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

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

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

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

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

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

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

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

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

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

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

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