependent on the existence of a political agent or agents who contest the direction of society as a whole. If the battling of competing theories and truth-claims by different organisations and layers of society to model the world after themselves is politics, our recent history before Covid and the Russian intervention was therefore apolitical, marked by political stasis, even with dangerous figures like Trump sticking mostly to standard conservative neoliberal policies. The emergence of issues related to the global commons, such as climate change, Covid, and the war in Ukraine, have caught us completely off-guard. Despite decades of warnings from scientists about pandemics and the consistent build-up of tensions between Russia and the West since the end of the Cold War, few predicted the breakout of these two events. Some would say that this is because we live in a post-truth era, where people ignore facts when making theories about the world, thereby informing bad policy. However, we live in a post-truth era not simply because the facts promulgated by ‘experts’ are being ignored by the masses, but because no truths with the meaningful power to change and shape the world, rather than merely manage it, arise out of the facts. Following Badiou’s conception, truths are not only the correspondence of a statement to facts in the world, but primarily to the struggle of subjects to affirm them and reorganise reality around them.[4] Therefore, we live in a post-truth world not because nobody recognises facts anymore, but because there are no longer subjects and institutions to push through the repressed truths that should emerge from these facts. Likewise, as I will explore with reference to the notion of the end of history, we have been living in a post-history era not because there are no events, but because these events have not been the site for the creation of new worlds, subjects, and the implementation of repressed truths. Although it is clear that this era is coming to a close, the events that have brought about this end of the end of history (Covid, the Ukraine war, climate change, and economic instability) have merely politicised people as individuals without bringing back the classical realm of politics proper as the collective fight for the implementation of different theories of society based on differing interpretations of society. In light of us moving to a new era yet finding ourselves able to neither theorise nor act upon it, it is worth bringing up Hegel’s more pessimistic take on the relationship between theory and praxis. ‘When philosophy paints its grey in grey, a form of life has grown old, and it cannot be rejuvenated with grey and grey, but only be recognised; the owl of Minerva begins its flight only with the breaking of dusk’.[5] It has been in fashion since post-structuralist thinkers such as Gilles Deleuze to think of Hegel as a ‘totalizing’ optimist, who merely justifies the status quo by declaring it to be a fully rational system that overcomes all antagonism. However, the previous quote rather exemplifies that Hegel’s attempts to rescue and integrate the newly won idea of freedom into a philosophical system, as social conditions of the early 19th century and the rise of industrial capitalism were threatening it. Therefore, the recognition that his ability to systematise the world, ‘when philosophy paints its grey in grey’, coincides with the coming of a newly contested reality, meaning that one must therefore constantly be reconceiving the concept of freedom and the actions and institutions that implement and guarantee it. As Russia’s invasion of Ukraine (just as Covid nears the possibility of becoming endemic) definitively marks the owl of Minerva’s taking flight from the end-of-history era, this article will attempt to paint the grey and grey that defined our recent political situation and some of its effects in culture. I will rely heavily on concepts from the recently published The End of the End of History (2021),[6] as well as Anton Jäger’s notion of ‘hyper-politics’[7] to examine how we came to such a desperate position, lacking both in redemptive ideas, subjects, and organisations. Without offering a definitive solution, I will propose a concept of Messianism that can combine both the Marxian and Hegelian conceptions of the relationship between philosophy and its effects on action in the world and balances anchoring in the past and present necessity for upheaval. For Messianism is not only a desperate plea for the Other to intervene in our existence and does not merely entail waiting about idly for rescue, but is also predicated upon the active use of human intellect to theorise the positive potentials of the current age and put them into practice. Politics Ex Nihilo? To understand why everything appears to be politically contentious nowadays, yet nobody seems able to change anything and we lack competent and inspiring leaders, we should reflect on our recent history of political stasis to note the continuities and differences with the current moment. We should start with the end of the Cold War, as that marked the last period in living memory for many people where there seemed to be an apparent clash of visions for the future and ways of organising society. Francis Fukuyama proclaimed in his essay ‘The End of History?’ that the fall of the Soviet Union marked not the end of events, social conflicts, or suffering in general, but rather that there would be no more competing paradigms for world hegemony beyond minor flare-ups in areas of the global periphery.[8] The regime of politics that dominated the immediately post-Cold-War period, exemplified by Fukuyama’s triumphalist announcement of the end of real ideological struggle, is designated by Alex Hochuli, George Hoare, and Philip Cunliffe in The End of the End of History as ‘post-politics’. They define the term as ‘a form of government that tries to foreclose political contestation by emphasising consensus, “eradicating” ideology and ruling by recourse to evidence and expertise rather than interests or ideals’.[9] Despite being premised on the official coronation of liberal democracy and its associated rights and freedoms as synonymous with scientific and technocratic governance, post-politics also coincides with massive popular demobilisation, a foreclosure of the public sphere to administrators and technocrats, as well as the consignment of politics to the level of personal interest, where being interested in politics is at the same level of Marvel fandom or following football. All of this is profoundly anti-democratic, undermining the role that popular will can play in shaping collective decision making. With mass movements and struggles that put the whole of society in question consigned to the dustbin of history, post-politics emphasises the private individual as the focus of all policy making. Though stated a few years before the post-political period proper, Margaret Thatcher’s famous declaration that ‘there is no such thing [as society]; there are individual men and women and there are families’ exemplifies the individualist maxim of this era.[10] This new post-political order was declared as being no more constructed and determined by humans than the natural world, with Tony Blair proclaiming that ‘globalisation is a force of nature’, no more debatable than the fact that ‘autumn should follow summer’.[11] With neither talk of political orders nor reference to anything but the disconnected pursuit of private interests by private persons, with no responsibilities to individuals beyond their most immediate kin, even naming the system we lived in became impossible. ‘Shorn of a systemic alternative, even the notion that we lived in a system called “capitalism” receded from view’.[12] The 90s and 00s were not completely without polarising issues: we might name rising partisanship under the Clinton presidency, the threat of global terrorism after 9/11 and the accompanying attacks on civil liberties, and the wars in the Middle East as examples. All-out rejection of society at large was, however, either completely absent, channelled into silent resignation, or expressed in subcultural scenes (e.g. grunge, rave culture, or bands like Rage against the Machine), which were always caught between the tensions of their radical image and seemingly inevitable corporate co-option. However, once the 2008 crisis showed the unsustainability of ‘debt-fuelled consumption’ to ‘[assuage] anxieties’, post-politics lead to anti-politics, where antagonism and struggle against power structures were back on the table, yet lacking any program or affirmative proposals.[13] Anti-politics can be described as the response to the collapse of post-politics after the global financial crash. The most notable political actor of this period was populism, ranging from Occupy, Syriza, and Podemos to Trump, Brexit, and a renewed Front National in France. Anti-politics, rather than aiming at new forms of politicisation around an idea of a new politics, is merely a reaction against what it perceives as the professionalised and sectioned-off world of officially sanctioned politics’ corrupted existence. Rather than creating powerful organisations to challenge big capital, the anti-political stance bemoans the mismanagement of the situation by technocratic elites, who forced politicisation upon people by severing their material conditions and introducing market disorder to the post-political space, which was billed as being free of conflict. One could take the Occupy Wall Street movement as an example of a movement, which spurned all forms of institution and organisation-building that could take on the economic regime as a whole. Instead, it blamed a particular group of specific figures (the 1%), overlooking class differences amongst the 99% themselves, and praising a version of horizontalist organising based on fetishizing immediate relations between normal people outside of the sanctioned political space of the 1% and economic institutions. The failure of Occupy to effect change epitomised the era which Mark Fisher famously called ‘capitalist realism’.[14] People are mad and disgruntled and the system has been shocked to its core, yet nothing changes and people cannot even think of actually creating a new social order, choosing instead to take a simply negative stance of consternation against the troubled reality thrown upon them as if from outside. The left in anti-politics, still reeling from the post-politics era, shirked from the task of coming to power at a national level. While internationalism and a critique of the viability of nation states as the site of liberation has been and should be a cornerstone of left-wing analysis, this failure to face up to the reality that the global order is structured on national lines is a manifestation of its internalised defeat. To avoid truly contesting national politics, the authors of The End of the End of History note that the left has both made vain attempts at trans-national politics, such as the DiEM-25 movement, and retreated to local participatory structures and support in certain urban municipalities, such as Berlin, Barcelona, or Seattle’s Capitol Hill.[15] Yet this has only served to confirm the retreat of the left from the task of societal transformation to the comfortable place of revelling in minor localised successes. Taking its incipient form in the Trump era, with an anti-political figure taking power and bringing about polarisation in all parts of lie, and coming into full bloom during our hyper-online forced confinement during Covid, post-politics has now given way to what Anton Jäger has called ‘hyper-politics’: A new form of ‘politics’ is present on the football pitch, in the most popular Netflix shows, in the ways people describe themselves on their social media pages…Yet instead of a re-emergence of the politics of the twentieth century—complete with a revival of mass parties, unions, and workplace militancy—it is almost as if a step has been skipped…Today, everything is politics. And yet, despite people being intensely politicised in all of these dimensions, very few are involved in the kind of organised conflict of interests that we might once have described as politics in the classical, twentieth-century sense.[16] Now, the various divisions of the left, right, and centre’s visions of how the world should be are becoming clearer and permeate every single fact of life. Yet, despite this, nothing seems to change, with the technocratic centre reasserting its power with Covid and the election of Joe Biden. Another hallmark of our current moment is the tendency to view all political issues through the lens of ‘culture wars’ and to make various aspects of personal morality and cultural history the site of political contestation, where we are meant to prove our own individual virtue rather than organising around shared material interests. Given the constant political scrutiny and evaluation of everything from hairstyles to cartoons and comedy shows, it seems the public sphere is everywhere. There are no real civil society organisations to back it up or mobilise people to a positive goal, with religious groups, in-person cultural scenes, and unions that are not mere state or party management of interests having failed to regain their previous levels of participation and militancy. This is made even worse by Covid and social media siloing us both literally and figuratively into our personal bubbles. As Jäger notes, even with politicisation of every facet of life, political parties have not regained their previous levels of membership, which has declined by an average of 69% for the major parties of Belgium, Germany, and the Netherlands. Despite making everything political, hyper-politics has not overcome the post-political erosion of the public sphere. It has rather promoted a public sphere whose every part is merely a reflection of private desires and conflicts. One can invoke here the classic ‘ship of Theseus’ thought experiment, where a museum ship’s parts are slowly replaced over a period of time to the point that the ship’s form stays the same, but not a single physical component of the original remains, begging the question of whether the same ship remains. We could say that, through the various political forms of the end-of-history era, what used to be the public sphere has been slowly replaced with pieces of entertainment, personal spats on social media, and culture war issues. In face of this, it is questionable whether we are still even dealing with a public sphere at all. Instead, mass expression of individual virtues is passed off as politics and interaction with the public sphere takes place only through atomised engagement with social media in the interests of personal entertainment. People form their political opinions today through scrolling past various punchy headlines as they appear in their feeds and then sharing them without reading through the articles themselves. Far from being a place of meaningful public communication by people around the world to create networks that would bring about social change, the great hope during and after the Arab Spring, the use of social media to share news and engage politically has degenerated into mere feedback loops of outrage, sneering, and mockery. These serve mainly to entertain us in a feed of content, flattening the significance of the various individual articles, posts, and discussions we come across. Covid accelerated this tendency exponentially; during periods of lockdown and semi-normality, certain people accessed the world only through social media. Phenomena such as Neuralink, Metaverse, NFT’s, or Google Glass represent attempts at totalising this type of digital engagement even more completely to all facets of waking life—a dream for those in power who want to prevent our hyper-charged reality from spilling over into real social unrest. Whether or not they are practicable, the fact that our tech oligarchs are moving in such a direction is indicative of the role current virtual online spaces play in our political sphere. Cultural Defence Mechanisms against the Return of Politics Hyper-politics shows itself to be a synthesis of the globalised political stasis of post-politics, which forecloses thought about any new society, bringing along a hyper-charged environment of extreme polarisation and pseudo-politics without concrete programmatic visions for the future. All of this, in combination with the various cultural pathologies of social media, leads to some very peculiar overlaps between the public sphere, personal entertainment, cultural mores, and political contestation. Though reverence for charisma and for the politician and business figure as a ‘personality’ has existed for a long time, the active celebrification of public figures has reached new heights. This is clearly the case for figures like Trump or Zelenskyy, who built their careers in media and whose rises can be partially attributed to personal charisma and having already been a household name for years. Elon Musk, similarly, has taken advantage of the neuroses of online popular culture to build a falsified image of his ‘genius’. However, this trend is even more notable when mainstream figures are elevated to celebrity status, such as Andrew Cuomo (a classic New York machine politician) and Anthony Fauci (a career bureaucrat) for giving the air of competence in contrast to Trump, while relying on the liberal media’s pandering to their role in the culture war to shroud their own indiscretions. Even a figure like Jeremy Corbyn was memeified, with his name chanted at football stadiums and declared as the ‘absolute boy’: this despite him being personally rather uncharismatic and unable to build a robust counter-image of himself against smears by the mainstream press beyond the insipid slogan of ‘a kinder, gentler politics’. In the broad realm of what gets called ‘identity politics’—a vague term, which nonetheless refers to a large set of generally recognised phenomena—one can see how a hyper-political landscape is used to gloss over the bread and butter issues pertinent to the mostly working class members of historically marginalised groups. A classic manifestation of this, which has reached its peak since the hyper-political MeToo movement, is the ‘girl-bossification’ of vapid, corrupt, and uninspiring political leaders and corporate executives, taking shape with Sheryl Sandberg’s ‘Lean In’ and reaching its apex with Hillary Clinton’s presidential campaign. Criticism of their records, class status, or elite-friendly policy proposals, even from a feminist standpoint, could easily reduced to mere sexism. In racial politics, a similar framing of all sociological categories through hyper-mediatised exposures of individual racism has been called ‘race reductionism’ by political scientist Adolph Reed.[17] Unlike when racial struggles were more directly connected with socialist movements, trade unions, or basic material demands and universalist messages, social justice movements increasingly focus on diversifying elite positions in business, media, and politics, closing the wealth gap (which exists primarily between the upper classes of various races) as well as attempting to restrict cultural exchange to fight ‘cultural appropriation’. This coincides with the rise of what Haitian-American writer Pascal Robert calls ‘the Black Political Class’: a minority of black people in positions of power within their own community, who proclaim their own interests, i.e. as members of the middle and upper classes, as the interests of black people at large and ‘who work as a “race management” elite that metaphorically corrals Black electoral choices into a politically contained vessel’.[18] What Robert is identifying is a generalised phenomenon not specific only to African-Americans, whereby the struggle against various particular racial, religious, or gender-based oppressions is conceived not in universalistic terms, but rather through the concept of ‘representation’. This serves more to benefit those already in a privileged position to speak for their marginalised group than to remedy the less glamorous problems shared by poor and working class people of all identities. Furthermore, identity reductionism also serves as tool of the ruling class at large to portray anything that opposes either their self-serving cultural policies or elite technocratic rule at large as rooted in racism, sexism, or other forms of intolerance, the accusation of which can (justifiably) discredit someone’s political ideas. An example of this was the painting of the Canadian trucker protest against vaccine mandates and the biomedical security state as ‘conspiracy theorists’ and ‘white supremacists’ by the Liberal government to justify invoking war-time security measures: or the labelling of Bernie Sanders’ male supporters as ‘Bernie bros’ to falsely conflate critique of Hillary Clinton and support for social democracy as sexist. Parallel to the use of identity politics is the generalised tendency of modern hyper-politics to reduce every conflict to one between the forces of good and the forces of evil. This was present to a degree in George Bush’s famous identification of an ‘axis of evil’. A contemporary example of this is the coverage regarding Ukraine. Although Putin’s war of aggression bears as little justification as Bush’s invasion of Iraq, almost the entirety of the media has framed the conflict as one of pure innocent freedom-loving Europeans against ‘Eastern despotic hordes’, rather than a more nuanced examination of the different factions within both countries. Instead, we are throwing our own cultural quarrels onto a regional conflict and framing Ukraine, another impoverished post-Soviet oligarchy with moderately stronger liberal civil liberties than Russia, as the bastion of everything free and civilised about the West. In doing so, we end up infantilising Ukrainians and whitewashing their leaders, such as Zelenskyy himself, who, as honourable as his decision to stay in Kyiv was, is himself supported by oligarchs,[19] holds wealth in offshore accounts,[20] and recently banned all independent media and 11 political parties in order to stop ‘pro-Russian disinformation’, even though some on the list have condemned Russian aggression and are non-aligned socialist parties.[21] By praising Ukraine as the upholder of our free liberal democratic order, despite recognising for years our system’s decay to a point where freedom is becoming merely formal, we are being morally blackmailed to accept our own state of unfreedom and our societies’ giving up on their avowed liberal principles as the pinnacle of human freedom. We can thereby see a clear attempt to restore the post-history consensus in light of the shocks of both Covid and the Russian invasion of Ukraine. Pop culture and culture war metaphors of goodies and baddies were used in similar ways to justify curtailments of our freedoms and collective well-being during Covid lockdowns. As discussed, calls for censorship and ‘content moderation’ on tech platforms were justified by painting anybody who questioned the conclusions of officially sanctioned experts as right-wingers, conspiracy theorists, and racists. This was used to suppress important and potentially politically influential stories such as evidence for the lab-leak theory and the Hunter Biden emails. With the re-fetishisation of technocracy in the aftermath of the ‘populist decade’, in which experts started to appear discredited, management and technocracy have reasserted their cultural cachet while simultaneously feeling constantly like the embattled underdogs in a fight against the evil forces of ‘disinformation’ and ‘Russian meddling’. The authors of The End of the End of History call this phenomenon ‘Neoliberal Order Breakdown Syndrome’: This section of society assumes their views and predilections are common sense, while at the same time feeling constantly embattled…While “the liberal package” (combining elements such as cosmopolitanism, respect for expertise, individualism, an emphasis on personal ethics) is culturally hegemonic, liberals refuse to acknowledge their own hegemony. The liberal always has her back to the wall. While their views find home in the newspapers of record, they feel submerged under a tsunami of tabloid content. They flaunt their commitment to tolerance and diversity, but balk at the expression of non-liberal views from their fellow citizens.[22] This explains how the naturalisation of the ruling technocracy of the post-political period, with its emphasis on neutral expertise, can at the same time coincide with an emphasis on personal morality and individual common sense in the polarised world of hyper-politics. Many have attempted to explain the Left’s lack of resistance to, and even outright support of illiberal and technocratic policies on the basis of moral victimhood, by blaming its capture on the Professional Managerial Class (PMC). However, the socialist movement has always relied on being able to take certain sections of the radicalised middle and upper-middle-classes to bring their intellectual and professional skills to mass organising—from radicalised middle-class progressive liberals like (arguably) Marx himself, to high bourgeois and aristocratic figures who commit ‘class suicide’ like György Lukács. Nonetheless, the fact that this ‘professionalisation’ of the Left has taken place in the post-political era has largely foreclosed the events that would previously have pushed this social stratum towards a working-class politics. Instead, there remains a petty managerialism that serves only to counteract the unfulfilled promises of social mobility through education and credentialization. The political gap caused by the absence of a radical Left has been filled by the tech industry’s promise to release us from all previous scarcity and social hierarchy. We consigned the thought of the new to marketing wizards like Steve Jobs, to sell us on surrendering every aspect of our social sphere to algorithms. However, the novelty these produce is merely quantitative, regenerating infinite new variations upon a static underlying logic. By adjusting our human behaviour to the impersonal forces of the algorithm, we end up producing things with the sleek presentation of novelty, whilst being progressively deteriorating variations on the same underlying model. Marxist technologist Dwayne Monroe notes, for example, how the term ‘artificial intelligence’, designating mere pattern matching algorithms combined with vast storage, works to diminish the value and dignity of human labour and ingenuity.[23] In the cultural sphere, the tech-driven explosion of the hours of music available has similarly resulted in a drop in the consumption and production of new music; the 200 most popular new songs account for less than 5% of streaming.[24] We can see hyper-politics as a correlative to this hyper-charged, yet somehow indifferent domination of all our lives by technology. For, likewise, without a subject borne out by parties and institutions with the power of transforming the state, we cannot turn the quantitatively rising polarisation of every aspect of reality into qualitative political change. Quoting Jäger again: In many ways it seems that the lesson which has truly been learned from the ‘post-political’ era is that politics must be reintroduced into the public sphere. But without the re-emergence of mass organisation, this can only occur at a discursive level or within the prism of mediatic politics: every major event is scrutinised for its ideological character, this produces controversies which play out among increasingly clearly delineated camps on social media platforms, and are then rebounded through each side’s preferred media outlets. Through this process much is politicised, but little is achieved.[25] At the same time, as shown in Hegel’s ‘owl of Minerva’ quote, although the ability to theorise the totality of an era corresponds to its passing, it also coincides with the recognition and preservation of an original idea of freedom that has been lost and must be recovered. As much as I have criticised in this article the current state of liberal democracy, scientific management, and technology, at various points these have brought with them the promise of liberation from earlier forms of domination and rigid positions within a social caste. It is once these had wholly swept aside older forms of unfreedom that the contradiction of free labour itself showed itself in its full form and brought about the demand for it to be overcome. In order to break out of our continuing death spiral, we must relearn how to think about the unrealised potentials of the past, so as to make them actual in a radically new form. How can we think this freedom in an age of rising unfreedom? Hegel attempted to preserve the notion of liberty sparked by the French Revolution by systematising it into the Absolute in his Elements of the Philosophy of Right (1820). Theodor Adorno, in Negative Dialectics (1966), takes an inverse approach by introducing the notion of the ‘non-identity’ of any concept raised to the level of the Absolute: By immersing itself in what confronts it a priori, the concept [Begriff], and becoming cognisant of its immanently antinomic character, thought dwells on the idea of something beyond contradiction. The antagonism of thought to its heterogenous object is reproduced in thought itself as its own immanent contradiction. Reciprocal critique of universality and particularity, identifying acts that judge whether the concept does justice to what it is concerns itself with and whether particularity fulfils even its own concept, this is the medium of thinking the non-identity of concept and particularity.[26] Adorno is essentially arguing that the non-identity of any positive content with the material reality it engenders points to the possibility of moving beyond a certain contradiction. Thus, to recover lost ideas of freedom, we must—Adorno suggests—focus on the non-identity of the world as it is with the ideals and structuring principles it is built upon. This is the task of figuring out how to build the new out of the ideas and materials currently at hand. However, unlike Adorno, we must not stay forever at the level of critique by non-identity. To do so would bring about criticism that is either unable to change anything (it is hard to affirm a concept if we retain the compulsion to deconstruct everything), self-reproducing for the sake of mere theoretical activity, or easily co-optable by the status quo (like tendencies of so-called ‘post-modernism’). If we are to think about non-identity, we must not merely think of it in its empty critique as an abstract concept structuring all political theoretical engagement; this would be taking non-identity outside of its intensity and vivacity. Or, as Friedrich Nietzsche would say, this would be a taming of the concept’s real effectivity and vitality in the world, in favour of a purely theoretical exercise that degrades concrete experiences of this non-identity.[27] While not dispensing with the notions of totality or identity, using them rather as operators whose unreality still structures the immediacy of non-identity to reality, we must learn to consider the absolute totality of non-identity in order to tackle its vicissitudes in a historical era like ours. More simply put, we must learn to experience the discontinuity of the past and the future as colouring the tensions of the present situation. This process is immanent, but not exclusively a critique. To overcome both the pitfalls of a systemic justification of the world as it is (such as that undertaken by Right Hegelianism) and the deflationary practice of incessant critique, it strives for renewed self-conscious engagement with the Absolute, i.e. the whole of society as self-consciously shaping its future, at the hinge-points of history where we are faced with either total tragedy or coming redemption: Messianism. In the next section, I will suggest a conception of Messianic thought, based particularly on Walter Benjamin’s late works on history, to formulate a generic concept, universalizable throughout particular spiritual, political, and secular contexts, that can engender renewed engagement with the ideas of freedom and redemption of the past so as to break out of the hyper-charged yet languid space brought about by the end-of-history era. The Proposition of Messianism At first glance, the Messianic longing that there be sent a figure from beyond all conceivable present horizons of possibility seems to have nothing to do with politics. Politics is ultimately about the management and allocation of, and conflict over decision making power, distribution of resources, and mobilisation of labour. On the one hand, then, the notion of a redeeming force coming from outside of all currently imaginable horizons to save us from our own impotence seems to contradict the active engagement and concrete strategising required by politics. On the other hand, we have seen supposedly transformational political movements contenting themselves merely with the technical management of state political affairs. For there to be true politics, there is also the need for a Messianic idea of something outside of what is currently conceivable in state politics to be actively pushed through by partisan political subjects. The task of Messianism is to figure out how the current range of possibilities can be transformed into something that appears impossible in our current horizon. Rather than being apolitical, the experience of working towards a Messianic or even utopian future and seeking to transform the whole of society responds to the demands of all three of the contemporary regimes of politics discussed in this essay. Firstly, Messianism, in the post-political landscape of the end of history, seeks to bring about a culmination of all previous events as leading to a single point in the present. Rather than being the mere transition between fleeting moments, the present then becomes a monad containing all the congealed influence of the past and its respective potential futures in decisive suspension. This conception of the historical temporality of the present is intended to lead away from what Walter Benjamin calls the ‘empty homogenous time’ of liberal progressivism in his essay ‘On the Concept of History’.[28] This was seen clearly in the Third Way politicians of the nineties, who viewed any progress to come out of indifferent cycles of global markets managed by neutral technocrats in a system which seemed to stand outside of the twists and turns of history. While completing a sort of end of history, or rather ‘consummation’ (Vollendung) of history, Messianism differs from post-politics in that it reintroduces politics by bringing all of its conflicts to a decisive hinge point, which, by opening the opportunity for redemption at any moment, does not so much end history as rather transforming it so radically that its concept must be rethought.[29] The kingdom of God on earth brought about by the Messiah is thereby not the ultimate destination of fate, but rather marks the end of a certain period of existence, marking that ‘a form of life has grown old’ as Hegel said.[30] Secondly, political Messianism, like populist discontent, contains an antipolitical moment of rejection of the precarious conditions of the present and its institutionally sanctioned ideology. It is in this sense that Messianic thought relates to a sense of crisis and impending catastrophe, rooted in a plea to a force that can save us and let us no longer have to deal with the dreadful present. However, in rejecting the anti-political impulse to sweep away evil actors causing disorder in order to preserve a previous order, it is necessary to concretely introduce new goals and models of social organisation to avoid an impotent sense of nihilistic resentment, which can only push towards the far right. For one must always remember not to reduce political problems to being a matter of an intact social organism, ‘the people’, that is undermined by an outside group or factor of essentially different character. Rather, a Messianic view seeks out the contradictions of society in itself and considers redemption not to be the removal of a particular enemy, entity, or institution, but rather the redirection of the past that brought about the current disorder towards a new future: and hence a new past and present. Finally, the hyper-political moment we are in, with its polarisation of every aspect of politics and social life, while so far merely confused due to the inability to see positive changes, sets the preconditions for actively determining society as a whole. Whereas the incessant debates about every cultural and historical institution and the heated accusations flying on every side are tedious due to their apparent lack of resolution, this is at least an indicator that our current ways of existence socially, economically, civically, and with nature cannot continue sustainably. Hyper-politics, nonetheless, tends to amount to a frantic quibbling over the precarity of the present. It is neither an attempt to redeem the potential of the past nor yet to implement concretely different conditions for the near future. One potential positive of the tendencies for nostalgia shown by culture and art is an at least unconscious memory of the past’s lost potentials. Though nostalgia is often a conservative force when engaged in modern phantasmatic reconstructions (as it is neither possible, nor desirable, to resuscitate the past ‘as it actually was’), the focus on the absolute difference of the past to the present, as showing the possibility of social reproduction along almost unrecognisable logics, also creates the theoretical space for thought of the new and the redemption of lost futures. Messianic thought is meant to fill the conceptual gap that hyper-politics is currently stuck in, by attempting to think about the redemption of past history through the immediate possibility of a future that overcomes the extreme tension and emergency of the present point in time. This sense of ‘dialectics at a standstill’ (‘Dialektik im Stilstand’[31]) that Benjamin uses in his inversion of Marxist dialectics, which usually emphasises history’s constant movement rather than stasis, helps us to think of how the present, beyond its mere fleeting into the past, can hold all of the contradictions of the past and the potentials of the future at a point, where the subjective factor of history can play a determinate role in shaping the future. Benjamin thereby conceives the Messianic moment not as something flashing up for no reason to our help to bring about an unconditionally good world, but rather as when the whole material and causal nexus that determines our present is halted due to internal breakdown, and can be redirected towards and present the image of a new future. History deals with connections and with arbitrarily elaborated causal chains. But since history affords an idea of the fundamental citability of its object, this object must present itself, in its ultimate form, as a moment of humanity. In this moment, time must be brought to a standstill. The dialectical image is an occurrence of ball lightning that runs across the whole horizon of the past. Articulating the past historically means recognizing those elements of the past which come together in the constellation of a single moment…The dialectical image can be defined as the involuntary memory of redeemed humanity.[32] This uniquely charged moment cannot come about randomly at any time in history. Rather, it has a tragic dimension and is occasioned by desperation and potential catastrophe. The revolutions that make new forms of politics and social life do not come about as seamless transitions from one progressive age to the next in times of prosperity, but arise when the material and intellectual foundations of a state show themselves to be in crisis. To quote Benjamin: ‘Marx says that revolutions are the locomotive of world history. But perhaps it is quite otherwise. Perhaps revolutions are an attempt by the passengers on this train—namely, the human race—to activate the emergency brake’.[33] Furthermore, the scholar of Jewish mysticism Gerschom Scholem noted that every instantiation of Messianiam in the Jewish tradition entails not only a utopian dimension, but also the restoration of an ideal original condition. This restorative element likewise also contains utopian implications, because, given change in conditions, what is intended to be reinstated is actually novel and differentiates from both the present and the past. Here is Scholem, in his essay ‘Toward an Understanding of the Messianic Idea in Judaism’ (1963): The restorative forces are directed to the return and recreation of a past condition which comes to be felt as ideal. More precisely, they are directed to a condition pictured by the historical fantasy and the memory of the nation as circumstances of an ideal past. Here hope is turned backwards to the re-establishment of an original state of things and to a ‘life with the ancestors’. But there are, in addition, forces which press forward and renew; they are nourished by a vision of the future and receive utopian inspiration. They aim at a state of things which has never yet existed…the Messianic idea crystallizes only out of the two of them together.[34] What most defines the potentially tragic character of the Messianic moment is that redemption is ultimately not guaranteed. Complete destruction and death, collapse into barbarism, or even continued slow decline and increasingly whitewashed suffering, are all possible. The fact that both overcoming present despair and succumbing to it are absolutely possible is what gives Messianism a central place in intervention by people into history, because it confronts historical antagonism from a point that cannot be smoothed out and seamlessly integrated into the passage of time, shaping individuals out of this experience. It involves a use of political will which cannot be reduced through consensus or conflict mediation. The political actor who takes part in a Messianic project for the future identifies a space that is more originary than either the past individual’s material determinacy or subjective will. Theologian Franz Rosenzweig calls this the ‘metaethical’ dimension of human life,[35] along with the metaphysical and metalogical, critiquing Hegel for attempting to reconcile the individual with the social whole and history through a smoothly integrated system of contradictions.[36] The metaethical aspect of personhood rather, which both extends beyond particular contemporary norms and is always linked to a determinate place in history, comes about at moments where the political subject must act and make decisions to reorient the past and its connection to the future. In conceiving the Messianic moment as one where the incessant movement of history is taken ‘at a standstill’, one connects with the metaethical dimension of humanity, where subjects intervene to self-consciously shape the rules and structures of social life and morality. History at the moment of rupture and possible redemption or ruin therefore brings about a reflection on society’s past and current potentials as a whole, beyond the apparent chaos of the crisis-ridden situation. For Messianism entails an encounter both with the positive and progressive elements of the past, such as capitalism’s institution of free labour, liberal rights, and productive capacities, as well as the present situation of its missed potential, such as in climate change, rising inequality and poverty, and increasingly illiberal and repressive political systems. To self-consciously shape the future and implement a possible redemptive new idea of society, one therefore needs to think both the potentials of the concepts in the past and their non-identity, à la Adorno, with the present situation they have conditioned. The task is to spot the presence of the formerly redemptive ideas of the past as they appear when fleeting from the present. ‘For it is an irretrievable image of the past, which threatens to disappear with every present that does not recognise itself as meant in it’.[37] Rather than being fixated on abstract lofty ideals, the Messianic promise of freedom is likewise predicated on having an idea of unfreedom and the threat of total subjugation (by fascism, climate austerity, economic breakdown, etc.). Therefore, instead of being beholden to the hopeful promise of a better future, one must actively fight the enemies of freedom to realise a Messianic future. ‘For the Messiah does not only come as the redeemer; he comes as the conqueror of the anti-Christ’.[38] Because the idea of utopia only gains meaning when contrasted with its reflected dystopic potentials. ‘Freedom can only be grasped in determinate negation, in proportion to the concrete form of unfreedom’.[39] A Messianic political movement therefore does not conceive of utopia through ahistorical figments of reified thought, but rather as arising out of the concrete potentials of the movement of history in its present moment. The inversion of the movement of history into a politically charged Messianic moment, where both the concept of freedom and the reality of unfreedom are immanent to political action, puts our subjectivity and connection to the world, social structures, and ourselves into question at its zero-level. In opposition to pure historicism, which presents an invariant history in which human subjects are merely moving parts, the Messianic conception of material history takes this nexus of material contradictions discovered by the historian or political scientist as they matter immanently to historical subjects, who can affect society’s direction. With the confusion of events taken in their absolute singularity qua crystallisation into a single moment, one is able to ‘burst the continuum of history’.[40] This does not mean an end of history as such or the descent into pure degeneration, but rather the attempt to split the history of humanity into two parts. What Messianism introduces is a way to think about the centre between these two parts, where political agency can be expressed in the subject’s engagement. The political-messianic subject therefore comes about by crystallising both its prior historical determination and the accelerating continuum of time into the full gravity of the present moment, in order to mark an absolute break between past and future.[41] To conclude, it is worth reemphasizing the situation of political foreclosure that generates the need for its overcoming by Messianic thought and action. Recent history has shown both the flatness of the post-history era and the directionless impotence of anti-politics and hyper-politics, all premised on deemphasizing the role of collective affairs and of political order in shaping individuals’ lives and creating transformative change. Although we cannot simply choose to think ourselves out of our predicament, we must again affirm the ability of current circumstances to generate ideas of new possibilities and state that any political order, even one declared to be post-history, will inevitably generate ruptures. Where Messianism enters is in thinking about how these breaks in history occur not merely as a seamless unnoticed transitions between systems, but are based around decisive moments, which manifest concretely, beyond both immanence and transcendence, to political actors in the present. This is not simply the imposition of a ‘totalising’ political idea on top of discrete individuals. By understanding historical events as monads containing past determination, future possibility, and present subjective engagement, Messianism applies universally, allowing anyone to consider the relationship between their own actions and the external arrival of world redemption at the crossroads of history. Combining what Scholem called the ‘utopian’ with the ‘restorative’,[42] Messianism is a paradigm that allows the individual to conceive better possible futures through a double reflection on the past: both as conditioning the ways that the future must distinguish itself from the past, and recalling the lost possibilities contained in our origins. For though Messianism is ultimately future-orientated, it rests upon the necessity to think about the Origin, both to understand the causal chains determining our current predicament and conceive of absolute novelty based on our original creative essence. Rather than the unchanging continuum of the post-history era, Messianism situates the historical subject between the rooted mass of the past events and the idea of human redemption and a rupture in history. Without the notion of something external coming with to help us dig ourselves out of this tension, we are haunted by the past, rather than revering it by transforming the present. Rather than overcoming past failures by reviving their lost liberatory potentials, we pathologise them excessively in our politics. As Marx said, ‘the tradition of all dead generations weighs like a nightmare on the brains of the living’.[43] Current hyper-politics sees past ideologies infecting us parasitically, as a neurotic defence mechanism against our own powerlessness. Without prospects for political agency, the left and right take pleasure in unseriously using political tension around every facet of life as an escape from the mundanity of every-day powerlessness. The concrete Messianic thought of redemption in the future, which remained unimaginable during the era of ‘capitalist realism’, rather views in the past ‘a secret index, through which it is pointed towards redemption’.[44] This allows the past to always point to the possibility of its future redemption, and creates links between political subjects and truths across historical epochs: the Origin that constantly is renewed, transformed, and re-individuated. Nothing about any of this is ‘deterministic’ or ‘reductionist’. Any radical change in the world being pushed through by free and imperfect human subjects can fail based on a variety of unpredictable factors. The Messianic moment is an unconditioned encounter with the possibility of reconnection with the past through a utopian future, which Badiou calls the Event, the point at which the contradictions of the world crystallise and engender a new organising principle of society. This promise of a different future engendered by the Event requires a certain subjective ‘fidelity’ and a name—the Messiah—upon which its success is not guaranteed from the outset. The Messianic moment is only confirmed in retrospect, once it has already been completed and having initiated a new mode of existence requiring different forms of thought. This is why we are always ultimately in waiting for the Messiah, for whose arrival one is always working and rethinking the past. Whenever a crisis-ridden present and the potential for tragedy brings about what Scholem calls ‘the plastic hours of history’,[45] where political subjects have the leeway to establish new orders, a ‘light messianic force’[46] persists, which bears the constant task of redeeming lost conceptions of freedom and investigating the historical structure of our desperate situation to see how it can give birth to new worlds. Max Klein Max Klein graduated with a Bachelor’s Degree in French and German from the University of Cambridge in 2022. Raised in New York City and currently based in London, his interests include Marxism, structuralism, Hegelian philosophy, Jewish thought, and political economy. Additionally, he is active as a composer and jazz pianist. [1] Cf. Jason Hickel, The Divide: A Brief Guide to Global Inequality and its Solutions (William Heinemann 2017). [2] Karl Marx, ‘Thesen über Feuerbach’ in Volker Gerhardt (ed), Eine angeschlagene These (Akademie Verlag 1996) 298. Translation the author’s. [3] Cf. Alain Badiou, L'être et l'événement (Édition du Seuil 1988). [4] Cf. Alain Badiou, The Immanence of Truths (Bloomsbury 2022). [5] Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts (first published 1820, Akademie Verlag 1981) 28. Translation the author’s. [6] Philip Cunliffe, George Hoare, and Alex Hochuli, The End of the End of History: Politics in the Twenty-First Century (Zero Books 2021). [7] Anton Jäger, ‘How the World Went from Post-Politics to Hyper-Politics’ (Tribune, January 3 2022) accessed 10 June 2022. [8] Francis Fukuyama, ‘The End of History?’ (1989) 16 The National Interest 3-18. [9] Cunliffe, Hoare, and Hochuli (n 6) 4. [10] Douglas Keay, ‘AIDS, Education, and the Year 2000: An Interview with Margaret Thatcher’ (Woman’s Own, 31 October 1987) 8-10. [11] ‘Tony Blair's Conference Speech 2005’ The Guardian (London, 27 September 2005) accessed 10 June 2022. [12] Cunliffe, Hoare, and Hochuli (n 6) 5. [13] ibid 36. [14] Mark Fisher, Capitalist Realism: Is There No Alternative? (Zero Books 2010). [15] Cunliffe, Hoare, and Hochuli (n 6) 148-9. [16] Jäger (n 7). [17] Adolph Reed, ‘Socialism and the Argument against Race Reductionism’ (2020) 29(2) New Labor Forum 36–43. [18] Pascal Robert, ‘A Black Political Elite Serving Corporate Interests Is Misrepresenting Our Community’ (Newsweek, 23 November 2021) accessed 10 June 2022. [19] David Clark, ‘Will Zelenskyy Target All Ukrainian Oligarchs Equally?’ (Atlantic Council, 10 July 2021) accessed 10 June 2022. [20] Aubrey Belford, Luke Harding, and Elena Loginova, ‘Revealed: ‘anti-oligarch’ Ukrainian president’s offshore connections’ The Guardian (London, 3 October 2021) accessed 10 June 2022. [21] Grayson Quay, ‘Zelensky Nationalizes TV News and Restricts Opposition Parties’ (The Week, 20 March 2022) accessed 10 June 2022. [22] Cunliffe, Hoare, and Hochuli (n 6) 62. [23] Dwayne Monroe, ‘Attack Mannequins: AI as Propaganda’ (Computational Impacts, 19 September 2021) accessed 10 June 2022. [24] Ted Gioia, ‘Is Old Music Killing New Music?’ The Atlantic (Washington DC, 23 January 2022) accessed 10 June 2022. [25] Jäger (n 7). [26] Theodor Adorno, Negative Dialektik (first published 1966, Suhrkamp 1999) 149. Translation the author’s. [27] Cf. Friedrich Nietzsche, The Antichrist (first published 1888) in The Portable Nietzsche (Walter Kaufmann ed, Penguin Classics 2008). [28] Walter Benjamin, ‘Über den Begriff der Geschichte’ in Walter Benjamin, Gesammelte Schriften I-2 (first published 1940, Suhrkamp 1980) 704. Translation the author’s. [29] Walter Benjamin, ‘Theologisch-Politisches Fragment’ in Walter Benjamin, Illuminationen: Ausgewählte Schriften I. (first published 1921, Suhrkamp 1977) 203-4. Translation the author’s. [30] Hegel (n 5) 28. [31] Walter Benjamin, Gesammelte Schriften V (Suhrkamp 1982) 577. [32] Walter Benjamin, ‘Paralipomena to “On the Concept of History”’ in Walter Benjamin, Selected Writings Volume 4: 1938-1940 (Belknap 2006) 403. [33] ibid 402. [34] Gerschom Scholem, The Messianic Idea in Judaism and Other Essays on Jewish Spirituality (Schocken Books 1971) 3. [35] Franz Rosenzweig, Der Stern der Erlösung (first published 1921, Suhrkamp 1988) 12. [36] ibid 7-8. [37] Benjamin (n 28) 695. [38] ibid. [39] Adorno (n 26) 230. [40] Benjamin (n 28) 702. [41] ibid 702-3. [42] Scholem (n 34) 3. [43] Karl Marx, ‘Der achtzehnte Brumaire des Louis Bonaparte’ in Karl Marx / Friedrich Engels: Werke, Artikel, Entwürfe Juli 1851 bis Dezember 1852 (first published 1852, Dietz Verlag 1985) 97. Translation the author’s. [44] Benjamin (n 28) 693. [45] David Biale and Gerschom Scholem, ‘The Threat of Messianism: An Interview with Gershom Scholem’ The New York Review of Books (New York, 14 August 1980) accessed 10 June 2022. [46] Benjamin (n 28) 694.

In Lesia’s three-in-one poem A Fictional War, two voices speak in separated monologues but are also integrated and juxtaposed. The poem confronts the battle of narratives (lived, reported experience versus Russian lies) that rage alongside and form a critical part of the war and brutal violence in Ukraine. Lesia Daria is a writer, journalist, campaigner, and volunteer. She is a communications adviser at the Ukrainian Institute London, and in Surrey where she is active in her local community, she is helping Ukrainian refugees to settle into life in the UK. Previously Lesia worked as a journalist in Washington DC, Kyiv, London, and New York, and lived in Paris, Minsk, and Istanbul. She holds a BA from the University of Virginia and an MSc from the London School of Economics and Political Science.

The Role of Motive in the Definition of a ‘Terrorist Act’ under the Australian Commonwealth Criminal Code Motive is traditionally considered to be an unwelcome guest in criminal trials, a bête noire that should only appear at a sentencing. The common law draws an important distinction between mens rea and motive in criminal proceedings. The principle of mens rea, meaning ‘guilty mind’, provides that ‘criminal liability should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences, it may have’.[1] Motive refers to personal reasons, such as vengeance or financial gain, from which criminal intent may be inferred. While most offences require mens rea to be proven beyond reasonable doubt, the motive is traditionally considered irrelevant to criminal liability.[2] The inclusion of a ‘political, religious or ideological cause’[3] element in the definition of ‘a terrorist act’ in Australia has invited the concept of motive back into criminal liability. In addition to the evidential issues of proving motive beyond reasonable doubt, defining terrorism is commonly regarded as a Sisyphean task due to the political, ideological and jurisprudential questions it raises about the legitimate exercise of violence and the role of criminal law. Rather than viewing anti-terrorism laws as a vanguard in a broader trend towards the inclusion of motive in criminal liability, this article asserts that the unique nature of terrorism as strategically targeted violence necessitates a motive element. Whilst the physical elements of terrorist acts can be covered by existing criminal offences, such as murder or conspiracy, the underlying motive to influence socio-political outcomes through the use of violence adds a distinct layer of criminality. Hacker describes terrorism offences as ‘triadic’[4] because it involves not only the offender and the victim but also the general public through the targeted perpetuation of fear. Premised on the notion that the motive behind terrorism is what creates a moral distinction from other criminal offences, this article presents three central arguments. Firstly, a discrete category of terrorism offences is necessary in accordance with community expectations that political, religious and ideologically oriented violence warrants distinct classification under criminal law as an affront to the democratic process. Secondly, that terrorism offences should be fairly labelled with reference to a motive element in the definition of a ‘terrorist act’ to adequately reflect the nature and extent of an offender’s criminality, particularly when many terrorist offences are inchoate. Thirdly, the inclusion of a motive element in terrorism offences substantially broadens the scope of admissible evidence at trial and thereby heightens the importance of safeguards in criminal procedure to protect the fairness of criminal proceedings. II. The Legal Definition of ‘A Terrorist Act’ The Australian definition of ‘a terrorist act’ under Section 100.1 of the Commonwealth Criminal Code was introduced by the Security Legislation Amendment (Terrorism) Act 2002 (Cth) as part of a legislative response to the September 11 attacks. The anti-terrorism laws include a wide range of offences that can only be enlivened once the three limbs of the definition of ‘a terrorist act’ are proven beyond reasonable doubt: ‘the action is done, or the threat is made with the intention of advancing a political, religious or ideological cause’ (‘the motive element’);[5] ‘the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public’[6]; and the ‘action’ falls within subsection (2) and does not fall within subsection (3). Subsection (2) includes actions such as causing a person’s death, serious damage to property and endangering a person’s life. Subsection (3) provides that advocacy, protest, dissent or industrial action are not terrorist acts.[7] This definition blurs the legal distinction between intention and motive by focusing on the reasons why the accused engaged in the prohibited conduct (for advancing a political, religious, or ideological cause) rather than an intention to commit the act itself. Thus, the ‘motive element’ under subsection (1)(b) presents a departure from intent as the cornerstone of criminal liability[8] and ventures into the hearts and minds of the accused. III. The Role of Motive in Criminal Responsibility Criminal offences ordinarily comprise a physical element (actus reus) and subjective fault element (mens rea). The fault element is based on intention, whereby criminal liability is restricted to ‘those who, from a subjective perspective, intended, knew or at least were aware of the risk of a particular harm occurring’.[9] However, what is the difference between motive and intention? In Hyam v Director of Public Prosecutions (Cth) [1974] UKHL 2, Lord Halisham explained that ‘motive is entirely distinct from intention or purpose. It is the emotion that gives rise to an intention, and it is the latter and not the former which converts an actus reus into a criminal act’.[10] By considering the emotional and subjective reasons why someone intended to commit an offence, criminal liability becomes perilously intermixed with moral and political judgments. Norrie argues that it is the link between social conflicts and individual motives that drives the exclusion of motive from criminal responsibility.[11] For example, the mental element of larceny is the intention to steal rather than motivating factors or emotions such as hunger or poverty. The primacy of intent over motivation protects the criminal law from ‘moral infection’[12] and attributes fault to the autonomous individual rather than the broader structural and societal issues that contribute to crime. Notwithstanding this, Horder claims that a ‘privileged class’ of offences permit motive into criminal liability.[13] For example, the motive is important for offences where there is no prima facie wrong.[14] In the case of terrorism, a significant portion of terrorist offences are constituted by preparatory acts whereby the criminality of the offence is unclear without the motive. Furthermore, it is the motivation behind the intention—to advance a political, religious or ideological cause through coercion or intimidation—that captures the ‘wrongfulness’ of the offence. For example, terrorism prosecutions in Australia have included the possession of a magazine published by Al-Qaeda[15] and attempting to seek a fatwa against an army base.[16] In these cases, the criminality of possessing a magazine or seeking a religious declaration is not adequately understood until the motive behind these acts is established. There is indeed merit to the longstanding view that motive should be excluded from criminal liability to keep the offender’s political, religious, or ideological orientations outside of the courtroom and thereby reducing the risk of bias. However, in the case of terrorism, it is these very motivations that differentiate terrorism from other serious offences. As noted by former Attorney-General Phillip Ruddock, ‘it would be short signed to divorce these motivational contexts from the crimes themselves when they directly inform the gravity of the conduct’.[17] The incorporation of a motive element to advance political, religious, or ideological causes into the statutory definition of a ‘terrorist act’ ensures that the essential characteristics and criminality of terrorism is sufficiently particularised within the legislation. IV. The Moral Distinction between Terrorism and Other Offences ‘Terrorism’ is a politically and ideologically contentious term that incites extreme moral outrage and public indignation. But what makes terrorism distinct from other offences which are also considered morally wrong? Offences that are violent, indiscriminate, or otherwise evoke widespread terror will inevitably provoke media attention and emotive public response. However, on a deeper level, terrorism is an attack on the fundamental principles of a peaceful and democratic society. It was expressed by the United Nations Commission on Human Rights that ‘terrorism poses a severe challenge to democracy, civil society and the rule of law’.[18] While arguably all criminal offending may inadvertently undermine the rule of law, Ben Saul asserts that terrorism ‘should be specifically criminalised because it strikes at the constitutional framework of deliberative public institutions which make the existence of all other human rights possible’.[19] By replacing politics and dialogue with intimidation and violence, terrorism represents an affront to the Western liberal ideal of the peaceful democratic process. Ultimately, it is the public-oriented motive that most clearly reflects the core normative judgments about the wrongfulness of terrorism and distinguishes it from other offences. One of the main criticisms of the inclusion of a motive in the definition of ‘a terrorist act’ is that terrorist offences can be prohibited through existing criminal offences. Roach argues that ‘although anti-terrorism laws have been enacted on the basis that existing criminal law is inadequate, we should not lightly assume that the existing criminal law is not up to the task’.[20] Roach asserts that offences of murder, conspiracy, incitement and attempt can be applied to apprehended acts of terrorist violence and ‘from the perspective of public safety, it should not matter why someone explodes a bomb’.[21] In contrast, the Parliamentary Joint Committee on Intelligence and Security stated that ‘terrorism is qualitatively different from other types of serious crime’ because it is typically directed toward the public to create fear and promote political, religious or ideological goals.[22] This distinction between public and private motives is illustrated in the case of R v Mallah.[23] Mallah was indicted on two counts of preparation for a terrorist act and a third count of recklessly making a threat to cause serious harm to a Commonwealth public official.[24] The alleged facts were that Mallah applied for a passport which was subsequently refused by the Department of Foreign Affairs and Trade (DFAT). Following an appeal to the Administrative Appeals Tribunal, police executed a search warrant in his house and located a rifle, ammunition, a document entitled ‘How can I prepare myself for Jihad’, and a manifesto setting out his grievances and identifying DFAT as his target. During a covert phone call, Mallah admitted to an undercover operative that he was planning an attack on a government building and made threats to kill ASIO and DFAT officers. After a trial by jury, he was acquitted of Counts 1 and 2 and convicted of Count 3. Despite the facts of the case having the hallmarks of a terrorist offence, such as the targeting a government institution, possession of religious manuscripts and references to ‘jihad’, the sentencing Judge remarked that ‘by its verdict, it is clear that the jury was not satisfied beyond reasonable doubt…having regard to the definition of a “terrorist act”’.[25] Chief Justice Wood found that Mallah did not possess a publicly-oriented motive to advance a political, religious or ideological cause but rather was an ‘embittered young man’ who ‘personally felt that he had been the subject of an injustice’ as a result of his passport refusal.[26] While the physical elements of the charge appeared to be terrorist in nature, Mallah’s motive was considered to be a personal one. This case illustrates the important distinction between public and private motives in signifying the unique wrongfulness of terrorism, whereby a threat to a government institution out of personal frustration cannot be considered a terrorist attack. V. Terrorism and the Declaratory Function of the Law Ashworth outlines the three key functions of criminal law: to declare that certain conduct is a public wrong, to institute the threat of punishment as a deterrent, and to censure those who nevertheless commit the offence.[27] These three functions are not equally applicable to every offence. In the case of terrorism, it is unlikely that criminalisation and the risk of censure will significantly deter terrorists from committing a terrorist act. Anti-terrorism laws have ‘marginal deterrent value’[28] because criminal sanctions are not believed to dissuade terrorists from their political, religious or ideological cause, particularly if they are willing to die in pursuit of their motive or reject the legitimacy of the legal system, to begin with. Adopting this view, the enactment of anti-terrorism laws serves a declaratory rather than punitive function to publicly condemn acts of terrorism, satisfy public indignation and placate demands for justice. The declaratory function of anti-terrorism laws is supported by the Sheller Committee’s Parliamentary Review of Security Legislation. The Committee noted that ‘Parliament intended that the definition of a ‘terrorist act’ reflect contemporary use of that term in political and public discourse to stigmatise certain political acts…’ and that the motive element under subsection (1)(b) ‘appropriately emphases a publicly understood quality of terrorism’.[29] From this review, it is apparent that Parliament’s primary focus on the motive element in the definition of ‘a terrorist act’ is an alignment with community expectations and popular understandings of terrorism. However, there is a fine balance between legitimating criminal laws by aligning offences with community standards and moral values and exercising penal populism to satisfy public demands for vengeance. VI. The Terrorist Label and Fair Labelling Despite its evolving definition, the concept of terrorism has retained significant political and moral currency. From the ‘Reign of Terror’ during the French Revolution to radical Islamic terrorism after the September 11 attacks, the ‘terrorist’ label has endured a longstanding capacity to stigmatise and de-humanise those upon whom the label is imposed. The moral potency of the terrorist label beyond its legal signification has rendered the term ‘slippery and much-abused’.[30] It has been deployed to censure various manifestations of violence, from revolutions, and political protests to State terrorism. This debate over how violence is represented and defined becomes a struggle over its legitimacy.[31] In the absence of a clear definition, the label of terrorism becomes more vulnerable to misappropriation. Borradori argues that this ‘semantic instability’ and ‘conceptual chaos in public or political language’ privileges dominant powers to de-legitimise or criminalise conduct according to prevailing political interests.[32] Given the strong moral and political stigma attached to the term ‘terrorist’, careful attention must be given to the principle of fair labelling when defining terrorism offences. Labelling, in its literal sense, as the process of classifying, describing, and identifying, plays a significant role in criminal law. Criminal offences are defined and categorised into a statutory framework that demarcates degrees of wrongdoing and sentencing options depending on the seriousness of the offence. Chalmers and Leverick argue that labels are important in describing the offences to the general public and differentiating the offending behaviour for those working within the criminal justice system.[33] This process of labelling is a declaratory enterprise whereby the label of an offence communicates the nature of a crime and the degree of condemnation that should be attributed to an offender by the general public and criminal justice system. Ashworth notes that one of the primary aims of criminal law is to ensure a proportionate response to law-breaking and that fairness demands that offenders be labelled and punished commensurate with their wrongdoing.[34] In the context of terrorism, it must first be asked who the intended audience of the label is? The legal definition of terrorism is intended for the offender, operatives of the criminal justice system and the community at large. In terms of the offender, labelling is important in communicating what constitutes a terrorist offence and how the commission of such an offence will impact findings of guilt, sentencing, and the offender’s criminal record. While it is argued that anti-terrorism laws have a minimal deterrent effect, it remains essential that acts of terrorism are clearly defined due to the harsh penalties involved (maximum penalty of life imprisonment) and strong social stigma. This is particularly pertinent in the prosecution of inchoate offences, such as the possession of documents or financing of groups with terrorist affiliations. These preparatory acts carry heavy sanctions and stigma under the wide umbrella of ‘terrorism’. Agents of the criminal justice system, such as judges, lawyers and parole officers, also rely on the labelling of offences. Prior to conviction, the labelling of offences dictates the elements that need to be proven beyond a reasonable doubt, plea negotiations and jurisdiction of the court. After conviction, labels also affect the sentencing outcome, notations on criminal records and classifications within prisons. The labelling of an offence as an act of terrorism can have a significant impact on an offender’s prospects of bail, procedural implications such as control orders and the length of detention without charge, as well as the level of media and political attention. In addition to the practical implications of labelling, offence labels also convey to the community the seriousness of an offence and the extent of the offender’s wrongdoing. Labels may draw upon existing social values and signify the degree of moral condemnation and ‘othering’ to be imposed on an offender. Accepting that labels play an essential role in criminal law, consideration must then turn to how terrorism offences can be fairly labelled. Ashworth notes that fair labelling has a more direct connection with common patterns of thought in society, and ‘where people generally regard two types of conduct as different, the law should try and reflect that difference’.[35] The distinguishing feature of a terrorist act (as opposed to existing offences such as murder or conspiracy) is the motive element to advance a political, religious or ideological cause. Simester and Sullivan note that ‘the criminal law speaks to society as well as the wrongdoers when it convicts them, and it should communicate its judgement with precision, by accurately naming the crime of which they are convicted’.[36] Under the Australian Commonwealth Criminal Code Act 1995, the category of terrorism offences is far-reaching, ranging from large-scale terrorist acts causing significant casualties[37] to ‘possessing things connected with terrorist acts’.[38] Despite the significant variation of harm caused by such actions, the strong stigma of the ‘terrorist’ label remains constant. In light of the severe moral stigma attached to terrorism, liberal use of the term would dilute its declaratory function and cause unfairness to an accused due to the lack of certainty regarding what constitutes a terrorist offence. Given the broad ambit of conduct that may be considered terrorist in nature, the inclusion of a motive element under statute provides greater legal clarity to criminal justice practitioners and accused persons. From a declaratory standpoint, the legislature has defined a terrorist motive to publicly declare that the use or threatened use of violence for a political, religious or ideological cause is considered distinctly wrongful and will attract distinct legal sanctions. The inclusion of a motive element ensures that the ‘terrorist’ label is appropriately directed towards offenders who intend to use violence to advance their political, religious or ideological causes and safeguards offenders who do not harbour such public-oriented motives, as in the case of Mallah above.[39] Terrorism offences often attract media attention that draws upon popular preconceptions of terrorism rather than its legal definition. As a result, many accused persons are branded with the ‘terrorist’ label without being proven to have committed ‘a terrorist act’ to the requisite legal standard. An example is the ‘2019 Sydney CBD Stabbings’, which was initially reported in the media as a terrorist attack but was ultimately prosecuted under non-terrorism offences. In this case, Mert Ney stabbed one woman to death, stabbed a second woman indiscriminately and then proceeded to run through the Sydney CBD yelling ‘Allahu Akbar’. The Supreme Court ultimately ruled that the offender possessed the requisite intent to kill, partly informed by his mental disorder, but did not have a terrorist motive: ‘The evidence indicates that the Offender had no commitment to any faith and was not a religious zealot. He had become obsessed with the Christchurch massacre, but not because he was adherent to radical and extremist beliefs himself. On 13 August 2019, he took on the trappings, gestures and language of a terrorist in the apartment after murdering Ms Dunn and in the streets of Sydney. All who saw him would be forgiven for concluding that he was a fixated person with a commitment to a terrorist cause involving violent jihad. However, the evidence does not support such a conclusion’.[40] Bhatia notes that ‘rarely is the combatant’s decision attributed to a complex array of factors and events’[41], such as mental illness or discrimination, and media outlets often focus solely on the terrorist motive ‘in the belief that simplicity is a stronger pull than context’.[42] This gives rise to the argument that a statutory distinction between terrorism and non-terrorism offences through a motive element does not necessarily translate into a practical distinction. Conduct which bears the hallmarks of a terrorist offence, such as indiscriminate public violence, may result in a person being labelled a terrorist without possessing a legally defined motive. VII. Proving Motive at Law: Prejudice, Evidential Difficulties, and the Importance of Procedural Safeguards The inclusion of a ‘political, religious or ideological cause’ in the definition of ‘a terrorist act’ raises evidential difficulties and a risk of prejudice against the accused. Accordingly, evidence of motive in proving an element of the offence must be adduced cautiously in criminal trials and longstanding procedural safeguards, such as the exclusion of unfairly prejudicial evidence under section 137 of the Evidence Act 1995 (NSW), carries great importance. This section will consider the practical application of the ‘motive element’ in a number of terrorism prosecutions and analyse the evidential implications of proving a political, religious or ideological motive beyond a reasonable doubt. Counter-terrorism policies have placed a strong emphasis on preventative strategies and the containment of risk.[43] This is understandable given the threat of large-scale casualties and destruction inflicted by previous terrorist attacks. Section 137 of the Evidence Act 1995 provides that a court must refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice against the defendant. Unfair prejudice refers to the risk that evidence may be used to make a decision on an improper, perhaps emotional, basis, such that it ‘appeals to the fact-finder’s sympathies, arouses a sense of horror, or provokes an instinct to punish’.[44] This can present difficulties in the prosecution of terrorism offences where proving that an accused sought to advance a political, religious or ideological cause can require the admission of prejudicial or highly subjective evidence, such as extremist religious views or anti-nationalistic sentiments. The use of prejudicial evidence to prove the mental element of a terrorist act was considered by the NSW Supreme Court of Criminal Appeal (CCA) in the case of Elomar.[45] Five co-offenders were convicted of conspiracy to do an act in preparation for a terrorist act. One ground of appeal was that the trial judge erred in admitting evidence that the co-offenders were associated with a group of Islamic fundamentalists who were convicted of terrorism offences in Melbourne. It was argued that there was a real risk that the appellants would be prejudiced by the evidence of their association with the Melbourne group, and the jury would conflate their criminality with that of the Islamic fundamentalist group. The CCA ruled that the expressed attitudes of the leader of a terrorist group with whom the appellants associated and allegedly took religious guidance ‘had the capacity to significantly affect the assessment of the probability of the existence of that fact. The evidence, therefore, had probative value to a significant degree’.[46] Whilst it is peculiar to tender the violent extremist views of one person to evince the state of mind of another, the legal threshold of the probative value outweighing the prejudicial effect means that such evidence is often admissible in terrorism trials. In Elomar, there was also an objection to the tendering of ‘gruesome imagery’, including video footage of beheadings, photographs depicting dead bodies and footage of the September 11 attacks.[47] The trial judge permitted the admission of this evidence due to its high probative value, stating ‘it will enable the jury to see, according to the Crown case, that the state of mind of the accused, both individually and as a group, has gone well beyond mere anger and outrage, beyond jubilation at the success of the 2001 destruction, to a point where it exults in the cruel humiliation and gross murder of innocent persons’.[48] While the inclusion of a motive element significantly increases the probative value of evidence which would have otherwise been excluded, the Courts retain an important discretion to mitigate the prejudicial effect of admissible evidence through procedural rulings and judicial directions. In this case, the quantity of material was restricted to playing only one of six executions, without the actual beheading and audio track to minimise unfair prejudice contrary to s.137 of the Evidence Act 1995 and distress to the jury.[49] Furthermore, the judge gave directions to the jury as to how this evidence could be appropriately used in their deliberations and that its relevance was contained to assessing the state of mind of the accused. In the case of Fattal,[50] the appellant was convicted of conspiring to do acts in preparation for a terrorist act. The proposed terrorist act was to attack the Holsworthy Army Barracks by shooting as many soldiers as possible, and Fattal’s involvement was to assess the susceptibility of the target. In support of the motive element, there was a substantial body of evidence, mostly intercepted telephone calls, proving that Fattal possessed a hatred for Australian ‘kuffars’ (non-believers) and institutions, particularly Australia’s military involvement in the Middle East. Generally, the admission of evidence indicating an accused’s hatred for a country and its citizens would be highly prejudicial as it can evoke an emotional response from the jury or sentencing judge. However, for terrorism offences, the evidence goes directly to an element of the offence. As with the Elomar case, the inclusion of this evidence is indeed prejudicial; however, not unfairly, so it warrants exclusion under Section 137 due to its high probative value in proving motive. It is argued that the addition of a motive element to the definition of ‘a terrorist act’ creates a further hurdle for the prosecution, which can be difficult to prove because of its subjective nature. In the case of AB[51], the accused faced two charges of doing an act in preparation for a terrorist act and using a telecommunications network with the intention to commit an offence. The accused was seventeen years of age and was diagnosed with an intellectual disability and Asperger’s syndrome. The Crown alleged that AB published a series of posts on a website stating he intended to kill members of the public with a knife in a suicidal attack in a crowded area in Sydney. The Crown did not allege that AB planned his attack in association with any religious or political affiliation but rather wanted to make a statement about the mistreatment of persons with mental illness. In AB’s bail application, Justice Beech-Jones considered the Crown case, noting, ‘I have great difficulty in accepting that that material is capable of demonstrating an intention to advance a ‘political, religious or ideological cause’.[52] While AB’s plan displayed the physical hallmarks of a terrorist act, namely indiscriminate violence on members of the public to advance a cause, it did not meet the legislative requirement that the cause is ‘political, religious or ideological’. Whilst it may be arguable that raising awareness of mental health issues is a political issue, a broad interpretation of the motive element carries inherent dangers in the misuse of terrorism offences and disproportionate labelling, as discussed above. VIII. Constitutional Challenges The constitutional validity of the inclusion of a ‘political, religious or ideological cause’ in the definition of ‘a terrorist act’ has been challenged in Australia and abroad. Returning to the Fattal case, one ground of appeal was that the appellant El-Sayed had a constitutional right to freedom of religion under s.116 of the Commonwealth Constitution and thus was free to seek an Islamic fatwa to carry out a planned attack on the Holsworthy Army Barracks. It was held by the Victorian Supreme Court that s.116 of the Constitution does not confer absolute freedom of religion, and Parliament is acting within its constitutional authority to enact laws prohibiting the violent practice of religion if reasonably necessary for the protection of the community and the interests of social order.[53] This reasoning is echoed by the Canadian Supreme Court in the case of Khawaja.[54] Under the Canadian Criminal Code, section 83.01(1)(b)(i)(A) provides that terrorist activity must be ‘for a political, religious, ideological purpose, objective or cause’.[55] It was argued that this motive clause was an infringement of the freedom of expression encoded in s.2(b) of the Canadian Charter of Rights and Freedoms. The Supreme Court upheld the constitutional validity of the motive clause ruling that, while the prohibited terrorist activities are in a sense expressive, threats and acts of violence fall outside the protection of s.2(b) of the Charter.[56] A purposive interpretation of the actus reus and mens rea requirements of the terrorism legislation excludes liability for non-violent conduct that a reasonable person would view as capable of facilitating terrorist activity.[57] Furthermore, the secondary argument that the motive clause would encourage unfair profiling on the basis of ethnicity or religious belief was rejected by the Court. It was held that improper conduct by State actors and law enforcement agencies ‘cannot render what is otherwise constitutional legislation unconstitutional’,[58] and the provision is clearly drafted in a manner respectful of diversity, allowing for the non-violent expression of political, religious, or ideological views. IX. Conclusion This article presents a discussion on the role of motive in terrorism offences and whether the definition of a ‘terrorist act’ under section 100.1 of the Criminal Code should include the intention to advance a political, religious or ideological cause. Contrary to the longstanding principle that motive is irrelevant in criminal liability, it is argued that the motive element behind terrorism offences is what makes it distinctly wrongful. By delineating a moral distinction between terrorism offences and other crimes which share the same actus reus (such as murder), it is argued that the exclusion of motive would defeat the declaratory function of the criminal law to signify the use of violence for political, religious or ideological purposes as a discrete public wrong. However, in light of the strong social stigma and legal sanctions attached to the terrorist label, careful consideration must be given to the principle of fair labelling when defining ‘a terrorist act’. Fair labelling demands that offenders be labelled and punished in proportion to the degree of wrongdoing. In order to fairly label terrorism offences, the inclusion of a motive provides a clear indication of the degree of wrongdoing and, consequently, the level of legal and social sanctions which should be imposed on the offender. Furthermore, the strong political and moral judgment attached to the ‘terrorist’ label means that the term can be subject to misuse. The added specificity of a motive element in the definition of a terrorist act can prevent the misappropriation of the label. Whilst this article ultimately supports the inclusion of a motive in the definition of ‘a terrorist attack’, there are clear evidential issues arising from the onus on the prosecution to prove the accused intended to advance a political, religious or ideological cause beyond a reasonable doubt. The motive element significantly broadens the scope of admissible evidence that would otherwise be impermissible, such as the accused’s religious beliefs or hatred for their country. Consequently, the admission of evidence to establish motive must be balanced against conventional safeguards in criminal procedure to protect the fairness of the trial and integrity of the criminal trial, such as the exclusion of prejudicial evidence under Section 137 of the Evidence Act. Finally, the motive element under section 100.1 is constitutionally valid as it does not violate the freedom of religion under section 116 of the Commonwealth Constitution and only prohibits the advancement of a religious cause through violent means. Ultimately, it is imperative that terrorism is carefully defined with reference to a clear motive element to accurately distinguish it from other types of offences and serve the criminal law’s declaratory function of communicating to offenders and society what makes terrorism distinctively wrongful. Deborah White Deborah White is a criminal prosecutor from New South Wales, Australia. She completed an MPhil in Criminological Research from the Cambridge Institute of Criminology and served as President of the Cambridge Graduate Law Society. Deborah holds a Bachelor of Law and International Relations from the University of Sydney. [1] Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (Oxford University Press 2013) 155. [2] De Gruchy v The Queen [2002] HCA 33 [28] per Gaudron J, McHugh J and Hayne J. [3] Criminal Code 1995, (Cth) s. 100.1. [4] Frederick J Hacker, ‘Terror and Terrorism: Modern Growth Industry and Mass Entertainment’ (1980) 4 Terrorism: An International Journal 143. [5] Criminal Code (n 3) 100.1(1)(b). [6] ibid 100.1(1)(c). [7] ibid 100.1(1)(a). [8] The requirement for proof of mens rea is described by the Commonwealth Attorney-General’s Department as ‘one of the most fundamental protections in criminal law’ (Attorney-General’s Department (Cth), A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (2011) [2.26]). The principle of mens rea is confirmed in the Australian High Court case of He Kaw The v The Queen (1985) 157 CLR 523, 582. [9] Bernadette McSherry, ‘Terrorism Offences in the Criminal Code: Broadening the Boundaries of Australian Criminal Laws’ (2004) 27 UNSW Law Journal 354, 360. [10]Hyam v Director of Public Prosecutions (Cth) [1974] UKHL 2 [73]. [11] Alan Norrie, Law and the Beautiful Soul (The Glasshouse Press 2005) 37. [12] ibid 67. [13] Jeremy Horder, ‘On the Irrelevance of Motive in Criminal Law’ in Jeremy Horder (ed), Oxford Essays in Jurisprudence, (4th edn, Oxford University Press 2000) 114. [14] ibid. [15] DPP v Karabegovic (2013) 41 VR 319. [16] Director of Public Prosecutions (Cth) v Fattal [2013] VSCA 276. [17] Phillip Ruddock, ‘Law as a Preventative Weapon Against Terrorism’ in Andrew Lynch, Edwina MacDonald, and George Williams (eds) Law and Libery in the War on Terror (The Federation Press 2007) 5. [18] United Nations Human Rights Commission, UNComHR Res 2001/37: Human Rights and Terrorism (2001) Preamble. [19] Ben Saul, Defining Terrorism in International Law (Oxford University Press 2006) 36. [20] Kent Roach, ‘The Case for Defining Terrorism with Restraint and Without Reference to Political or Religious Motive’ in Lynch, MacDonald, and Williams (n 17) 39. [21] ibid. [22] Parliamentary Joint Committee on Intelligence and Security, Review of Security and Counter Terror Legislation (December 2006) 5.25. [23] R v Mallah [2005] NSWSC 317. [24] Criminal Code (n 3) s. 147.2. [25] Mallah [2005] NSWSC 317 [26]. [26] ibid 317 [38]. [27] Ashworth and Horder (n 1) 22. [28] Saul (n 19) 16. [29] Security Legislation Review Committee (Sheller Committee), Parliament of Australia, Report of the Security Legislation Review Committee (Australian Parliament House, 2006) 6.22. [30] Paul Wilkinson, Terrorism and the Liberal State (Macmillan 1977) 47. [31] Michael V Bhatia, ‘Fighting Words: Naming Terrorists, Rebels and Other Violent Actors’ (2005) 26(1) The World Quarterly 13. [32] Giovanna Borradori, Philosophy in a Time of Terror: Dialogues with Jurgen Habermas and Jacques Derrida (University of Chicago Press 2013) 105. [33] James Chalmers and Fiona Leverick, ‘Fair Labelling in Criminal Law’ (2008) 71(2) MLR 217-46. [34] Ashworth and Horder (n 1) 77. [35] ibid 79. [36] Andrew Simester and G R Sullivan, Criminal Law: Theory and Doctrine (3rd edn, Hart Publishing 2007) 30. [37] Criminal Code (n 3) s. 101.1. [38] ibid s. 101.4. [39] Saul (n 19) 5. [40] R v Ney [2021] NSWSC 529[166-167] per Johnson J. [41] Bhatia (n 31) 18. [42] ibid 19. [43] Commonwealth of Australia, National Counter-Terrorism Plan (4th edn, Australia and New Zealand Counter-Terrorism Committee, 2017) 10. [44] Papakosmas v The Queen (1999) 196 CLR 297[97]. [45] Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303. [46] ibid 248. [47] ibid 156. [48] ibid 419. [49] ibid 409. [50] Fattal [2013] VSCA 276. [51] AB v Director of Public Prosecutions (Cth) [2016] NSWSC 1042. [52] AB [2016] NSWSC 104 [226]. [53] Fattal [2013] VSCA 276 [126] – [127]. [54] Khawaja v The Queen, 2012 SCC 69. [55] Criminal Code (Canada), RSC 1985, s. 83.01(1)(b)(i)(A). [56] Khawaja (n 54) 7. [57] ibid 6. [58] ibid 47.