top of page

168 items found for ""

  • On Rules-based Order

    There is a certain irony in a prisoner of law receiving a prize given by lawyers. Something must have gone very wrong when one who pledged to serve the law receives recognition instead for allegedly breaking the law. So perhaps this is a good opportunity to reflect on the lawyer’s relationship with the law, or more broadly, the rules-based order—whether national or international. As lawyers, we were trained on law as it should be—as an impartial guardian of justice and freedom, grounded in truth and equality, enacted in a democratic spirit. We build our theories and practices, including professional rules, norms, and principles, on how to understand and interact with the law, based on such an idealized conception of what law is. But this is akin to building our practice on a myth. For the real world is a much less happy place; most of humanity do not live under conditions of justice or anywhere near it. They must live with laws that oppress, not protect. They are exploited by laws that they have no say in making or shaping. Laws that suffocate them never touch the elites. The people out there experience the law as it is, not as it should be—as high principles that sound good but taste bad. For lawyers who are not content to live in a myth, how should we conduct ourselves with regard to the real laws? When the constitution mandates a Party’s absolute leadership, does allegiance to the law require honouring one-party rule? When a law is secretly made and suddenly sprung on the populace, do you accept or reject its authority? When you know full well that senseless and burdensome rules are only selectively imposed on the disfavoured, do you counsel disregard for the law or insist on equal enforcement? When rights written into laws are in practice honoured in the breach, and when renouncing those rights is the surer path to safety, do you advise your clients on the law-as-it-is or the law-as-it-should-be? For this is the reality myself and my colleagues are living with, day in, day out. The idolization of law is of course, not limited to lawyers. A common refrain by politicians across the world these days is the need to uphold a ‘rules-based international order’. Not rights-based, not values-based, but rules-based. Perhaps the concept of ‘rules’ is seen to be less political, more neutral, less divisive. Agreeable to both democrats and autocrats alike. But herein lies the catch—autocrats like this formulation too precisely because a rules-based order can serve them just as well. Rules, or laws, do not run themselves, but are dependent on people who make them, interpret them, and enforce them. They are not divine, absolute truth, but rather creatures of habits and accidents, design and oversight, aspirations and baseness. Ultimately, laws are statements of power. Far from being a panacea for a troubled world, laws propped up by unjust power could bring about the greatest nightmare. History is strewn with examples of the law’s crimes. The most oppressive state is seldom the failed state that abjures law and order, but a pervasive state that excels at using law to order society to unsavoury ends. The Holocaust did not happen because of a lack of rules, but because of rules made by the Nazi party. Apartheid was not a natural order, but the result of rules imposed by a white minority. Millions of Uighurs were not interned because of arbitrary reprisal, but because of a systematic policy implemented through a plethora of rules and regulations. And in the city I call home, a national security law unilaterally imposed by Beijing made ‘criminals’ out of many friends of mine, who are scholars, legislators, lawyers, journalists, unionists, and activists—namely, law-abiding citizens doing what they have always done, what they consider their duty. An unjust system also needs rules to function and to perpetuate itself, as much as a just system needs them. Indeed, rules can often cloak injustice with a veil of institutional legitimacy, facilitating the implementation of evil at scale through bureaucratic efficiency and indifference. When the Great Firewall of China becomes a routine fact of life backed up by the authority of laws, few continue to acknowledge it as the gross human rights violation that it is. But surely this massive infrastructure to wall off free information is a daily violation of the rights of billions to information, expression, and communication. Further, in producing a trapped audience that amounts to one-sixth of the world’s population, it provides a solid base for disinformation and prejudice to take root and spread, which in turn exports pressure to censor and poisons debates well beyond the Chinese border. Yet tech companies—local and foreign alike—are untroubled by their participation in the world’s largest attempt at thought control, since they can always say that they are merely ‘complying with legal requirements’. Law thus becomes an excuse to calm our conscience, numbing us to the part we play in evil. ‘Rules are rules’, say the officials, say the judges, say the prison warden. And the elephant in the room snorts. Who made the rules, anyway? The problem goes beyond bad actors intentionally making bad laws. It is also about how laws are applied to the real world. Where a law is explicitly made for an objectionable purpose, we can easily point that out and say, let’s repeal this, or even, let’s disobey this. But situations of such moral clarity are relatively rare. More often, what we face is the illegitimate use of otherwise legitimate laws. In Hong Kong, thousands of protesters are currently incarcerated by a colonial era law on public order, not by a Beijing-made law. Our police’s favourite weapon for bludgeoning free speech is a long dormant British law, the law on sedition. And last month, a man who took some photos on a hilltop with hand-held slogans was arrested for allegedly breaching regulations protecting the countryside. We also see money laundering laws cited as reasons to refuse bank service to NGOs and dissidents, laws on foreign agents abused to strangle and slander rights organisations, and fire and building regulations weaponised to harass shops and groups with pro-democracy sympathies. Laws on money laundering, public order, and fire safety of course have their place in any legal system. Yet again, laws do not enforce themselves but are enforced—and observed—by men. In a society suffused with the lopsided power of the state, such an imbalance inevitably corrupts the execution of laws. When state power goes unchecked, the legal system as a whole is degraded, which cannot be saved by blaming it ills on a few bad laws. The opposite side of the same coin is the increasing impotence of so called ‘good’ laws, chief among them being human rights laws. Yes, our constitution largely adopts the International Covenant on Civil and Political Rights, but that has not stopped the continuing crackdown on civil society. Officials unabashedly proclaim their respect for rights while trampling on them with impunity. Without people committed to—and with the power of—realizing them, human rights laws are but decorative frills on the statute book. Dictators have little qualms in publicly ‘committing’ to the loftiest principles since they are not bound by them. Instead of allowing such commitments to constrain their action, they use those words to constrain how reality can be perceived, such that their ‘righteousness’ can never be shaken. Forced labour in Xinjiang does not exist. Allegation of torture is foreign propaganda. Nothing happened on Tiananmen Square on that fateful day 34 years ago. With the law on the side of the state, contradictory voices and facts are easily suppressed, discredited and eliminated from view. As shown by the fact that I must speak to you from prison, and the fact that most Chinese people would never know why Xu Zhiyong and Ding Jiaxi are imprisoned—or have even heard of their names. Impunity at home transposes to impunity abroad. In a world order built on the concept of sovereign states, a government’s global action is constrained only insofar as effective constraints exist domestically. Thus the Chinese government is not shy of acceding to, or themselves proposing, rules of international engagement that sound fairly high-minded, because hardly anyone—least of all its own people—can hold it to account. It can propose the building of a ‘community with a shared future for mankind’ while destroying every sense of community among its people, producing a highly atomised society. It can tout respect for diversity in a so-called Global Civilization Initiative, while running a ruthless machinery of censorship and engaging in harsh repression against cultural and religious minorities. It can advocate sustainable development while hobbling all grassroots attempt to monitor environmental ills. It argues for the democratization of international institutions while assuming even more totalitarian control. It urges respect for a people’s choice of their own system of governance while never giving that choice to its people. Still we see more and more countries, from Chile to Nigeria, Serbia to Indonesia, and even UN Secretary General António Guterres expressing support for these ‘major global initiatives’. When other countries sign onto these seemingly benign initiatives of China, they should be aware that they are not entering into genuine, mutual agreement of principles but a propaganda drive to reshape reality. The power of these initiatives is less in their content and more in their number of ‘adherents’. The more people echo these formulations, the more prestige accrues to the proposer, the more credible is their version of reality. The form of these words become all important while the words themselves lose meaning. It is in fact, Václav Havel’s story of the greengrocer repeated on a global scale. If the problem is just about empty promises and misused provisions, then the rules-based order is perhaps still salvageable. All we need to do is to call out the rule-breakers, and when the opportunity comes, reactivate those neglected provisions. Or can we? Not if the meaning of the rules has completely changed. Again, the experience of Hong Kong provides a cautionary tale. Many of the worst violations in human rights of the past few years were sanctioned by or enforced through the courts, but not because judges suddenly forget our human rights laws. Rather, those laws are reinterpreted in a way that is compatible with gross human rights violations, through subtle shifts in the meaning of words and concepts integral to that discourse. For example, the concept of ‘national security’ used to have a fairly definite ambit, being internationally recognised as a legitimate reason to restrict rights. However, since the advent of the National Security Law, the term has taken on an ever more expansive and partisan meaning, to the point that a common citizen speaking her mind can be considered a national security threat justifying indefinite pre-trial detention—if her views might contradict with those of the Party. The language of rights and balance is still there, but the substance has completely changed. And there is little pushback from the judiciary to such shift in meaning of ‘national security’—instead, the Party’s narrative on the term is swallowed whole in the name of deference and entrenched through successive case law. Here we see how sensible legal principles developed in a democratic context, such as deference or emphasis on legislative intent, could lead to contradiction and injustice when transplanted to an undemocratic system. For the ‘legislative intent’ behind laws such as the National Security Law is quite clear, and if an independent court, groomed in the common law tradition, sincerely sees its mission as the implementation of such intent, then even an ‘independent court’ would in practice become the enforcer of the Party’s partisan will. In a similar vein, the scope of what counts as peaceful protests has been steadily compressed by an ever looser interpretation of ‘violence’, which led to lengthy jail terms for thousands of protesters who have not themselves committed any act of violence, but were merely present at, or near to, a scene where violence erupted. Thus we find even first aiders and mediators sentenced to years of imprisonment as ‘rioters’, all while the right to ‘peaceful’ demonstration is expressly honoured. A similar trend is occurring in the realm of what counts as hate speech, where criticism, or even just sarcasm, are increasingly equated with the stroking of hatred. Indeed, what you are now reading is likely to fall within that amorphous realm of ‘inciting hatred’ by the standard of new Hong Kong, and thus, not entitled to free speech protection in our law. While on the surface we still speak the same language of rights as adopted from international instruments and precedents, in practice a huge gulf has emerged between our courts’ understanding of rights and international standards. Words and their meaning are ultimately malleable, and judges are not miraculously insulated from how the wider society perceives words and constructs narratives. Quite the opposite, in fact: a healthy legal discourse cannot be had without the courts engaging in an open, continuous conversation with the society on important principles such as justice and rights, through citizens and lawyers who bring and defend cases, construct arguments, highlight injustices, and criticize or celebrate key judgments. Where such conversation is largely free and democratic, we might manage to approach justice. Where it is stunted or captured by partisan interests or, worse, by an overbearing state, legal discourse suffers. I have already alluded to the myriad ways in which the Party-state can influence judicial reasoning. Such shifts in meaning and interpretation do not occur overnight, making them all the more difficult to detect and resist. Each step builds on the last, with plausible sounding legal justifications, until step by innocuous step we end up in a completely unrecognisable place, where prisoners of conscience populate our prisons. Protestations that our judiciary is still ‘independent’ are quite beside the point; the Party simply has little need of old style, explicit direction of individual cases when political control already permeates every pore of society. Such overt interference is rather, a last resort and a sign of failure. When the ‘independent’ court is ‘voluntarily’ jailing dissenters and destroying civil society, why interfere? What happened in Hong Kong is not an anomaly but a warning. The Party’s power to redefine words and subvert their meaning does not stop at the Chinese border. And unlike during the Cold War, when one could identify and counter a distinct communist ideology and phraseology, today’s China is speaking the same liberal language of rights, democracy, and peace. Crucial differences of course still exist, but they are camouflaged under a raft of comforting phrases. Those of us who live under the Party’s rule know that these familiar terms carry very different meanings in Party-speak. Rights are not about what individuals can assert against the state, but about empowering the state to safeguard the ‘rights’ of the people. Democracy is not about citizens holding leaders accountable through free association, expression, and election, but about leaders ‘graciously’ listening to the voice of the people through controlled channels. And peace is about ensuring submission to the Party’s order through whatever means, not the rejection of war or hatred. With China’s growing stature, its way of using and interpreting words is inexorably seeping into international discourse. Sometimes this is a pure power play, as when it strongarms other nations into echoing its proposals and positions. At other times it is a matter of practicality; if one wishes to communicate with China, its way of understanding key concepts in that dialogue cannot just be laughed away. Recently, the media has reported on voices from the US calling on US and Chinese leaders to come to some agreement on how to define ‘national security’—a seemingly sensible suggestion to accommodate differences, but see what happened when the Party redefined ‘national security’ in Hong Kong. And what is next? Should they go on to seek agreement on how to define human rights, or even democracy? Ceding to the state the authority to define words is a treacherous path, but when China is playing that game, others may be sorely tempted to follow. There is still another way in which Party-speak slips in, namely through the logic of our own values. When the Chinese government proposes qualities like ‘peace, development, fairness, justice, democracy, and freedom’ as ‘common values of humankind’, it is saying something very different from the liberal understanding, yet with a vocabulary and logic we cannot reasonably reject. Surely we do not deny that things like democracy and justice are important, shared values? So what does it matter if we call them ‘universal values’ or ‘common rules of human kind’? But of course it does matter: the concerted effort to replace ‘universal values’ with ‘common values’ is part of the same attempt to take away the power of articulating values from ordinary people, and putting it into the hands of the state. While there is no single authority on what is meant by ‘universal values’, the ‘common values of humankind’ are the Party’s property, and can be easily moulded to the Party’s liking, as with many seemingly benign formulations of the Party. When one adopts them out of courtesy or indifference, the Party gains another foothold in its war on meaning. As Party-speak gets increasingly mixed into international principles and rules, the danger is that the meaning of these principles itself becomes distorted and confused, losing any conceptual coherence and hence any ability to set standards, guide conduct, or communicate values. Just see how the so-called ‘One China Principle’, which attains almost universal agreement, can in fact mean almost anything depending on the speaker. Instead of signalling consensus, the dominance of such a ‘norm’ only prevents the clear articulation of genuine differences, which in turn compromise efforts to resolve them. Or how the principle of ‘One Country, Two Systems’, the basis on which the UK agreed to hand over Hong Kong, is said to be more ‘accurately implemented’ even as it is being violated. The greatest threat to the current rules-based order lies not in the express renunciation of existing rules, but in their appropriation and subversion. The body of that rules-based order may live, but its soul could be lost. In highlighting how a rules-based order can fail us, I am of course not advocating that we give up on having rules altogether. Far from it. But I do say that we should drop the pretence that law is independent of politics, or that a lawyer can do his job just as well by turning a blind eye to the power dynamic in a society. Rather, how parties, witnesses, jurors, and judges interact is constantly affected by it. The letters of the law are but a skeleton; it is power that fills in the gap and animates them, not to mention writing them down in the first place. The law constrains power to certain extent but never determines its action, while on the other hand, power cannot take form and act on the world without the law. In that sense, all effective order—as opposed to disorder—must be rules-based, except perhaps the smallest unit where the will of the powerful can directly mediate everything. The key questions are not whether an order is rules-based, but what kind of rules it is based on, and what kind of power animates it. Is the law a skeleton for a human being or a shark? Is the resulting order a healthy one in harmony with itself, or a Frankenstein with a wing for an arm and an atrophied leg? But perhaps the Frankenstein is in fact a kind-hearted creature, while the physically healthy man is a ruthless murderer. If what we are after is a just order, we must also work on building a just distribution of power instead of just worshipping rules. Only when power is genuinely shared can laws be the shared expression of a community instead of the will of a few. Only when values hold greater power than force can laws function as a rational system of principles instead of a litany of brute commands. And only when laws faithfully express a community’s values can they gain the members’ respect and allegiance, instead of evoking fear and resentment. The questions of who and what has power in a society are intertwined. Values can have power only when power is fairly equally distributed among a people. For values are values only when backed by conscientious commitment, or else they are just window dressing for ulterior interests. Just see how communism has all but lied in ‘Communist China’ despite its prominence in official discourse. Since the voice of conscience can only come from within, and can be neither delegated nor centralized, conscience has power only when individuals have power. Law as values is, therefore, possible only when individuals have a share in state power, when each touched by the law can judge it and mould it in turn, in accordance with his own conscientious understanding of the law’s values. Law-as-values is not about rigid principles set in stone, but is itself a living conversation conducted on an egalitarian basis. As such, it must allow for uncertainty and contradiction, and does not guarantee success or lasting agreement. That order has nevertheless emerged out of such cacophony is the great miracle of the liberal experiment, and a testimony to the existence of universal values among humanity, which alone can anchor such a dynamic and pluralistic order. In contrast, when individuals are disempowered, dominated by the outsized power of the state machinery or factional interests, laws inevitably degenerate into an expression of force. For law-as-force does not require giving space to conscience or debates. Indeed, the grooming of obedient, unquestioning ‘soldiers’ is often the quicker way to amassing overwhelming power, which ensures the stability of the resulting ‘rules-based order’. With the rise of authoritarianism, what is at risk is not the existence of a rules-based order, but the authority of values in that order. A values-based order does not necessarily follow from a rules-based order, a distinction often overlooked by those who have always lived under a liberal order. Nor is the battle between law-as-values and law-as-force settled once and for all once important values are enshrined in foundational legal documents. Rather, laws as genuine statements of values are a rare and fragile achievement made possible only through hard-won democratization of power and sustained through the constant effort and vigilance of people committed to those values. In other words, it depends on whether we can keep the conversation on values alive and inclusive—which is where Hong Kong has failed. What has disappeared there is neither a rules-based order nor an ostensibly liberal constitution, but the guiding power of liberal values in the day-to-day working of that order. It is a fate that may befall more shall we fail to defend our values, head-on. We must put values back at the centre of our laws and our politics instead of dismissing them as a quaint preoccupation of idealists. Difficult and no doubt contentious debates on the content and implication of universal values cannot be sidestepped in order to placate dictators, appease demagogues, or secure material gains. This way lies the confirmation of the power of force over values, paving the path to their further erosion. In that sense, defending the rights of people everywhere is about far more than just helping others: it is at the heart of the battle to define ourselves and the order we have built. Are we truly a community of principles, or are we just as cynical as the dictator next door? Are we sincere about building a world order based on values, or are we happy with whatever kind of order so long as we are on the winning side? As far as inclusiveness is concerned, it is indisputable that the current international order is heavily dominated by the West, and thus still quite far from the ideal of law-as-values. But the way to improve it is not by giving more voice to the non-Western dictators, which would only deepen the silence of the voiceless. Rather, ordinary people must be empowered to join in the conversation on values through the building of democracy everywhere. Again, a difficult and not uncontroversial task, often decried as ‘interference’ when such efforts and solidarity are extended across border. Yet if we abandon the quest for democracy, we shall have no hope of ever building a just international order based on values. As lawyers, our trade is needed in any kind of rules-based order, good or bad, just or unjust. The dignity of our profession cannot, however, survive in just any kind of order. Instead, it is bounded up with the dignity of the law, with whether the law reflects our autonomy or denies it. The building of democratic institutions that alone can safeguard the law’s dignity is also the lawyer’s duty, which is why all three of us receiving this prize today are jailed for working for democracy in China, a fight that may seem unrelated to our profession but is in fact central to it. It is a fight we cannot waver from, even when knowing that the laws we served would likely condemn us. For sometimes confronting the law-as-it-is is the only way to respect the law-as-it-should-be—and the highest service a lawyer can offer her fellow men. Chow Hang-tung Born in Hong Kong in 1985, Chow Hang-tung is a barrister. She attended the candle light vigil every 4 June with her mother in her early childhood in commemoration of the 1989 Tiananmen massacre. After secondary school she went on to read physics at Cambridge University. After completing her MA (Geo-physics) in around 2009 she joined an NGO campaigning for  China as well as international labour rights. Shortly afterwards she joined the Hong Kong Alliance in Support of the Democratic Movement in China ("the Hong Kong Alliance") as a volunteer and later became an executive member, subsequently vice-chairperson in 2016. In September 2021 she was arrested and has since been remanded in jail custody for charges under the China-initiated National Security Law, all related to her role in the Hong Kong Alliance, including one of conspiracy to subvert the state of the People's Republic of China. This speech was initially delivered at the CCBE Human Rights Award Ceremony on 24 November 2023. Patrick Poon presented the speech due to Chow Hang-tung's continuing imprisonment.

  • Rebel Rebel: In Conversation with Soheila Sokhanvari

    Soheila Sokhanvari is a British-Iranian artist whose diverse practice delves into the complexities of identity, politics, and social commentary. Drawing on her background as a former biochemist and her experiences as an immigrant to the UK at the age of 14, Sokhanvari’s journey as an artist has been shaped by her exploration of hybrid identities and the impact of her Iranian heritage. Her multimedia works, ranging from Iranian crude oil on paper drawings to traditional miniature paintings on calf vellum, reflect her fascination with storytelling, symbolism, and magic realism as tools for political expression. Sokhanvari’s recent exhibition, ‘Rebel Rebel’ pays homage to pre-revolutionary Iranian feminists, shedding light on the struggles and resilience of women in navigating patriarchal oppression. Through her art and activism, Sokhanvari continues to challenge societal norms and advocate for human rights, particularly in response to the ongoing injustices faced by women and minority groups in Iran. The Sheltering Sky (Soheila Sokhanvari 2015, egg tempera on vellum, 23.5 x 31 cm). © Soheila Sokhanvari CJLPA : Welcome, Soheila Sokhanvari. We would like to begin by thanking you for taking the time to interview with The Cambridge Journal of Law, Politics, and Art . Your extensive body of work, including multimedia pieces and miniature paintings, delves into the contemporary political landscape, with a particular focus on pre-revolutionary Iran of 1979. By employing unconventional materials such as Iranian crude oil and calf vellum, you weave together narratives of collective trauma and individual experience, addressing themes of sacrifice, democracy, and societal consciousness. Through magic realism and symbolism, your art offers a nuanced commentary on political discourse, inviting viewers to contemplate the complexities of power and identity.   What drew you to art? I understand you were a scientist prior to becoming an artist. How did your journey as an artist progress?   Soheila Sokhanvari : My father was a fashion designer and fashion model in the 1950s and 1960s. He was also an amateur artist, so he taught me how to do miniature paintings, using egg tempera, how to see the world, how to look and to record that looking. As a child, I was always exposed to Persian miniatures through folklore books or reproductions of masters. My father used to tell me stories: by looking at one painting, he would tell me the story of the entire book. So, for me, miniatures have always been like book illustrations, and I always associated them with storytelling. Perhaps I wanted to be an artist because I have so many stories I want to tell. As a child, I was like any other child, I was always drawn to painting and drawing. But that feeling of wanting to paint and draw never actually left me, and that’s the difference between being an artist and not being an artist.   My father supported me through my teenage life, although he wasn’t physically with me because I came to this country alone. I arrived with my brother, but we were separated and went to different schools. I feel like art saved my life, because when I came to this country and had to endure being away from my family, I would draw them from photographs over and over again. For me, that made them come alive, so I could relive those moments again and again. It was therapeutic, cathartic for me to have painting and drawing. It truly saved me throughout my teenage and adult life.   Although I was a scientist, I was always painting and drawing in my spare time. I studied biochemistry and I became a cytogeneticist, which is the study of chromosomes. I worked for Cambridge University’s Department of Haematology until 2005, when I decided to take a leap of faith and pursue a postgraduate diploma at the Chelsea College of Art and Design. But even before that, from 2001 until 2005, I had studied art history and fine art part-time at Anglia Ruskin University. It was a balancing act, studying three days a week at university, working three days a week, and then on Sundays catching up with both my scientific reports and my coursework. It was like wearing two hats at once. After all, until the Victorian era artists were polymaths. They could be artists, mathematicians, alchemists, architects, astronomers, astrologers, engaged in various other professions at the same time.   I became an artist because my father was an artist, and it was always my dream to follow in his footsteps. However, I often felt like an imposter in the world of science, as if I was trespassing because deep down, I knew I was meant to be an artist. It was a difficult internal struggle. My mother never wanted me to become an artist, she always hoped I would pursue a career as a doctor or a lawyer. I had a mortgage, a child, responsibilities, and a husband who opposed my decision to become an artist. Family pressures weighed heavily on me. My mother even warned me that I would end up in a gutter if I pursued art, implying I would become homeless. It felt like a constant struggle, and I had to rebel against those expectations.   CJLPA : It must feel rewarding now that you’re fully immersed in your art and excelling at it.   SS : When I decided to leave my job, I was very desperate. I just couldn’t continue anymore. When faced with such a situation, the decision felt natural and organic. The decision was actually not that difficult, but it was difficult for everyone else to accept. Women are very tenacious and rebellious by nature. Particularly Iranian women, we are always swimming against the current.   When I decided to become an artist, I was happy to give up everything, to give up my good income for a lesser income, for a bit of peace of mind and a love of what I was doing. I wasn’t looking to become an acknowledged contemporary artist, my ambitions were quite small. I thought, what’s the worst that can happen? It was all about feeding your soul, being happy, being authentic, and following your dreams. To be happy is the most important thing in life, because that’s success. Success for me is not about money or fame. Success is about being happy in what you’re doing, getting up in the morning, and just doing what you love. Success will come to you, maybe if you’re lucky, if the planets line up. I’ve been very lucky, and I have to accept that fact.   CJLPA : Often children of immigrants have a hybrid identity and can feel stuck between two worlds, similar to you being between science and art. When you emigrated to the UK at the age of 14, what was your experience like? Is this hybrid identity something you relate to?   SS : Definitely. In 1978, Iran wasn’t that different from present-day Turkey. You had women walking around in miniskirts and shorts, as well as women completely veiled. Not so different from London. I experienced some cultural differences when I first came to this country, but on a larger scale there wasn’t much difference between England and Iran. When I first came here, I saw Muslim women wearing hijabs and non-Muslims living closely together. As an immigrant, whether you come alone or with your family, you become a collage of both cultures. You embrace the new culture but still hold onto your roots. It’s about finding a balance between the two. If you abandon your previous culture, you lose your family and history. If you cling solely to your old culture, you become an outsider. So, the best approach is to embrace the hybrid situation, becoming a collage of both cultures. Depending on the context, you adapt. Having lived most of my life in England, I’m often told I’m more English than others. But with my Iranian friends, I feel more connected to my Iranian roots. Being a hybrid means you don’t fully belong to either culture, which can make you feel like an outsider. But integrating and becoming a hybrid is important for immigrants. It adds richness to cultures and makes for interesting people.   Identities are fluid, I don’t just have one fixed identity. It can change from one day to the next, depending on the group of people I’m with. I came to this country at the age of 14 and enrolled in an all-girls school. I couldn’t speak much English, and being the only brown person in the school made me an outsider from the start. Not being able to speak the language further isolated me. I didn’t know what to talk to my classmates about because our experiences were so different. While they were discussing boys and fashion, I was preoccupied with the political turmoil in my home country. It felt like we had no common ground. Even in Iran, I felt like an outsider as a child. Among my siblings, I was always the one who preferred solitary activities like drawing and reading. So, I guess I was a loner, in a way. That doesn’t sound very flattering, but it’s true.   CJLPA : Your portraits feature a unique technique, painted on calf vellum with a squirrel brush, using the ancient method of egg tempera that you learned from your father. You’ve also mentioned the influence of Persian miniature paintings. Alongside your father, what specifically drew you to these techniques and styles?   SS : Persian miniature art dates back centuries and is related to miniature paintings in the Mughal and Chinese traditions. Portraiture, on the other hand, has always been a form of propaganda, with influential and powerful individuals using it to tell their stories and immortalize themselves. I’ve been drawn to portraiture since my arrival in England. My first encounter with art was at the National Gallery during a school visit, where I was overwhelmed by works like those of Rembrandt and Van Eyck. There’s something very human about connecting with another person’s face through art. I felt compelled to tell the stories of women who have become martyrs of the revolution in Iran, marginalized and oppressed by the patriarchal regime, their images banned, and their voices silenced. It felt important to me to give them a voice through my art. This story has been burning in my chest for 44 years. Painting portraits and miniatures felt like a natural choice for me, given my love for the Persian miniature tradition passed down from my father and my cultural heritage. I wanted to create contemporary art in England that combines traditional Persian miniatures with techniques like egg tempera on calf vellum, transforming them into modern illuminations. Ultimately, I wanted to do something that had never been done before. CJLPA : Similarly, your paintings combine Islamic patterns with the stylized aesthetics of the 60s and 70s. What was the motivation behind this form of hybridity?   SS : I think the women whose stories I tell were caught between the modernity pushed on them by the Pahlavi regime and their own traditional backgrounds, being from conservative, religious, and patriarchal families. They were chosen to represent the conflict between these two forces. That’s why I wanted to incorporate these patterns in my paintings, as a metaphor for the idea that these women had their roots in traditional Islamic culture, often represented by the background resembling Persian carpets, while being influenced by the modernity of the 60s and 70s, depicted through patterns reminiscent of pop culture wallpapers and clothing. These women were pulled by different forces—modernity and tradition.   Patterns are inherently political. This is something that may not be immediately apparent, as patterns are often used in branding. For example, the Gucci pattern conveys a certain level of wealth associated with the person wearing it. On the other hand, in Islamic culture, geometric patterns, because they appear to go on forever, are meant to represent the infinity and greatness of God and the vastness of the universe. For me, patterns are never innocent; they are always deeply political. Unfortunately, Westerners have lost this connection with the meaning of patterns. Patterns also reflect a specific era. You can look at a pattern and identify it as being from the 60s or the 70s, for example. I use these patterns to place my subjects in a specific time, a specific era, as a way of storytelling.   CJLPA : Your art serves as a powerful tool for political expression, from your paintings commenting on the global impact of crude oil to your passport series reflecting alternative identities. The ‘Rebel Rebel’ exhibition pays homage to the pre-revolutionary feminists of Iran, showcasing portraits of women involved in the arts who had to navigate modernity amidst an oppressive patriarchal tradition. How did you conceive of this concept and develop it into the exhibition we see today?   SS : In 1936, the Shah of Iran decreed that women, particularly those in the cities like Tehran, had to be unveiled. Until then, they were veiled, and their lives were heavily controlled. Just imagine how oppressed they were, being forced to walk on the left-hand side of the road and disguise their voices when talking to men they weren’t related to. The Shah’s decree changed the clothing for both men and women. Men had to give up their traditional clothing and wear Western clothes, while women had to be unveiled. I was interested in the idea that women, by force, have always been subject to whatever the government wants to impose, as they become a symbol of the government’s ideology. After the Iranian Revolution, women lost all the freedom they had gained through previous struggles. They lost their human rights, their legal rights, their identity, everything.   Initially, I wanted to tell this story using my mother and father as muses for my storytelling, utilizing my family portraits as a way of telling the history of Iranian women. I understood that the story of Iranian women, my family, and women artists is something that resonates deeply. In 1979, after the revolution, one of the first things destroyed was the entire film industry in Iran. They not only destroyed films but also the equipment. They arrested actors and actresses, forcing them to sign letters of repentance, promising to never appear on screen again. I wanted to tell the story of Iranian women from 1925 to 1979, all those who tried to navigate through patriarchy, misogyny, and oppression. It’s a story that’s not widely known but one which is crucial, especially in times when fascism is on the rise globally.   My platform was provided by Eleanor Nairne, a feminist curator who saw the importance of my work. She plucked me out of anonymity and gave me the opportunity to share this narrative. Before the Barbican exhibition [Rebel Rebel], I had a smaller exhibition based on these iconic women at my own gallery, Kristin Hjellegjerde Gallery, in 2019. It was a step towards what I’m doing now, but on a smaller scale. The curator at the Barbican recognized the potential in my work and gave me an incredible opportunity to showcase it on a larger platform.   As an artist, I’ve always been political, always an activist, always speaking out on human rights, women’s rights. Even from childhood, I’ve always been a feminist, always addressing the plight of marginalized people. Before the Barbican exhibition, many people saw my paintings but never grasped how political my work was; they often saw my work as merely aesthetically pleasing without understanding the narratives embedded within. The Mahsa Amini protests taking place in 2022 at the same time as the exhibition provided context for my work, revealing what I was truly addressing. It was a bittersweet moment for me because it gave my work a global platform, but at the same time it saddened me deeply knowing people were being killed for protesting.   CJLPA : How did you decide which women to feature, and what was your experience like researching them?   SS : Researching these women was incredibly challenging, mainly because Iranian culture has not been particularly interested in documenting the biographies of its artists, especially female artists. In the past, women artists, such as dancers, were often derogatorily referred to as ‘raqqaseh’. People would attend their performances but showed no interest in knowing more about them.   Finding information about these women was nearly impossible. Many Wikipedia pages contained erroneous information, and the Iranian government actively removed or distorted information, tarnishing their reputations. However, I received a great deal of help from the curatorial assistant, Hilary Floe, who was amazing at researching for me. Another thing that greatly aided my research was the fact that some people from that era are still alive today. These women formed a close-knit group, as there were few of them in their respective fields, and maintained this bond even more tightly after the revolution, finding support and protection in one another. Through the connections of one person, I was able to contact many others. This network of friendship helped these women survive the pre-revolutionary era, the revolution itself, and the post-revolutionary period.   Another significant resource was the documentary film Razor’s Edge: The Legacy of Iranian Actresses  by Bahman Maghsoudlou. Maghsoudlou, a film critic, historian, artist, and filmmaker, spent 15 years creating this documentary, interviewing many of these women. Watching the film allowed me to hear these women speak about their lives and the challenges they faced in achieving their goals.   While my sources were limited, they were authentic. I was confident in the stories I was telling, knowing they were reliable. As for why I chose these women in particular, I was spoiled for choice, as there were many remarkable options, but I ultimately decided to focus on pioneers or women who were extremely famous and beloved by Iranian culture. I knew I could only paint a limited number of portraits.   CJLPA : Can you describe your daily painting routine and walk us through your portrait painting process?   SS : I would start by searching on Google for portraits of the women I wanted to paint. Depending on their fame, there would be either many portraits available or just one or two. For those with limited portraits, I would spend time staring at them. When you look at a photograph without taking your eyes off it for a long time, the image starts to come alive in your mind. It becomes like a frozen moment in a cinematic scene. I would see them as cinematic and capture them in my mind.   I would then create a collage by taking patterns from search engines, cutting them out, and placing them next to each other to see which patterns complemented or opposed each other. Next, I would draw the portrait on vellum using a pencil. With vellum, you have to know exactly what you’re going to do before you start because it doesn’t allow for changes easily. It’s a living support, the skin of an animal, so once you start, you can’t change your mind easily. This process is similar to miniature painting, where you design everything beforehand, and the only changes you can make are minor, such as colour adjustments. The actual painting process would take six to twelve weeks. I would grind the pigment, mix it with egg yolk, water, and five drops of white vinegar to create egg tempera, and then apply it using a miniature brush. It’s a slow technique, not fast or glamorous, but rather zen and methodical. Every shape in those paintings requires five layers of paint, so you can imagine how long it takes to complete one. By the time I finish a painting, I find myself falling in love with the person depicted. You develop a certain affection for them as you intimately know every curve and feature. You get to know them both biographically and biologically. So, these women become like friends to me. If I disliked or hated them, it would feel intolerable to paint them. Portrait painting, to me, is an act of love. It’s like expressing love through a visual medium.   CJLPA : Let’s discuss some of the women showcased in the exhibition. First up, we have Kobra Saeedi, a renowned dancer, actor, filmmaker, journalist, and poet. Could you share some insights into her and explain why she holds significance for you?   SS : Kobra Saeedi was an incredibly talented individual who hailed from a background of poverty and abuse, starved of love and food alike. Forced while still a student to perform in cabarets to raise money and support her family, she even financially assisted her siblings through their education, acting essentially as the head of the family. Following the revolution, she actively participated in protests against the compulsory hijab, aiming to document the events through film. However, her fame made her a target, leading to her arrest, torture via electric shocks, and confiscation of her assets. After her release, she found herself homeless on the streets of Tehran, a stark contrast to her previous stardom, as though Madonna were to become homeless. Kobra Saeedi is still alive, living in a shelter in Iran.   In my painting of her, I used two photographs as a reference, a headshot and a three-quarter-length photo, both very grainy and out of focus. I stared at the headshot for days until I could visualise her in that pose, taking a drag on a cigarette. I even recreated this image and had my husband photograph me, embodying her spirit. By lending her my body, I aimed to lend her a voice and depict her defiance against societal constraints, symbolized by her act of smoking, which was considered rebellious in Iran. Through her story, I sought to convey a message of resilience and empowerment, echoing Maya Angelou’s insistence that, despite everything, ‘still I rise’. Kobra (Portrait of Kobra Saeedi) (Soheila Sokhanvari 2022, egg tempera on calf vellum, 12.7 x 15.2 cm). © Soheila Sokhanvari CJLPA : Second, we have Roohangiz Saminejad, known for being first Iranian star in a talkie film: Lor Girl , released in 1933.   SS : Interestingly, the film had to be made in Mumbai (Bombay, as it was back then). Filming was undertaken in 1932, when women in Iran were not yet unveiled, so it was taboo for her to appear in public without her veil. That’s why it had to be filmed in India, which at the time had a much better film industry, with the know-how and all the equipment needed. When the film was released in Iran, Saminejad was both completely embraced by the public and faced outrage from a portion of Iranians who were appalled by her appearing without a veil and dancing. She went against every single prejudice in one go: she works at a tea house, falls in love with a government agent, rides on horseback, is chased by bandits, saves her lover from the bandits—she was a heroine! In a way, the director of that film gave her power; he was unknowingly a feminist, because he was talking about the plight of Iranian women.   She received death threats, not only from the people of her village but also from her own family. Despite the threats, being a rebel, she appeared in another film called Shirin and Farhad  (1934). After that, she had to change her name and live in anonymity because she was so hounded by men. She had to have three bodyguards, one of them being her driver, because of the number of people who wanted to harm her, who found the films outrageous. She feared for her life and said she had to give up the art she loved in order to save her life. The Lor Girl (Portrait of Roohangiz Saminejad) (Soheila Sokhanvari 2022, egg tempera on parchment, 12 x 15 cm). © Soheila Sokhanvari CJLPA : There is also Zinat Moadab. What is her significance?   SS : Zinat was the first woman who appeared in a talkie that was filmed in Iran: The Storm of Life , made in 1948. Not only this, in the film she criticizes the idea of arranged marriage, which was completely unacceptable for many Iranians. Her own family did not know she was going to appear in this film, so she filmed it in secret. When her family found out, they were shocked. Her distant cousin was so outraged that he wanted to carry out an honour killing, so he came after her, although she’d never met him before in her life. He was chasing her with a gun, while she was going from family to friends to family to friends’ houses, and even went into the jungle to hide and escape her family. Rebel (Portrait of Zinat Moadab) (Soheila Sokhanvari 2021, egg tempera on calf vellum, 13.5 x 19.5 cm). © Soheila Sokhanvari This episode demonstrates the split, the chasm in Iran at the time. The Shah was educated in Switzerland and came to Iran without really understanding his people. He wanted Iran to be modernized, but I think he couldn’t understand how people were thinking, and you can’t force people to modernize, you can’t push people in that direction. The more you push people, the more they resist, the more they hold on. They kind of draw the anchor, and just sit in their own opinion, and don’t shift. Iran, in my opinion, had always been ruled by two forces. There were the Mullahs, the conservative religious people, and the Shah. These forces were constantly pulling at the Iranian people from before the revolution. Some people became atheists, or they decided to practice Islam in their own terms, and made this leap towards westernization, while others anchored down their own ideologies even more. The chasm that grew in Iran was just massive, as epitomized by this chapter in Zinat’s life. Ultimately, she married a satirist and became an editor, also doing voiceovers for films.   CJLPA : I wanted to ask also about Fereshteh Janabi, who did the first depiction of sexual pleasure on screen in Iran.   SS :   Fereshteh Janabi was an amazing actress, incredibly talented. A lot of these films, I don’t like to call them pornographic, but they were certainly erotic. Many of the actresses who appeared in these films were abandoned afterwards by directors, who just used them once and then dumped them afterward, before finding a new person. But Fereshteh appeared in a lot of these films and made lots of more mainstream movies also. They were very heavy movies, they were very metaphorical, and the subject was not light. They deal with the idea of an Islamic man who’s attracted to this beautiful young woman, and he’s enticed and fighting his desires: a very controversial topic. As part of appearing in these films, Fereshteh even portrayed the first orgasm on cinema.   The Woman in the Mirror (Portrait of Fereshteh Janabi) 2021, egg tempera on calf vellum, 13.5 x 13.3 cm). © Soheila Sokhanvari After the revolution, she was not only threatened with arrest, but even given a death sentence, so she went on the run. She died after, I think, 19 or 20 years of hiding. Living in secret on people’s sofas for 20 years takes its toll, as does the fact that she was not allowed to pursue the career that she loved. She died at the age of fifty, very young, of a drug overdose, though nobody knows if this was suicide or not. If you see her films, you can see how talented she is. She’s very natural, a very good actress, and I think she was just born at the wrong time and wrong place, because if she was in any other country she would have won an Academy Award for her acting.   CJLPA : Finally, let’s discuss Forough Farrokhzad? She also seems to have often explored themes related to female desire in her poetry and films.   SS : Forough Farrokhzad was a great modernist poet and Iran’s first female documentary filmmaker. She hailed from a military background, with her father holding a high position in the army and exerting his authority at home. Since childhood, she had a passion for poetry and literature, and her brother was also talented at writing poetry. At the age of 16, she decided to marry a man who was 30, seeking an escape from her father and her household. Despite not being in love with him, she bore him a son. However, she became attracted to another man closer to her own age, who was also a writer and filmmaker: Ebrahim Golestan. Eventually, she engaged in an affair, facing ostracization as a consequence. Let Us Believe in the Beginning of the Cold Season (Portrait of Forough Farrokhzad) (Soheila Sokhanvari 2022, egg tempera on calf vellum, 13 x 15 cm). © Soheila Sokhanvari In 1958, she published a volume of poetry titled Osyan  ( Rebellion ). In one poem, ‘Divine Rebellion’, she imagined what she would do if she were God: to ‘let the sun loose in darkness’ metaphorically expressing a desire for enlightenment and liberation. Later:   weary of divine asceticism, at midnight in Satan's bed I would seek refuge in the downward slopes of a fresh sin. I would choose at the price of the golden crown of godhood, the dark and painful pleasure of sin’s embrace.   Can you imagine writing words like that, with such a candid expression of ‘sinful’ sexual desire, as a Muslim woman in such a repressive society? Even her fellow poets found such language totally unacceptable, and used to call her a harlot, the ‘scarlet lady’.   She died at the age of 32 in a tragic car accident. Her car slid on the snowy road as she tried to avoid colliding with the school bus. Unfortunately, she lost control and hit her head against the curb, resulting in her death. Her lover, Ebrahim Golestan, rushed to the scene and carried her to the nearest clinic, which happened to be just across the road from where they lived. However, the owner of the private clinic, a woman who disliked Farrokhzad’s poetry, refused to treat her. I cannot imagine a greater and more tragic insult, to refuse to treat someone for the words they have written. She died in the arms of her lover.   Some of these stories are deeply personal to me because I admire and love these women. As an artist, I can’t imagine how I would feel if someone prevented me from creating my art. My art is what gives me purpose and drives me every day. I’m fortunate to have the freedom to express myself through my art. If I were ever banned, censored, or oppressed, I don’t know how I would cope. It’s incredible how these women found the strength and resilience to keep fighting and living despite the obstacles they faced.   CJLPA : Why do you think art, especially women’s involvement in art, posed such a threat not only to the regime and the revolution, but also to the men of the time?   SS : I think conservative ideologies are dangerous, regardless of the culture or religion they stem from. Fascism and patriarchy often go hand in hand. In Iran, many men, though of course not all, traditionally view women, their voices and desires, as inherently sinful, so oppressing them is seen as a way to maintain purity. They might feel that by suppressing women they are preventing themselves from sinning. This mentality is deeply ingrained and can lead to victim-blaming. Men are fearful, and whenever you have the rise of feminism, you have an antagonistic rise of fascism. Whenever there’s a wave of feminism, I feel like there’s equal and opposite wave of fascism and patriarchy.   Nowadays, Generation Z is currently experiencing significant stress, but they are also proving to be a remarkably open-minded and socially conscious generation. Across the globe, Generation Z is known for their environmental awareness, liberalism, and strong feminist ideals. In Iran, something unprecedented is happening: men are standing in solidarity with women in protest for the first time in history. This unity is historic and has never occurred before.   CJLPA : You mentioned earlier the death of Jina Mahsa Amini and the 2022 protests in Iran, primarily led by women. Jina’s tragic death at the hands of the morality police, after being arrested not adhering to hijab regulations, sparked widespread protests, particularly among Kurdish Iranians. The timing of these events coincided with your exhibition, which already had political undertones in its rebellious foregrounding of Iranian women’s bodies. Can you elaborate on how this period personally impacted you as an artist and influenced your activism?   SS : As an artist I’ve always been political, and I’ve always considered myself quietly activist in my own way, though never overt. When I found out about Jina’s death, I was setting up the show, the space was being prepared for the exhibition. I was completely devastated because as a mother, Jina could have been my daughter. I couldn’t imagine how a mother must feel to lose their daughter in such a senseless, brutal act of violence. Afterwards, the protests started and Internet connections in Iran were blocked, so I was left in this silence and cut off from everybody. It was very difficult.   After three years of working hard on this exhibition, I was relieved that the show was coming together and was open to the public. I felt it was as I wanted it to be. I wasn’t sure how successful it was going to be, but I said to myself, ‘I’ve done the best that I can’, and I was happy with the work. But at the same time, these protests were happening in Iran, just two weeks after the murder of Jina. So it was very timely, a bittersweet opportunity which put my work into context. It was extremely emotional. During my interviews for the radio and newspapers, I was always on the verge of tears. I have been painting the stories of Iranian women for many years and talking about the plight of women. I’ve been an activist and an ally, and all of a sudden, I was becoming the public speaker for them. I was a reluctant public speaker because I doubted my abilities in that respect, feeling like I was really not trained and did not know how to express myself. I felt like my art was supposed to speak for me, so I could be hidden behind the paintings. Being pushed out of my studio into the public space, appearing on television and radio, being in newspapers, I felt exposed, but at the same time had to take on responsibility.   CJLPA : Could you share your thoughts on Jina Mahsa Amini’s impact, considering it sparked significant protests, with women burning their hijabs and cutting their hair as symbols of resistance? If you’re comfortable, perhaps you could shed some light on her story or what her family endured, offering insights into women’s treatment and life in Iran.   SS : There has been a media blackout regarding the protesters due to audience fatigue, which is quite disheartening. Many of the victims’ families have faced pressure from the Iranian government to remain silent. They even attempted to claim that Jina suffered a heart attack and brain injuries, which her family courageously refuted. Jina, a Kurdish girl, had to adopt the Iranian name Mahsa due to the oppression of Kurdish identities in Iran. She was a courageous young woman who was arrested outside a Tehran underground station by the morality police for a perceived minor infraction related to her hijab. Three days later, she died in hospital, suspected of having been beaten by the police.   The entire population came to the streets was because everybody could relate to Jina. She could have been your daughter, she could have been your sister, she could have been your friend. And because she was so innocent, she wasn’t politically active, she was just a little girl, a young student who came to Tehran and was killed because of something as mindless as her hair showing a little bit more than it supposedly should have been. The Iranian government and morality police reacted brutally to the uprising and shot at peaceful protesters with live bullets, arresting thousands of people, with over 500 deaths. The cutting of hair relates to the fact that historically and culturally, Iranian people cut their hair before going to war. So the act was a statement of war, but also mourning and empowerment, taking autonomy of one’s body and showing an angry disregard for the repressive beauty standards of the regime.   CJLPA : Absolutely. Do you have any final words for our readers?   SS : I would just stress the importance of talking about these interlinked topics: human rights, environmental rights, animal rights, and so on. I think we should all be activists, we should all be activists in our way, and we should all be educating and enlightening our neighbour, so that the light can burn out the darkness. Yeah. As Forough Farrokhzad said, if I were God I would take the sun into the darkness. As an artist, I think that’s my responsibility, to be the sun in the darkness.   CJLPA : Many thanks indeed for your time and insights. This interview was conducted by Nancy Lura. As a final year Film and Literature student at Warwick University, Nancy combines her passion for the creative arts with a keen interest in pursuing a career in the film industry. Alongside this, she advocates for human rights and believes strongly in the transformative power of the arts in driving social progress.

  • When Is an Artwork Finished? Revisiting the Question

    When is an artwork finished?   Ann Landi, a contributing Editor of ARTnews , wrote an article that explored the question of when an artwork is finished.[1] The article shared the varied views of numerous artists. Landi pointed out that for some artists the creative process ends when the artwork is physically removed from the artist, for some it is an intuitive decision, for some an artwork is never completed, while for some the problem is not with knowing when to finish but rather in deciding when it is overdone. Some recycle elements from one project to the next and perhaps forestall the postpartum blues. This article aims to provide another perspective on the question, based on my own experiences as a visual artist.   The dynamic interrelationship between art and other social spheres   Art is, or at least could be, interrelated with other social spheres such as politics, law, the economy, social organizations, religion, culture, or technology. In this interrelationship, art is and/or could be affected by other spheres. It could also be used to respond to and/or affect other spheres.   The methods by which art is created may be affected by the availably of mediums at any given time. For example, some notable modern technologies that have added to traditional mediums (such as painting using oils, pastels, acrylics, or watercolours) include the invention of photography, motion pictures, and computer software. More recently, Artificial Intelligence (AI) is emerging as a new way by which to create art, or to facilitate the creation of art. Notably, this method also gives rise to a renewed questioning of our understanding of what art is and the role of artists. Liz Mineo explored the opinions of different Harvard faculty members involved in the production of different types of art about whether something generated by AI can still be considered art and whether they see AI as a threat, a collaborator, or a tool to further their own creativity and imagination.[2]   The subject matter of art may also be affected by external influences from other spheres, such as artworks that are commissioned to convey information about religion, politics, social status, culture, history and identity. For example, artworks created during the Renaissance were typically commissioned by religious institutions and wealthy people to glorify God, the Church, and themselves.   While art could be affected by other social spheres, it can also be used to affect other social spheres. For example, there are numerous artworks that have been used to record and react to circumstances (eg war) and issues (eg peace) in other spheres (eg politics), and/or attempt to influence the audience’s views and behaviour with regards to other spheres, eg by expressing anti-war protest. Guernica , by Pablo Picasso, is such a painting. Using visual clues to refer to the bombing of Guernica during the Spanish Civil War, Picasso deployed metaphors and symbols to communicate an anti-war message.   The practice of art also affects the law, giving rise to legal issues such as the regulation and protection of intellectual property. A notable recent legal issue involves the use of AI in creating art. Court have recently been, and are at present, considering whether art created by AI should be, and/or is, protected by copyright.[3]   Art could also affect other social practices. For example, Italian architect Filippo Brunelleschi, in the early 1400s, is credited with having developed the technique of linear perspective to create the illusion of depth and three-dimensionality on a flat surface. This technique was subsequently used by other artists in their paintings, such as works by Leonardo da Vinci and Raffaello Sanzio da Urbino. Such techniques have influenced and guided scientific advancements in fields such as astronomy and anatomy. Another example is collage art, practiced by artists such as Pablo Picasso and Georges Braque. Collage art has influenced the development of modern practices of graphic art design, as can be seen in advertisements and fashion.   In addition to visual art, other forms of art, such as music, may also have an interrelationship with other social spheres. For example, on the same topic of war and peace, there are numerous influential political songs, some of which are listed by the Capitol Theatre. The Capitol Theatre suggests that perhaps John Lennon’s most significant musical contribution to the peace movement was his song ‘Imagine’, which invites us to question our values and understanding of the world we live in, and to imagine one which is simpler and where all live in peace.[4] The Theatre opines that ‘the importance of “Imagine” will continue to live on as it should, and holds a precious place in the hearts of those who yearn for peace’.[5] Note that Lennon’s message in ‘Imagine’ is universally relevant and applicable. In contrast, some songs focus on making references to and responding to more specific historical events and their implications. For example, Buffalo Springfield’s ‘ For What It’s Worth’ reflects on the unrest that occurred in the US during the Vietnam war.[6] The lyrics of the song call on us to pay attention to protests that morph into riots, and instead to turn our hearts to peace. Notably, this distinction between universal and specific messages is also manifested in my artworks, two of which are discussed next. One of these works, which was created in 1995, is focused on responding to a particular historical event while the other, created in 2024, communicates a universally applicable message which is not confined to specific events or circumstances.   Considering that society exits in a constant state of flux (eg due to factors such as changing political circumstances), and considering as well that the artist’s objectives may also change over time (possibly in response to changed/changing conditions, or due to some other reasons such as changed/changing personal political views and objectives), artists may at some point need or want to rethink their artwork to fulfil their prior or changed objectives. This process could take any length and may happen at any point within the artist’s lifetime. Also, artists may seek to continually develop their approach to creating art, perhaps by using new mediums, and may need and/or want to rethink and redo their artwork (eg by using new technologies). With this in mind, next I will exemplify these types of possible scenarios through my own experiences. As will be explained, with respect to my artwork from 1995, as my objectives and approaches changed over time, in response to changed socio-political circumstances as well as changed technological opportunities, I revisited and modified that painting in 2024, both in its content and purpose as well as the methods by which it was created. Based on this personal experience, I will conclude by providing my insight about the question of when art can and/or should be deemed finished, if at all.   Art as an ongoing dynamic process of creation: a personal example   My changing objectives over time in response to changing circumstances   On November 4, 1995, the Israeli Prime Minister Yitzhak Rabin participated in an anti-violence rally that supported the Oslo peace process. At this rally, Rabin was assassinated by Yigal Amir, a far-right law student at Bar-Ilan University who reportedly opposed Rabin’s peace initiatives. Subsequently, in May 1996, Benjamin Netanyahu was elected Prime Minister of Israel.   In September 1996, Peace Magazine  asked whether peace was still possible.[7] One commentator, Diana Zisserman-Brodsky, asked how far PM Netanyahu would be ready to go to promote peace.[8] Another commentator, Gennady Dertkin, maintained an optimistic perspective.[9] In doing so, he referred to a painting I created (fig 1) to commemorate the tragedy of Rabin’s assassination while also trying to inspire optimism about the prospects of future peace within Israel and between Israel and its neighbours. Fig 1. A Commemoration of a Jewish Tragedy (Amir Pichhadze 1995, pastel, 32 x 40 in). Miriam Chinsky described the painting as a searing probe into Rabin’s assassination at the hands of a Jewish man—the enemy from within. As she explained,   [s]een in the aftermath of the murder, a grieving man crouches, head bowed, before Rabin’s flag-draped coffin with a broken Magen David representing unity gone awry. A portion of the flag is wrapped around the man’s legs and covers his feet. His hands are bloodied and behind him is a blood-spattered copy of Shir Lashalom (Song of Peace), which Rabin had at the moment he was killed. An obvious bullet hole is a reminder of the method of assassination.   The man is the Jewish People, torn by political and religious strife. He mourns the death, yet the infighting marks him as it does all those who cannot or will not come to peaceful terms with their differences. The song sheet is colored in reverse, white lettering on a black background to accent the darkness of the act and its consequences. But one corner, curled forward, pristine white against the sky, signifies a glimmer of hope.   She goes on to question whether this is ‘Pichhadze’s youthful optimism’.[10]   In view of my inputs on this issue in the past, while I was studying at the University of Oxford in 2020, I was asked to comment on the prospects of peace in the Middle East in light of new peace accords between Israel, the UAE, and Morocco at the time.[11] Considering the mixed reactions at the time regarding those accords, I suggested that it remained to be seen to what extent, if at all, these developments would pave the way towards comprehensive regional peace as well as the formation of new transnational and international forms of cooperation. In my conclusion, I recognized that the outcome would depend on an array of factors, and I held on to my ‘youthful optimism’ about peace.   Skipping forward to the present, regrettably my optimism has been put into question. The Middle East has been troubled by new conflicts, and there are ongoing doubts about the prospects of domestic and regional peace. This includes Israel’s conflict with some of its neighbours over the past months as well as the recent overthrow of Bashar al-Assad’s regime in Syria by Sunni opposition forces. These conflicts have also sparked unprecedented levels and forms of civil strife globally, particularly in the form of violent and non-violent protests. Hence, the call for peace is increasingly relevant globally.   Through my painting from 1995, my objective was to commemorate a particular historical event—the assassination of an Israeli Prime Minister, which was sparked by political strife—and to convey hope that that dark page in history could be brought down, the grey clouds of the moment would disperse, and the hope for peace remains. Given my ongoing use of art as a form of expression and to react to historical events and attempt to influence social and political change, I recently found myself inclined to rethink my previous objectives and composition. Rather than focusing on a specific historical event and context, and responding to it, my new objective is to identify a universal issue—the issue of conflict and peace—and to utilize my art to supplement and re-enforce a necessary socio-political message: a call for peace. My new objective assumes that, by-and-large, there exists a universal quest for peace, and that this quest could be fuelled through art.   Changes in the content of my painting My approach to communicating my message maintained my reference to and use of the lyrics of the ‘Song for Peace ’ ,[12] since its pro-peace message is universally applicable and timeless. Influenced by Anglo-American anti-war songs of the 1960s, the song departs from other songs at the time in Israel, which glorified war and created an ethos that memorialized fallen soldiers, such as the song ‘Battle of Ammunition’ which reflects on solders’ experiences during the Six-Day-War in 1967.[13] In contrast, the Song for Peace reminds that prayers will not bring back the dead. It calls on people to sing a song for love rather than war. During the peace rally on November 4, 1995, those at the podium—Miri Aloni, the groups Gevatron and Irusim, and the statesmen Shimon Peres and Yitzhak Rabin—led the crowd in singing this Song for Peace. Just after the rally ended, Yitzhak Rabin was assassinated. In his shirt pocket was found a page with the song’s lyrics, stained with his blood.   In my painting from 1995, I reproduced an image of this blood-stained page to implicitly refer to the specific historical event of Rabin’s assassination. Another implicit reference was the corner of the coffin covered by an Israeli flag. My purpose was to commemorate a particular historical event and convey my reaction to it: the hope that this dark page in Jewish history and the grey clouds suggestive of the gloom of that moment could be transcended and that peace, if sought, could be realized. In my new composition, from 2024, I maintain the page from the ‘Song for Peace’ to suggest the risk of universally undesirable consequences of conflict (political assassination, and more generally harm), and to utilize and supplement through visual drama the universal pro-peace message of the song. Yet I removed the coffin that was covered by an Israeli flag, since my intended message is that the consequences of conflict are universal. The grieving person is no longer a representation of Israeli society; rather, he represents people generally. The red hands also remain in the 2024 composition, to remind that people generally could be directly or indirectly to blame for failing to choose peace and turning to conflict. In other words, symbolically, people universally risk having blood on their hands due to their choices and actions. Fig 2. A Call for Peace (Amir Pichhadze 2024, mixed media). A notable feature of my revised painting is to give visual expression to some of the messages conveyed by the lyrics in the song, in the hope of amplifying them. For example, the lyrics warn that ‘he whose candle was snuffed out, and was buried in the dust, a bitter cry won’t wake him, won’t bring him back. Nobody will return us from the dead dark pit. Here, neither the victory cheer nor songs of praise will help’.[14] In my painting, I attempt to provide a visual expression of the gloominess of a pit surrounded by darkness and draping colours that are suggestive of drenched blood.   Also notable is my reference to the clouds. In the 1995 version, the clouds are merely grey, suggestive of temporary feelings of worry, of problems and unhappiness. Yet, in light of more recent turn out of events, which have now escalated into regional wars and civil strife around the world, I have intensified the suggestion of gloominess by making the clouds darker. The message is that, unless people intentionally turn to peace, the risks involved could be increasingly severe and prolonged. With this darker reality, the song’s call to let the sun rays penetrate and shine is, I hope, amplified. Nevertheless, to maintain optimism about the future I have kept the forward leaning fold in the Song for Peace sheet, with the opposite side of the sheet still coloured in white. War and peace are a matter of choice, and hopefully people will choose the path of peace. The objectives of peace and unity need not be mere wishful thinking, though attaining these goals would require the right courses of action. As the song of peace cautions and urges, ‘don’t say the day will come, bring the day because it is not a dream; and within all the city’s squares, cheer only peace’.[15]   Changes in medium   When I created the painting in 1995, I was primarily familiar with and had access to more traditional mediums of art. I chose to create the painting using soft pastels. In more recent years, I have become familiar with other technologies such as computer software. With these new tools, I was able to create the new composition, of 2024, using a mix of different mediums, including digital technologies. Hence, my approach to creating my art has been influenced by, and have changed, based on newly available technologies.   Conclusion   It may be that the question ‘when is an artwork finished?’ is common and of interest. However, I would suggest that it is not necessarily, and arguably should not be, a pertinent question. While some artists work towards and may struggle with the pursuit of creating a finished piece of artwork, some give priority and/or focus to the process of art creation such that part or the whole of the artwork’s subject is the making of the work. ‘Process Art’ as a movement can be seen at the Guggenheim and the Tate, whose collections include works by artists from the mid-1960s and late and 1970s in Europe and the US.[16]   Even if the artist does not explicitly construct his/her composition to reveal the process of art creation, as exemplified by artworks associated with the ‘Process Art’ movement, the artmaking process could also be revealed through a collection of works that were created over time, where such sketches (or works-in-progress) exist. For example, a current exhibition at the Walters Art Museum in the US is titled ‘Art and Process: Drawing, Paintings, and Sculptures from the 19th Century Collection’. As the Museum explains:   The typical experience for a museum visitor involves a lot of close looking, but no amount of observation can quite reveal to a viewer how an artist arrived at their final composition. So, what becomes of the numerous sketches a painter creates before they touch oils? Or the meticulous measurements a sculptor makes before a bronze is cast?   The Walters Art Museum’s extensive collection of 19th-century works on paper offers insight into painters’ and sculptors’ artistic practice. Drawings and sketches often record the choices made by an artist, however, preparatory studies often don’t survive, and those that do are rarely exhibited due to their light sensitivity. In Art and Process: Drawings, Paintings, and Sculptures from the 19th-Century Collection, visitors can experience 60 works from the museum’s permanent collection, including 30 works on paper (pastel, graphite, charcoal, and watercolour) and 23 oil paintings, as well as works in bronze, porcelain, and terracotta, reminding us that when we view an artwork in a museum, what we’re really seeing is the endpoint in a dynamic process that may have been long, and involved many twists and turns.[17]   Regardless of whether the artist’s objective is, or was, to create a finished artwork or to create art that revealed the process of creation, my intended messages are that: (i) artists can and should remain open to continually rethink and revise their artworks (and/or the process by which they create their artwork) in order to achieve their objectives, which may change over time; and (ii) artists should be capable of, and open to, utilizing changing opportunities such as the use of new technologies to create (or recreate) their art as desired or need be.   For example, my objectives in the 1995 version of my artworks were narrow: to make reference to and commemorate a particular historical event (the political assassination of the Israeli PM, which reportedly was driven by civil strife) and to express hope for a more peaceful future within that Israeli context, by suggesting that the dark page in Jewish history could be turned over by choosing peace. Yet, many years after, based on changing socio-political circumstances (the global spread of civil strife and the risks of new regional and world wars), I have come to recognize and appreciate that my call for peace is relevant globally, and therefore my composition can and should be revised to communicate a more universal call for peace. Moreover, I took the opportunity to utilize new technologies, by recreating my composition using a mix of mediums.     Such a dynamic and ongoing process of rethinking and evolution is not unique to the arts. It is also necessary for, and can be witnessed within, other social systems. For example, laws are continually rethought and, if need be, changed in order to achieve existing or new objectives, and to adjust to changing circumstances and conditions in other social spheres. As the Government of Canada explains:   Every day, we hear about social issues, medical developments, and new types of technology. All of these raise moral and legal questions. These kinds of changes mean we need to constantly reform our laws so we can make sure that our system of law and justice meets the challenges of our society.   As our society grows and develops, it cannot rely entirely on tradition. Sometimes new laws are needed or old laws need to be changed.   As people change the way they live and work, some laws may become obsolete. Or new situations may arise that no existing law deals with. For example, old laws against theft did not foresee identity theft or online harassment. The same technology that enables one person to find information about another also makes it possible to steal information that was meant to be private.   More than just changing laws, we may need to change the system of law and justice itself. For instance, in our complex society it can take years to settle disputes. As our court system is stretched to the limit, other, less formal ways may help people settle their disputes. Some informal mediation methods, such as in landlord-tenant disputes, are already being used…   Government legal experts are constantly examining our laws and looking for ways to improve them. Law reform committees also review laws and recommend changes. Lawyers bring questions of law to court to create change. Social action groups seek changes to laws that they consider unfair to members of Canadian society. Industry groups and other stakeholders meet with government decision makers in an effort to present their opinions on the direction of public policy. Legislators in the federal, provincial, and territorial governments respond by introducing new laws or changing old ones.[18]   Another example is the sphere of education. Approaches to teaching are, or at least should be, continually rethought in light of changing needs, objectives, and circumstances. In Canada, for example, the stated strategic plan of Osgoode Hall Law School for 2021-2025 aims to develop engaged legal education ‘through dynamic curriculum development that responds to current and potential future social challenges’. In pursuit of this aim, Osgoode Hall has undertaken the initiative to ‘evaluate the current array of experiential learning programs, including identifying opportunities for new programs where there are gaps’.[19]   In conclusion, I suggest that artists could/should be open to continually rethink and change their artworks and/or their artmaking process as need be, as desired, and/or as it becomes possible under different circumstances and conditions. The question of when an artwork is finished need not be, and arguably should not be, treated as pertinent. Arguably, a pertinent question is whether the artist has finished. So long as he/she is able, willing and wanting to further rethink and redevelop his/her artwork, he/she should be able and encouraged to do so. The creation of art can, and arguably should, be accepted and approached as an ongoing process. Amir Pichhadze Dr. Amir Pichhadze is a Renaissance man. Driven by his varying interests and utilizing his mixed talents, skills, and diverse knowledge, Amir’s activities have been impactful in a range of spheres. His activities have included creating visual art, working as an art dealer, lecturing and teaching at universities and conferences worldwide, conducting and publishing academic research on a range of subjects, providing policy advice to government agencies, editing law journals, providing peer-reviews of journal submissions, working as treasurer, conducting philanthropic projects, among other things. Under the guidance of and in collaboration with his father, the master artist Jacob Pichhadze, Amir has been creating visual art using a range of mediums, styles and techniques, and explores different subject matters. At York University, where Amir studied Visual Arts, Professor Ken Carpenter, the former Visual Arts Department Chair and President of the Canadian Section of the International Association of Art Critics  (AICA Canada), commented that 'in the history of the Visual Arts Department we have not previously had an occasion like this where a student has shown the particular kind of ability that Amir has shown. We are very proud of Amir!' ( Canadian Jewish News , April 23, 1998). [1] Ann Landi, ‘When Is an Artwork Finished?‘ ( ARTnews , 24 February 2014) < https://www.artnews.com/art-news/news/when-is-an-artwork-finished-2383 > accessed 10 December 2024. [2] Liz Mineo, ‘If it wasn’t created by a human artist, is it still art?’ ( The Harvard Gazette , 15 August 2023) < https://news.harvard.edu/gazette/story/2023/08/is-art-generated-by-artificial-intelligence-real-art/ > accessed 10 December 2024. [3] See Maya Medeiros, David Yi, and Imran Ahmad, ‘Can AI be an author? Federal Court asked to decide in new copyright case’ ( Norton Rose Fulbright , 6 August 2024) < https://www.nortonrosefulbright.com/en/knowledge/publications/ad12aba2/can-ai-be-an-author-federal-court-asked-to-decide-in-new-copyright-case > accessed 10 December 2024. [4] See ‘John Lennon - Imagine (1971)’ ( YouTube , 26 December 2009) < https://www.youtube.com/watch?v=b6rBQ_hBpxc > accessed 16 December 2024. [5] ‘International Day of Peace: 20 Songs About Peace’ ( Capitol Theater ) < https://www.thecapitoltheatre.com/blog/detail/international-day-of-peace-20-songs-about-peace >  accessed 10 December 2024. [6] See ‘Buffalo Springfield - For What It’s Worth - Lyrics’ ( YouTube , 5 July 2011) < https://www.youtube.com/watch?v=JRV5LoOMyBk > accessed 16 December 2024. [7] See ‘Israel: Is Peace Still Possible? Or have the Death of Rabin and the Election of Netanyahu Changed Everything?’ ( Peace Magazine , Sep/Oct 1996) 23 < https://www.linkedin.com/pulse/article-peace-magazine-septoct-1996-dr-amir-pichhadze/ > accessed 10 December 2024. [8] Diana Zisserman-Brodsky, ‘Modest Charm Of Nationalism: The End Of The Fair Epoch’ ( Peace Magazine , Sep/Oct 1996) < https://peacemagazine.org/archive/volno.php?q=v12n5p23 > accessed 10 December 2024. [9] Gennady Dertkin, ‘Let the Sun Rise’ ( Peace Magazine , Sep/Oct 1996) < https://peacemagazine.org/archive/v12n5p24.htm > accessed 10 December 2024. [10] Miriam Chinsky, ‘Young artist tackles contemporary issue’ The Canadian Jewish News (Toronto, 11 July 1996) < https://amirpichhadze.com/wp-content/uploads/2021/03/Amir_Pichhadze_CJA_Jul-11-1996_ENG.pdf > accessed 10 December 2024. [11] See Amir Pichhadze, ‘The path towards peace in the Middle East’ ( The Oxford Student , 21 October 2020) < https://www.oxfordstudent.com/2020/10/21/the-path-towards-peace-in-the-middle-east/ > accessed 10 December 2024. [12] See ‘Shir LaShalom (Song of Peace)’ ( YouTube , 13 March 2012) < https://www.youtube.com/watch?v=R9kzWyGNl6A > accessed 14 December 2024. [13] See ‘Battle Of Ammunition Hill Israeli Six-Day-War Song’ ( YouTube , 9 October 2023) < https://www.youtube.com/watch?v=Dv0bIKeD5BY > accessed 16 December 2024. [14] See ‘The Song for Peace’ ( gov.il ) < https://www.gov.il/en/pages/the-song-for-peace > accessed 10 December 2024. [15] ibid. [16] See ‘Process Art’ ( Guggenheim ) < https://www.guggenheim.org/artwork/movement/process-art > accessed 14 December 2024; ‘Process Art’ ( Tate ) < https://www.guggenheim.org/artwork/movement/process-art > accessed 14 December 2024. [17] ‘Art and Process: Drawings, Paintings, and Sculptures from the 19th-Century Collection’ ( The Walters Art Museum ) < https://thewalters.org/exhibitions/art-process/ > accessed 10 December 2024. [18] ‘Keeping the law up to date’ ( Government of Canada ) < https://www.justice.gc.ca/eng/csj-sjc/just/04.html > accessed 10 December 2024. [19] ‘Strategic Plan 2021–2025’ ( Osgoode Hall Law School ) < https://www.osgoode.yorku.ca/wp-content/uploads/2021/04/2021-2025_Strategic-Plan_FINAL.pdf > accessed 10 December 2024.

  • Jonathan Sumption's Conceptual Gaps and Misconceptions on Historical Apologies and Judicial Diversity

    I. Introduction Jonathan Sumption—once described by The Guardian  as ‘the brain of Britain’—is a professional historian and former Justice of the Supreme Court of the United Kingdom. [1]  He has published ten books, among them Pilgrimage: An Image of Medieval Religion  (1975), The Albigensian Crusade  (1978), Equality  (1979), five volumes on the Hundred Years War, and Trials of the State: Law and the Decline of Politics  (2019). As a Supreme Court Justice, he delivered the leading judgment in important cases in several areas, including, in the realm of commercial law, Prest v Petrodel Resources Ltd ,[2]  Kelly v Fraser ,[3]  Bilta (UK) Ltd v Nazir (No 2) ,[4] and Bunge SA v Nidera BV .[5] His dissents have also been prominent—notably in Patel v Mirza [6] on illegal contracts. Moreover, Sumption’s judicial production during his tenure at the Supreme Court has been the subject of academic scholarship.[7]  With a following in various Commonwealth countries, his intellectual influence transcends the British Isles. This is apparent from the success of his most recent book, Law in a Time of Crisis ,[8] which sold out in New Zealand, as did a public lecture he gave at the invitation of one of the country’s leading commercial law firms in 2023.   The book, however, is uneven: in some chapters, its insight enriches,[9] while in others—notably where it explores topical issues—its analysis suffers from important gaps. In particular, Sumption is not persuasive in his discussion of historical apologies and judicial diversity. His reasoning in relation to the former rests on defective legal and historical analyses that either entirely omit, or else do not engage adequately with, relevant considerations. His chapter on judicial diversity, for its part, distorts the arguments it grapples with in its favour, seems to ignore the richness of the notion of ‘identity’, and does not take on the (positive) experience of international courts and tribunals where diversity is mandatory. In this article, I use not just law and political science but also literature to challenge several of the factual bases of some of Sumption’s legal or historical contentions, and to bring a more human dimension to the discussion.   II. On apologising for history   Sumption’s analysis of apologies for historical wrongs contains legal gaps, omits relevant historical facts, and fails to address key dimensions. To begin with, he regards historical apologies as pointless where the perpetrators or their victims are long dead—considering them to be an expression of seeing ‘the past in terms of the present’,[10] and adding that ‘apologising for the past is […] a historical anachronism’. [11] Sumption questions Tony Blair’s apology to Ireland for the Potato Famine. He asserts that the apology ‘seeks to engage [his] moral responsibility’ but that, although he is a descendant of nineteenth-century English people, he ‘did not do it’.[12] He also discusses an apology by Pope John Paul II in 2000 for the Christian wars and persecution in the Middle Ages. With approval, he references a bishop who queried in whose name the Pope was asking for forgiveness.[13] He concludes:   History is morally neutral. We have a duty to understand why things happened as they did, but apologising for them or trying to efface them is morally worthless […]. Once the relevant actors have left the scene, there is no longer a live moral issue, no longer a perpetrator to be contrite or a victim to forgive. For those left behind, there are only lessons to be learned.[14]   The issue of historical apologies can, however, be approached from a different angle. Underlying Sumption’s opposition lies a clear separation between the distant past and the present. Literature offers another perspective, one that challenges such a simplistic separation. Jorge Luis Borges reminds us—and this of course would not come as a revelation for Sumption—that the past can also be part of the present and of the future.[15] Indeed, historical apologies are situated in a present-day political context that is relevant to any assessment of them. This is readily identifiable in the Pope’s 2000 apology. In his words:   Christians have at times given in to intolerance and have not been faithful to the great commandment of love, sullying in their way the face of the church.[16] The Pope was using the apology to send an unequivocal message of tolerance to the Catholics of the day. Blair’s apology had perhaps more profound consequences for the present, having been issued to forge a path for the future: the negotiations that led to the Good Friday Agreements. [17]    Equally fundamentally, Sumption’s argument that historical apologies are morally and philosophically irrelevant fails to take into account the possibility that recipients might not consider the apologies to be as insignificant as he does. Sumption omits to mention, for instance, that Ireland regarded the apology as a significant event, not a moral or philosophical anachronism. Its Prime Minister expressed that ‘while the statement confronts the past honestly, it does so in a way that heals for the future’.[18]   Sumption does not address another key dimension with potential legal consequences: historical apologies, such as those of the Pope and Blair, are unilateral declarations made by heads of State or heads of government, and they seek to have international effects of various kinds. They may or may not contain international obligations, depending on their content and the surrounding circumstances—as the International Law Commission has expressed,[19] and as the International Court of Justice (ICJ) stated in Nuclear Tests Case (New Zealand v France). [20]   Other important considerations applicable to apologies were highlighted by the ICJ in Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) ,   where it expressed the view that:   [A]mong the legal effects which such declarations may have is that they may be regarded as evidence of the truth of facts, as evidence that such facts are attributable to the States the authorities of which are the authors of these declarations and, to a lesser extent, as evidence for the legal qualification of these facts.[21]   Historical apologies are acts of State. By reducing them to leaders’ personal words on behalf of existing individuals, Sumption overlooks a significant dimension of this form of State action.   There is one circumstance militating against apologies that could in principle be open to discussion: when the apology is requested from a State that did not actually exist at the time of the events. In this context, Sumption mentions as futile the request to Turkey to apologise for the Armenian genocide by the Ottoman Empire.[22] Before concluding that an apology by Turkey is irrelevant, however, Sumption should have engaged with the international law concept of State continuity.[23] A rigorous analysis should show why, legally, Turkey is not the continuing legal personality of the Ottoman Empire and therefore does not have to offer any apology. Moreover, Sumption omits to mention material historical facts, such as the fact that many States refused to recognise Turkey’s claim to be a new State in 1923 in order to avoid payment of the Empire’s debts,[24] and furthermore that an arbitration tribunal in Affaire de la dette publique ottoman  rendered an award in 1948 concluding that Turkey had continued the legal personality of the Empire.[25] Sumption should have engaged with these acts and decisions in order to properly prove his point that the example of the Armenian genocide supports his critique of apologies.[26] As it is, his argument is incomplete.[27]    On the request for apologies for slavery, Sumption states:   [t]he suggestion is that the apology is due to the dispersed descendants of the original slaves who are alive today. It is not obvious what injury has been done to them. Many of them enjoy better lives in the countries to which their ancestors were forcibly deported than they would have enjoyed if their families had remained in sub-Saharan Africa.[28]   This last argument can be challenged with the aid of literature and history. First, the benefits of slavery are still enjoyed by the descendants of slaveowners, such that historical domination and subjugation continue to influence contemporary relationships and identity. The legacy of slavery and the need for apologies therefore remains extant.[29] Second, the claim that the descendants of enslaved people enjoy better lives than the inhabitants of Sub-Saharan Africa is trite. A similar argument was made over a century ago to attempt to defend slavery. In a letter sent to the American publication The Atlantic  in 1901, a reader stated that slavery had lifted ‘the Southern negro to a plane of civilization never before attained by any large body of his race’.[30] The argument was wrong then just as it is today. Third, the comparator to assess the negative impact of slavery should not be the standard of living in the African region, but that of fellow citizens. In ‘ Letter from a Birmingham Jail’, Martin Luther King contrasted the quality of life of the African American population with that of the other Americans to decry:   We have waited for more than 340 years for our constitutional and God given rights. [...] [P]erhaps it is easy for those who have never felt the stinging darts of segregation to say, ‘Wait’. But when […] you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; […] when you are forever fighting a degenerating sense of ‘nobodiness’—then you will understand why we find it difficult to wait.[31]   Sumption shuts his eyes to the reality of many descendants of enslaved people. He proposes a regression in how we reckon with history. Granted, slavery ended, but Sumption fails to recognise the subsequent segregation or apartheid, the discrimination replacing slavery until today in many countries, the United Kingdom included.[32] Although Sumption states that he is aware of the Black Lives Matter movement,[33] his arguments betray his disconnection with the reality on race. In sum, Sumption’s views on apologies are based on incomplete legal and historical analyses in which important dimensions are not explored in depth or are simply neglected. Literature reveals not only his blinkered reasoning, but also its wilful blindness.   III. Sumption on judicial diversity   Sumption tackles judicial diversity in British courts based on his five-year experience as a member of the United Kingdom’s Judicial Appointments Commission. He is in favour of more diversity,[34] but finds that the speed of progress is not fast enough. The only way to increase diversity is, he maintains, through positive discrimination. But he is against the latter nonetheless.[35] And under Sumption’s own proposals, meaningful change be witnessed only after decades.   This discussion will explore some of the misconceptions that lead Sumption to conclude that progress in judicial diversity should be left to come about naturally. To begin with, Sumption seems to distort the argument in favour of judicial diversity by contending that those in favour of it expect all minority groups to be represented on the bench. He states:   [I]f personal experience of belonging to a relevant group is desirable, there will be many relevant groups apart from women and ethnic minorities who are entitled to be represented […] Should we distinguish between ethnic minorities according to whether they are of Caribbean, African, Indian or Chinese origin, or between Christian, Muslim and Hindu, all categories with a unique quality of personal experience? […] How far can we go in this direction without undermining the objectivity of the judge, which necessarily depends on certain personal distance from the facts?[36]   The goal of judicial diversity is, however, not to ensure that every minority group will be represented on the bench. This argument is a red herring which, by leading Sumption to portray the goal as unattainable, acts in effect as a tacit call for letting the status quo run its slow course. A true call for diversity is, on the contrary, a call for allowing more minority groups to be represented at a particular time within the judiciary. Once the distortion is brought to light, Sumption’s critique loses its value.   As seen in the above quote, Sumption also challenges judicial diversity on the grounds that judges belonging to minority groups might be unable to distance themselves from plaintiffs or defendants who belong to the same group. Underlying this view is the supposition that members of the same minority groups have only one homogenous life experience and are wholly defined by their belonging to this group. On this point, the Nobel-winning work of Amartya Sen on identity is pertinent:   In our normal lives, we see ourselves as members of a variety of groups-we belong to all of them. A person’s citizenship, residence, geographic origin, gender, class, politics, profession, employment, food habits, sports interests, tastes in music, social commitments, etc., make us members of a variety of groups, to all of which this person simultaneously belongs, gives her a particular identity. None of them can be taken to be the person’s only identity.[37]   Members of social groups have overlapping identities that cut across any single group. Consequently, a judge and an individual before a given court may be part of the same social group but have different identities. For this reason, among others, nobody, and surely not Sumption, questions that white male judges can be objective by virtue of being distanced from the facts in cases related to other white men. Exactly the same happens when it comes to judges from minority groups, and one certainly would expect a former member of a Committee tasked with the goal of increasing judicial diversity to grasp the complexity of identity as a category.   Allegedly, recent empirical scholarship on this topic concerning individual judges appears to support Sumption’s views. Epstein and Knight state that:   research that characterizes individual judges on the basis of their social identity (gender, race, nationality, and so on) tends to generate results in line with in-group bias: the tendency of individuals to favour members of their own group over outsiders.[38]   However, Epstein and Knight acknowledge that this empirical research still lacks the sophistication to conceptualise the judges’ several identities that Sen and others rightly highlight. So far, this research isolates the effects of a specific identity, and Epstein and Knight point out that ‘[r]ecognizing that individual judges are, like all of us, bundles of identities—identities that intersect and overlap—is crucial to advance work in the field’.[39] The research thus has significant conceptual limitations and does not challenge Sen’s perspective.   Sumption objects to the ‘notion that a diverse court produces a higher quality of justice’.[40] He questions the former Canadian Chief Justice, Beverly McLachlin, who, on the benefits of gender diversity for collegial courts, has expressed the following:   Jurists are human beings and, as such, are informed and influenced by their backgrounds, communities and experiences. For cultural, biological, social and historic reasons, women do have different experiences than men. In this respect women can make a unique contribution to the deliberations of our courts. Women are capable of infusing the law with the unique reality of their life.[41]   Sumption argues that this statement attaches an exaggerated value to personal experiences and that vicarious experience may be enough.[42] In doing so, he dismisses the relevance of the so-called diversity bonus in collective decision-making. According to Epstein and Knight:     [S]ocial diversity leads to better decisions as people bring different perspectives to bear on the problem at hand; in other words, the more diverse the inputs, the stronger the outputs.[43]   Although Sumption is discussing judicial diversity in British collegial courts, notably he criticises McLachlin without even considering those courts in which positive discrimination is mandatory and whether the experience of those courts buttresses or contradicts his views. Which are these judicial bodies with mandatory diversity? International courts.   Granted, there are important institutional differences between international and domestic courts, but the differences lose their significance given that Sumption discusses the quality of justice in collegial courts generally. A consideration of international courts in terms of how their diversity has enhanced the quality of their jurisprudence and legitimacy, then, is relevant. Article 9 of the Statute of the ICJ requires that its judges represent the ‘main forms of civilization and the principal legal systems of the world’; Article 17.3 of the World Trade Organization’s Understanding on Rules and Procedures Governing the Settlement of Disputes mandates that ‘ [t]he Appellate Body membership shall be broadly representative of membership in the WTO’; Article 36(8)(a) of the Rome Statute, which goes even further, mandates the composition of the International Criminal Court (ICC) not only in terms of diversity of origin and the representation of the principal legal systems of the world, but also in terms of gender.   Evidence suggests that the ‘diversity bonus’ enhances the quality of the justice delivered by international courts and tribunals. It allows them, to use VS Naipaul’s words, to truly grasp ‘t he lucid, three-dimensional view of the world and its possibilities’ as they relate to the dispute at hand.[44] Indeed, Liliana Obregon shows that non-European or American judges at the ICJ have been a periodic source of challenge to traditional views of international law, thereby enriching the quality of the debate within and outside of the Court on critical issues.[45] From a more general perspective, Hodson illustrates how enhanced gender diversity—through the appointment of more female judges in international courts and tribunals—has brought about important new developments in international criminal law concerning rape and sexual violence and in human rights.[46]   Of course, even a diverse collegial court can make serious mistakes. The ICJ made a major error in South West Africa ( Ethiopia v. South Africa ; Liberia v. South Africa ), Second Phase,[47] when it rejected, for lack of standing, Ethiopia and Liberia’s application against South Africa in relation to the apartheid system put in place in South West Africa.[48] However, adjustments were made, and the quality of the justice delivered by the ICJ is exemplified by its use by applicants from all continents. The ICC was criticised in recent years for concentrating too much on Africa, but this is no longer a valid criticism with the opening of preliminary investigations or full investigations elsewhere.[49] There have been problems within the ICC caused by a low level of collegiality . [50] However, the cause has not been linked to the diversity of the composition. Finally, before becoming inactive, for reasons widely known,[51] the WTO Appellate Body was a significant success in terms of adjudication of complex trade disputes.[52] The Appellate Body is in crisis today, but not for reasons related to its diverse composition.[53]   The relevant point, for the purpose of Sumption’s argument, is that diversity in terms of origin and gender within international courts and tribunals has improved the quality of the justice delivered, and that the failures or shortcomings have never been attributed to their heterogenous composition. Moreover, diversity is one of the sources of the legitimacy of international courts, and when it has been scarce in international adjudication systems, it has been an important source of criticism. Indeed, although international investment agreements and investor-state arbitration are in a process of reassessment for a variety of structural reasons,[54] an additional source of contention is the lack of diversity of the pool of arbitrators available to be appointed by parties.[55] Of course, the proposition that diverse collegial courts do not produce a better justice, or that they reduce its quality, can still be made. However, if it is to be persuasive, it should address the challenge posed by the positive experience of international courts and tribunals where diversity is mandatory. This is a significant gap in Sumption’s argument.   In sum, Sumption’s analysis on judicial diversity is sometimes based on a mischaracterisation of the extent to which diversity can be pursued; it ignores the fact that more diversity does not compromise the impartiality of judges; and it fails to notice that diverse collegial courts, at least in the experience of international courts and tribunals, have enhanced the quality of the justice delivered.   IV. Conclusion   When seen in light of international law, Sumption’s Law in a Time of Crisis falls short. He deals, among other things, with two very topical issues: apologies for historical wrongs, and judicial diversity. The two may be connected sometimes: there is a need to recognise, through apologies, the harm and marginalisation that has suffered by some segments of society, and that one of the instruments to redress it is the recognition of the contribution that these segments can make to their societies—including through judicial diversity. Sumption does not truly embrace both, and his views no longer reflect the directions in which the United Kingdom and other societies are moving. New arguments and experiences have materialised showing the merits of these new directions, and Sumption does not fully address them in his book. From a practical perspective, it can be said that debates on historical apologies and judicial diversity in other jurisdictions—ones in which his views are tacitly relied upon—should be made aware of the limitations of this kind of analysis. Issuing historical apologies and the promotion of diversity in the judiciary are realities not to be feared, but embraced, in multicultural societies still coping with the remnants of colonisation. Alberto Alvarez-Jimenez Alberto Alvarez-Jimenez is a Colombian and Canadian national based in Aotearoa New Zealand. He holds a PhD from Ottawa, an LL.M from McGill and an LL.B from the Universidad de la Sabana. Currently he is a senior lecturer at Te Piringa Faculty of Law at the University of Waikato. His areas of research are international economic law, public international law, and international humanitarian law. He also explores the intersections between international law and art. His scholarship has appeared in leading law journals in North America and Europe. The author wishes to thank Leticia Alvarez and the editors of The Cambridge Journal of Law, Politics, and Art for their comments to early drafts. The usual disclaimer applies. [1] Wendell Steavenson, ‘Jonathan Sumption: the brain of Britain’ The Guardian  (London, 6 August 2015) < https://www.theguardian.com/law/2015/aug/06/jonathan-sumption-brain-of-britain > accessed 16 August 2023 (Sumption received significant attention during the COVID-19 pandemic because of his opposition to the UK government’s lockdowns, a topic I do not explore here.) [2]  [2013] UKSC 34, [2013] 2. [3]  [2012] UKPC 25 [15], [2013] 1 AC 450. [4]  [2015] UKSC 23, [2016] AC 1. [5]  [2015] UKSC 43, [2015] 3 All ER 1082. [6]  [2016] UKSC 42, [2017] AC 467. [7] See e.g. James Lee, ‘The Judicial Individuality of Lord Sumption’ (2017) 40(2) University of New South Wales Law Journal 862; Patrick Birkinshaw, ‘Jonathan Sumption, Trials of the State: Law and the Decline of Politics ’ (2020) 1(3) Amicus Curiae 459. [8] Jonathan Sumption, Law in a Time of Crisis  (Profile Books 2021). See also Jonathan Sumption, ‘Law in a Time of Crisis’ (2021) 1 CJLPA 77-9. [9] Two topics stand out: Sumption’s analysis in ‘Arcana Imperii: State Secrets through the Ages’, which discusses the confidentiality of State documents; and ‘The Historian as a Judge’, wherein Sumption recommends that lawyers enlarge their intellectual horizons. [10] Sumption (n 8) 15. [11] ibid 17-8. [12] ibid 19. [13] ibid 18. [14] ibid 25. [15] In his short story, ‘There are More Things’, Borges writes: ‘Over and over I told myself that time – that infinite web of yesterday, today, the future, forever, never – is the only true enigma’. Jorge Luis Borges, El Libro de Arena  (Emecé Editores 1975) 43. Translation by Leticia Alvarez. [16] Alessandra Stanley, ‘Pope Asks Forgiveness for Errors Of the Church Over 2,000 Years’ New York Times (New York, 13 May 2000) < https://www.nytimes.com/2000/03/13/world/pope-asks-forgiveness-for-errors-of-the-church-over-2000-years.html#:~:text=He%20said%2C%20''We%20are > accessed 16 August 2023. [17] See Jason Edwards and Amber Luckie, ‘British Prime Minister Tony Blair’s Irish Potato Famine Apology’ (2014) 5(1) Journal of Conflictology 43, 48. [18] ibid 47. [19] See Guiding Principle No. 7 in International Law Commission, ‘Guiding Principles applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, with Commentaries Thereto’ ( United Nations , 2006) < https://legal.un.org/ilc/texts/instruments/english/commentaries/9_9_2006.pdf > accessed 19 August 2023. [20] See International Court of Justice, Nuclear Tests Case (New Zealand v Francia), Judgment of 20 December 1974   ICJ Reports 1974 [46]-[47]. [21] International Court of Justice, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America Merits, Judgment of 27 June 1986, ICJ Reports 1986 [71]. [22] Sumption (n 8) 20. [23] See Andreas Zimmermann, ‘The International Court of Justice and State Succession to Treaties: Avoiding Principled Answers to Questions of Principle’ in Christian J Tams and James Sloan (eds), The Development of International Law by the International Court of Justice  (Oxford University Press 2013) 53. [24] See Patrick Dumberry, ‘The Consequences of Turkey Being the “Continuing’ State of the Ottoman Empire” in Terms of International Responsibility for International Wrongful Acts’   (2014) 14 International Criminal Law Review 261, 267. [25] ibid 268. [26] If the conclusion were that there would be continuity, then an apology, as a form of satisfaction, would be entirely possible pursuant to Article 37 of the International Law Commission’s Articles on State Responsibility for Wrongful Acts. [27] It is also incomplete in another sense that Sumption did not identify: not all Armenians may be interested in an apology from Turkey. In Elif Shafak’s novel The Bastard of Istanbul , the Armenian diaspora in the United States is a prominent theme, and an Armenian Turk character asserts: ‘[I] was born and raised in Istanbul. My family history in this city goes back at least five hundred years. Armenian Istanbulites belong to Istanbul, just like the Turkish, Kurdish, Greek, and Jewish Istanbulites do. We have first managed and then badly failed to live together. We cannot fail again’ (Elif Shafak, The Bastard of Istanbul  (Viking 2007) 254). One can infer from this fictional text that some Turkish Armenians may not need an apology. To apologise would not be anachronism for them; it would just be unnecessary. [28] Sumption (n 8) 19. [29] In Chimamanda Ngozi Adichie’s Americanah , the protagonist, a Nigerian woman living in the United States, says: ‘If the ‘slavery was so long ago’ thing comes up, have your white friends said that lots of white folks are still inheriting money that their families made a hundred years ago. So if that legacy lives, why not the legacy of slavery?’ (Chimamanda Ngozi Adichie, Americanah  (Anchor 2014) 449). [30] Yoni Appelbaum, ‘ The Atlantic and Reconstruction. What we got Wrong in 1901’ ( The Atlantic , 13 November 2023) < https://www.theatlantic.com/magazine/archive/2023/12/journalism-reconstruction-coverage-web-du-bois/675806/ > accessed 16 August 2023. [31] See Martin Luther King, ‘ Letter from a Birmingham Jail’ (16 April 1963)  < https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html > accessed 1 August 2023. [32] On discrimination in the United Kingdom against Black people, and for readers unfamiliar with British society, see Andrea Levy, Small Island (Headline Review 2004) 435. [33] Sumption (n 8) 25. [34] ibid 103. [35] ibid 122. [36] ibid 120. [37] Amartya Sen, Identity and Violence: The Illusion of Destiny (Penguin 2006) 5. [38] See Lee Epstein and Jack Knight, ‘How Social identity and Social Diversity Affect Judging (2022) 35(4) Leiden Journal of International Law 897, 899. [39] ibid 906. [40] Sumption (n 8) 120. [41] ibid 118. [42] ibid. [43] Epstein and Knight (n 38) 907. [44]  VS Naipaul,  The Loss of El Dorado. A History  (André Deutsch 1969) 32. [45] See Liliana Obregon, ‘The Third World Judges: Neutrality, Bias or Activism at the PCIJ and the ICJ?’ in William A. Schabas and Murphy Shannonbrooke (eds), Research Handbook on International Courts and Tribunals  (Edward Elgar Publishing, 2017) 200. [46] See Loveday Hodson, ‘Gender and the International Judge: Towards a Transformative Equality Approach’ (2022) 35(4) Leiden Journal of International Law 913, 922-926. This is not to deny that, although the compositions of many international courts and tribunals are diverse in terms of origin, they still lack gender balance and are clearly dominated by men— see Hodson at 914-16. Moreover, Hodson argues that women still face resistance in some quarters to be nominated for available vacancies in international courts and tribunals and, when appointed, face institutional constraints—see Hodson at 927. [47] See International Court of Justice, South West Africa ( Ethiopia v. South Africa; Liberia v. South Africa ), Second Phase, ICJ Reports (1966). [48] The implications of this decision were severe: a sharp reduction in cases early in the 1970s and a push for the creation of the International Tribunal for the Law of the Sea, as an alternative to the ICJ. Even the ICJ responded by changing the Rules of the Court. See Robert Jennings, Rosalyn Higgins, and Peter Tomka, ‘General Introduction’   in Andreas Zimmermann, Christian J Tams, Karin Oellers-Frahm, and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary  (Oxford University Press, 2019) [76]-[78]; [82]-[83]. [49] See International Criminal Court, ‘Situations and Cases’ < https://www.icc-cpi.int/ > accessed 5 August 2023. [50] See Independent Expert Review of the International Criminal Court and the Rome Statute System, ‘Final Report 30 September 2020’, [462]-[473] < https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP19/IER-Final-Report-ENG.pdf > accessed 19 August 2023. [51] The Appellate Body became inoperative because the United States decided to block the appointment of new Appellate Body members, which prevents consensus. See ‘Farewell speech of Appellate Body member Thomas R. Graham’ ( World Trade Organization , 5 March 2020) < https://www.wto.org/english/tratop_e/dispu_e/farwellspeechtgaham_e.htm#:~:text=The%20Appellate%20Body%2C%20as%20we,it%20is%20better%20this%20way.&text=economies%2C%20such%20as%20China > accessed 15 August 2023. [52] See Alberto Alvarez-Jimenez, ‘A Perfect Model for International Adjudication? Collegial Decision-Making in the WTO Appellate Body’   (2009) 12(2) Journal of International Economic Law 289. [53] See for example Robert Howse, ‘The World Trade Organization 20 Years On: Global Governance by Judiciary’ (2016) 27(1) European Journal of International Law 9, 30-75; and Robert Howse and Joanna Langille, ‘Continuity and Change in the World Trade Organization: Pluralism Past, Present, and Future’   (2023) 117(1) American Journal of International Law 1, 31-35. Several WTO members have agreed on an alternative system to hear appeals to panel reports: the Multi-party Interim Appeal Arbitration Arrangement. The system has ten arbitrators of diverse origins and gender, as expected. See Daniel Hohnstein and Greg Tereposky, ‘ Pool of Ten Appeal Arbitrators Established for the WTO Multi-Party Interim Appeal Arbitration Arrangement (MPIA)’ ( Lexology , 3 August 2020) < https://www.lexology.com/library/detail.aspx?g=5d84b477-ba5c-4e0e-be25-0e291883b6d3 > accessed 13 August 2023. [54] See Jane Kelsey and Kinda Mohamedieh, ‘UNCITRAL Fiddles while Countries Burn’ ( Friedrich Ebert Stiftung , September 2021) 5-7 < https://library.fes.de/pdf-files/bueros/genf/18297.pdf > accessed 13 August 2023; George Kahale, ‘The Inaugural Brooking Lecture on International Business Law: ‘ISDS’: The Wild, Wild West of International Practice’ (2018) 44(1) Brooking Journal of International Law; Gus Van Harten, The Trouble with Foreign Investor Protection  (Oxford University Press 2020). [55] See John R Crook, ‘Dual Hats and Arbitrator Diversity: Goals in Tension’ (2019) 113 AJIL Unbound 284.

  • The Human Agenda: A word from the Editor-in-Chief

    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 . The Sleep of Reason Produces Monsters (Francisco Goya y Lucientes 1799, etching and aquatint, 30.48 x 20.32 cm). © Paul Rodman Mabury Trust Fund

  • Migrants in Tunisia—When Sovereignty Triumphs over Dignity

    Preamble   ‘Tunisia will remain a state that will fight for the oppressed (or stand with the oppressed) and prevail for the victims of any kind of racial discrimination and does not accept that there be a victim of any form of discrimination against human beings, either in Tunisia or anywhere in the world’.[1] Statement by the Presidency of the Republic, 5 March 2023   A picture of the mother ‘Fatie’ and her daughter ‘Marie’, dead on the Tunisian-Libyan border went viral on social media.[2] Their fate, however, was an expected outcome of the hatred campaign against migrants (re)ignited by the infamous speech of the Tunisian president Kais Saied in February 2023. Saied, who rose to power in 2019 from outside the political sphere, took advantage of popular anger, frustrations, and rupture with the post-uprising political elites and became president with a large lead over his rival.   ‘What has happened in Tunisia is a real revolution using the tools of legitimacy’.[3] In his inaugural speech of 23 October 2019, this is how Saied described the ‘new revolution’ for which he was responsible. Less than two years later, Saied would enact another revolution: the self-coup of 25 July 2021. He activated the state of exception, dismissed the Chief of Government, and froze the then-newly elected parliament. These early measures were but the tip of the iceberg in Saied’s political project.   The project unfolded quickly as a unilateral political course based on hostility towards and stigmatization of political and civil elites, inciting the ‘masses’ against these groups and institutions. President Saied presented himself as the saviour of the people, committed to protecting them from political parties, the corrupt, and the conspirators. In August 2022, Saied enforced the adoption of a new Constitution which he himself had written. A few months later, in February 2023, he designated himself as the people’s protector from the imminent dangers of migrants’ presence in Tunisia and consequent threats of socio-demographic engineering, arguing that such a presence should be understood in the context of a conspiracy instilled at the beginning of the century by ‘evil forces’.   The February speech was an obvious green light from the head of the state to address migration as part of his populist project. It marked the start of new, more violent, and unprecedentedly blunt violations against Sub-Saharan refugees, asylum seekers, students, migrant workers, and their families: verbal and physical assaults, evictions from homes, bans on movement, expulsions to borders, random stops, and other forms of digital and invisible violence against migrants and even black Tunisians. An atmosphere of terror prevailed among migrants. Sub-Saharan African countries were forced to evacuate their citizens from Tunisia, while others remained stuck, unable to return to their conflict-torn countries or to stay in Tunisia in such an agitated landscape. The state claimed that that these arrests, housing bans, and expulsions to the border came in the context of law enforcement. They relied on legal texts drafted tens of years ago that are now in contradiction with several articles of the constitution and of international agreements and regional conventions.   This starting point raises a number of questions: What was the political context that paved the way for the development of an anti-migrant discourse? How has the situation of migrants in Tunisia evolved since February, and what violations have they been exposed to? And how has the European strategy of border externalization contributed to the repression of migrants in Tunisia?   I. Tunisia: A Political Context in Crisis   According to the dominant narrative, Tunisia has succeeded temporarily in its transition to democracy through the organization of elections and a smooth transition of power following the 2014 and 2019 elections, having slipped into neither armed conflict and armed struggle (as in Libya, Syria and Yemen), nor into the return of authoritarian forces to power under new covers (as in Egypt). The discourse of exceptionalism was later reinforced by the launch of a dialogue sponsored by national organizations that united political parties around a roadmap that included the formation of a technocratic government, the ratification of the new constitution, and the organization of the 2014 elections. The Tunisian National Dialogue Quartet was awarded the 2015 Nobel Peace Prize.   However, Tunisia’s was an ‘unfinished revolution’: the emerging political elites were unable to offer economic and social alternatives that meet the expectations of vulnerable groups, who saw in the revolution as an opportunity to remedy years of deprivation, marginalization, and poverty.[4] Throughout the early years of democratic transition, Tunisia found itself embroiled in internal conflicts between the forces of the religious right—with rising waves of Islamic radicalism—and civil and democratic forces. The Tunisian street was shaken by the political assassinations of two leaders of the democratic left, as well as terrorist attacks on security forces and tourist sites.   Tunisians headed to the 2019 legislative and presidential elections with a notable abstention rate. As Arbi argues, ‘electoral abstention shows hostility towards political elites incapable of change and who have treated social groups, especially young people, by refusing negotiation, ignoring, rejecting and marginalising them, adding to this society’s aversion to partisan rivalries’[5] and resulting in a punitive vote. Tunisia’s nascent democracy was undergoing a serious crisis, which led to the emergence of new political elites and the decline of traditional parties. By setting himself apart through his hostility to the political and civil elites and rupture with traditional electoral practices, Saied succeeded in winning the second round of the 2019 presidential election. He subsequently declared that ‘what has happened in Tunisia is a real revolution using the tools of legitimacy’,[6] and began to implement his hostility towards all political, civil, and social media in practice.   Saied took advantage of popular resentment against the fragile performance of the political elites and their involvement in parallel conflicts to continue targeting them in all his media appearances. The parliamentary scene, despite its electoral legitimacy, seems hardly representative of the reality and expectations of society. In January 2021, Tunisia experienced a social shock due to the state’s mismanagement of the health crisis resulting from the Covid epidemic, which deepened the feeling of contempt and marginalisation among large sections of the population, particularly young people. The state and its apparatuses met the popular uprising in popular neighbourhoods with a repressive response from the security forces.[7]   On 25 July 2021, Saied took advantage of popular protests mobilised on social networks to announce exceptional measures, based on Article 80 of the Constitution, removing the Prime Minister and freezing the work of Parliament, turning against the crippled democracy. He closed the headquarters of the Supreme Anti-Corruption Commission in August 2021 and issued Decree 117, according to which the President of the Republic alone had the power to legislate in all areas. This ranged from the organisation of the justice sector and the judiciary to the media, the press, political parties, trade unions, associations, and professional organisations and bodies, as well as their financing, from the organisation of internal security forces and border control to electoral law, human rights and freedoms, personal status, local government, and the budget. The Presidency has gone even further, overriding the general rule of constitutional supremacy by considering the presidential order as the highest value.[8]             Saied subsequently dissolved the elected Supreme Judicial Council and replaced it with a temporary one on 12 February 2022, thus changing the mechanism from election to appointment. In March 2022, he announced the definitive dissolution of Parliament, and in April 2022 the dissolution of the Independent High Authority for Elections, modifying its law, and indemnifying seven of its members. Since July 2021, dozens of political and civil figures have been arrested on political charges, the most important of which is conspiracy against state security, intended to alter its structure. On 13 September, the President of the Republic issued Decree 54 of 2022 regarding the fight against crimes related to information and communication systems, according to which dozens of journalists and activists have been tried since its launch.   On the other hand, the President of the Republic launched a unilateral course that culminated in a referendum on a new constitution on 25 July 2022, which saw low turnout and aroused the ire of political and civil forces. This was followed by legislative elections on 17 December 2022, with a turnout of no more than 11%. Saied has been pursuing his project with determination ever since he took total control of the government and all the authorities, adopting a fiery rhetoric against all the political, civil, and economic elites. To achieve this, he has taken a path in which he has dismantled institutions considered as minor gains of the revolution. He reinforces himself with unlimited powers and security and military institutions, which he exaggerates at every opportunity in their praise, and among whom he has summoned personalities who occupy ministerial and advanced positions in the state.   II. Irregular M igration D ynamics in the R egion   Migration dynamics in the Mediterranean experienced significant changes after the 2015 crisis, which brought remarkable inflows and subsequent measures to limit arrivals. Since 2016, irregular movement operations have begun to decline across the eastern Mediterranean, from 835,386 migrants in 2015 to 182,277 migrants in 2016 following an agreement with Turkey, before reaching the lowest level of 19,681 migrants in 2020. Meanwhile, the Central Mediterranean route is emerging, mainly starting from the Libyan coast, where the number of arrivals reached 153,946 immigrants in 2015 and peaked at 181,376 immigrants in 2016. Then the number gradually decreased, before going back up again in 2021.[9]   These figures reveal major changes in the Central Mediterranean Basin, where departure operations are mainly based off the Tunisian coast. This is due to the danger posed by the land route for migrants leaving sub-Saharan African countries once they arrive in southern Libya, where the violations to which they are exposed on land and at sea are intensified through detention, torture, and forced displacement back to sea. Since 2016, the European Union has gradually abandoned its core responsibilities of search and rescue off the Libyan coast, where thousands of migrants have been killed, and has instead provided money, ships, training, and air support to armed groups in Libya to prevent the arrival of migrants. Attempts to cross from Libya have become a terrifying adventure for those dreaming of crossing to the northern shore. The UN Fact-Finding Mission in Libya has announced that it has reasonable grounds to believe that a wide range of war crimes and other crimes against humanity have been committed, including sexual crimes against migrants.[10]   On the other hand, the western rout (Morocco and the Canary Islands), recording its highest numbers in 2018 with the arrival of 57,034 migrants, has shown a decline, reinforced by the Hispano-Moroccan rapprochement upon the reconciliation over the ‘Western Sahara’ issue and Morocco’s commitment to strengthening coastal control.[11] Consequently, migrants began to opt for safer places to depart. Tunisia’s geographical proximity to Europe is an incentive to explore as a route as the Italian island of Lampedusa is only 130 km from the Tunisian coast, compared to 290 km from the Libyan coast.   Attempts to explore the route through Tunisia began in late 2020 with the arrival of a small number of migrants across the Algerian border, mainly of Guinean and Malian nationality. Arrivals’ flow via the Algerian border evolved gradually, accompanied by tragic events such as the death of two women and four children from thirst in the Douz desert in the summer of 2021, and the discovery of the bodies of four migrants who died of cold and thirst in March 2022 in the governorate of Kasserine, near the border with Algeria. The number of arrivals then increased, reaching 2310 via Algerian borders in February 2023, and 998 asylum seekers via the Libyan ones.[12]   The crossings of sub-Saharan migrants to Europe from the Tunisian coast did not attract attention because they were infrequent, since migrants of non-Tunisian nationalities who were thwarted before leaving Tunisia accounted for only 9% in 2017.[13] This percentage rose to 33% in 2019.[14] In 2022, the rate of sub-Saharan migrants intercepted in Tunisia reached 61.76%. In the first nine months of 2023, this figure rose to 82.24%.   These quantitative data monitoring the transformation of migratory routes in the Mediterranean have prompted the Tunisian authorities to act swiftly to stop the movement of migrants through Tunisia. The manifestations of this shift have given further justification to the escalation of rhetoric arousing fear of migrants. This is what Tunisian officials rely on to reiterate the idea that Tunisia will be neither a stable nor a transit country for migrants. III. February 2023, ‘The Big Transformation’   Usually, the National Security Council meets when convened by the President of the Republic, who sets the agenda, at least once every three months and whenever necessary—when an imminent danger threatens the national entity, security, or independence of the country, or when it is exposed to crises.[15] The meeting on 21 February was a one-off, held with the aim of ‘confronting the migrants’ danger’. During the meeting, Saied argued that the situation was not normal, suggesting that there was a criminal arrangement at play, which had aimed since the beginning of this century to change the demographic composition of Tunisia. He also suggested that certain parties had received huge sums of money after 2011 to enact this plan and settle irregular migrants from sub-Saharan Africa in Tunisia, implying that these successive waves of irregular migration had the undeclared aim of making Tunisia a solely African country, with no affiliation to Arab or Islamic nations.[16]   The Presidency’s statement was preceded by a security campaign entitled ‘Strengthening the security network and reducing the phenomenon of irregular residence in Tunisia’, targeting migrants from sub-Saharan Africa,[17] which resulted in the arrest of dozens of migrants. The press release was based on a report published by the Tunisian Nationalist Party entitled ‘Report on the Negro colonisation project and the dismantling of Tunisia’[18] and on a number of misleading facts that accompanied the campaigns on social media platforms. This party has played a key role in stirring up anti-migrant sentiment and racist rhetoric in Tunisia.   The Tunisian Nationalist Party was founded in December 2018 and organises its priorities around four focal points: linking insecurity to the presence of migrants; suggesting that their presence on Tunisian territory threatens the country’s identity and aims to destroy it; demonising human rights organisations and accusing them of imposing their visions of migration policies on governments; and the so-called ‘national priority’, according to which employment priority should be given to Tunisians.[19]   The Party led the security campaign mentioned above online and on the ground against migrants in Tunisia. The 21 February statement crowned this campaign and ushered in a new course of violations that affected all categories of migrants. State agencies recalled obsolete texts and laws which have long been the focus of criticism from human rights defenders and led campaigns targeting migrants. The General Labour Inspectorate, a supervisory body affiliated with the Ministry of Social Affairs, has called for the immediate suspension of all irregular migrant workers, and has threatened to punish anyone who contravenes this measure.[20] The judicial authorities also threatened to punish anyone renting accommodation to irregular migrants. Security forces continued their operations to track down migrants, stepping up surveillance operations in all public spaces. Hypothetical discriminatory rhetoric turned into hysterical field campaigns aimed at expelling migrants from their jobs and places of residence.   Calls for help were frequent, signalling evictions from houses, dismissals from jobs, and physical and verbal attacks. For fear of attacks, migrants—especially students and workers—were forced to stay at home. Civil society organisations and individual citizens have set up crisis cells to assist and intervene urgently to assist the injured or provide medical care and food. The Tunisian Association of Young Doctors communicated emergency numbers to facilitate contact with injured migrants or those in need of care.[21]   The President of the Republic’s racist speech in February 2023, in which he characterized the presence of migrants in Tunisia as a criminal scheme aimed at changing the demographic composition of the country, sparked many reactions. The African Union condemned Saied’s stance on migrants from sub-Saharan Africa and called on its member states to ‘refrain from any racist hate speech likely to harm people’.[22] The Tunisian Ministry of Foreign Affairs in turn responded that it was surprised by the African Union’s statement, rejecting what it called ‘unfounded accusations’, and claiming that the statement was based on a misunderstanding of the positions of the Tunisian authorities.[23] Guinea sent its Foreign Minister specifically to repatriate its nationals, the Ivory Coast and Mali did the same, and many African countries summoned their Tunisian ambassadors to express their displeasure at the President’s violent rhetoric and to demand further explanations.   In his annual report, the United Nations High Commissioner for Human Rights, Volker Türk, criticised ‘the racist rhetoric targeting migrants, most of whom are from sub-Saharan Africa’.[24] The United Nations Committee on the Elimination of Racial Discrimination has urged Tunisia’s highest authorities to condemn and distance themselves from racist hate speech delivered by politicians and public / nongovernmental figures.[25] As for the World Bank, it called—in an internal note—for the suspension of the partnership framework with Tunisia. It then postponed its board meeting, scheduled for 21 March, to consider a new strategic agreement with Tunisia until further notice.[26] Amnesty International announced that the President’s comments had contributed to an increase in racist violence against black people.[27] On the other hand, the far-right extremist who ran in the French presidential elections, Éric Zemmour, was quick to hail Saied’s speech as a role model and congratulate him on his work.[28]   On the national level, Tunisian civil society organisations considered Saied’s speech to be unprecedentedly racist and fascist, and called for demonstrations in the streets of the capital Tunis on 25 February 2023.[29] At the same time, pages and accounts on social networks adopted the position of the Presidency of the Republic and launched intimidation campaigns against migrants, portrayed as a threat to national security, as well as an economic, social, and sanitary threat. All migrants, regardless of their administrative status, and all those who support them, including organisations, associations and even black Tunisian citizens, have not been spared by the climate of terror that followed the February quake.   Under pressure, Saied tried to remedy the situation by making media appearances to justify his positions and describing as traitors all those who denounced them.[30] During his visit to the governorate of Sfax on 10 June 2023, a region where many sub-Saharan migrants gather, President Saied gave a speech using ‘yes…but’ phrases more than thirteen times. The following are the most striking excerpts, bearing witness to this rhetorical strategy, which constructs a humanist and humanitarian description of the migration phenomenon, but then cancels it out under the pretext of ‘maintaining order’:   The solution can only be humanitarian and collective, based on humanitarian standards, ‘ but ’  in accordance with the legislation of the s tate.   We are Africans, they are our brothers and we respect them, ‘ but ’ this situation that Tunisia is experiencing and has never experienced is an abnormal situation and we must put an end to these inhuman conditions.   They are victims of poverty, civil wars and the absence of the state, and they turn to Tunisia as a refuge. ‘ But ’  we are also a state that has its own laws and respects the law and human beings. ‘ But ’  everyone must respect the laws and sovereignty of the Tunisian state.   The solution must not be at the expense of the Tunisian state. We naturally preserve and protect these people and don’t let those who attack them walk away,  ‘ but ’  they must also respect Tunisian laws.   We will not accept any attack against them, and we will protect them, ‘ but ’  they must be under legal conditions.[31]   In most of his media outings, Saied continued to attack all those who expressed a position against the decisions of the National Security Council, and with every reference to the issue of irregular migration, he reiterated:   The humane treatment these migrants receive stems from our values and character, contrary to what is promoted by colonial circles and their agents whose only concern is to serve these circles, and nothing is more obvious than that their positions are the same as those of the frenzied trumpeters abroad who are paving the way for a new type of colonisation, falsifying facts and spreading lies.[32]   The Tunisian state used laws, agencies, and rhetoric to defend its policies, but Saied’s speech in February 2023 marked a sea change in that direction. The authorities stuck to their strategies and continued to use this both internally in the internal political conflict between Saied and his opponents and externally in persuading the European Union to sign a memorandum of understanding, despite the pressure that was evident in the dissatisfaction of Tunisian civil society and the responses of sub-Saharan nations and international organizations.   IV. ‘Sovereign’ Violence   Migrants—from sub-Saharan Africa in particular—in Tunisia have been the victims of sporadic racist attacks for years. But the situation has worsened since the February speech. As Amnesty International summarized:   President Saied’s remarks at the National Security Council meeting on 21 February, characterised by unfair discrimination and hatred, have provoked an increase in racist violence against blacks. Groups of people took to the streets and attacked black migrants, students and asylum seekers. Police arrested dozens of migrants and deported them.[33]   Social media platforms exploded after the President’s speech demanding that migrants be expelled from their jobs and places of residence, and that they represent a real danger to Tunisians. Various accounts posted videos and photos documenting the forced expulsion of migrants from their homes, and their belongings being set on fire. Civil society organisations received dozens of distress calls from migrants who had been attacked and were unable to reach hospitals, especially as they do not trust the police to deal with their calls and complaints. Human Rights Watch said that between 24 February and 3 March, it   interviewed 16 citizens from West and Central African countries residing in Tunisia and documented their tales of the violence, robberies, and assaults they faced after the president’s speech. The 16 interviewees are distributed as follows: seven workers, including six undocumented workers and one legal resident, five students and four asylum seekers registered with the United Nations High Commissioner for Refugees.[34]   The February speech did not mark the end of the crisis, but rather its development in the wake of the murder of a young Tunisian by migrants following a conflict that culminated in a campaign to expel migrants from the city of Sfax. The Tunisian authorities have used this situation as a pretext to carry out a campaign of successive arrests, followed by forced and illegal expulsions under threat, with the aim of ‘purging’ the town of anyone from sub-Saharan Africa by transferring them from the centre and delegations of the Sfax governorate to unknown destinations.   Video clips posted on social networks also revealed the arrival of a large number of buses carrying migrants, both men and women, from Sfax towards the Tunisian-Libyan border, with the intention of evacuating them to deserted areas, in temperatures of up to 50 degrees Celsius, in poor conditions and without any help or resources.[35] The National Guard and army expelled or forcibly transferred up to 1,200 people in several groups to the borders with Libya and Algeria.[36] Data from the National Institution for Human Rights in Libya has confirmed the transfer of migrants to the border by the Tunisian authorities in order to evade their moral, legal, and humanitarian responsibilities towards these migrants and asylum seekers on its territory and dump them in Libya.[37] This has led to the disappearance of dozens of people and deaths from thirst in the desert, as in the case of the migrant Fatie and her daughter Marie.[38] The Tunisian authorities have also transferred dozens of migrants to the Algerian border in an area of the Tozeur governorate known as ‘Wadi Al-Mghatta’, a place with no shade or grass, no water, no electricity, no Internet, and no means of communication, full of insects and far from hospitals and vital infrastructures.[39]   The Tunisian Forum for Economic and Social Rights has documented the harsh human and climatic conditions, where ‘through hot weather, thirst and hunger, the migrants have no roof to shelter them from the heat o nor mattresses to sleep on, they are scattered here and there along the valley, seeking shade under the palm trees and rocks of the mountains’.[40] The Forum stressed that ‘approving the deposition of migrants at borders, in the desert, in mountains and valleys, and isolating them from cities, neighbourhoods and commodities, is a racist political move’.[41] Other migrants have also been expelled to other border provinces with Algeria under open sky, in order to force them to enter Algeria. Living conditions in border areas and delays in receiving humanitarian aid can constitute acts of torture within the meaning of the United Nations Convention Against Torture. The lack of water, food, medical assistance, and shelter in a desert where temperatures can reach over 45 degrees Celsius has caused severe pain and suffering, both physically and mentally, to women and children forcibly detained in the buffer zones.[42] Tunisian organisations urgently called for an end to mass expulsions and humiliating treatment of migrants, and for respect of their dignity and rights, regardless of their administrative status, yet in vain.[43] This was accompanied by evacuations by African countries of their nationals, while others were forced to flee by sea in rickety boats, a situation exploited by migrant smuggling networks. The result was a humanitarian crisis that left over 1,300 people dead or missing on the Tunisian coast.[44] The campaigns of violence did not spare women, as the Tunisian Association of Democratic Women announced that it had documented a case of rape.   The violence affected refugees, asylum seekers, students, and migrant workers, in various forms, as described below.   Institutional violence : State institutions and agencies took it upon themselves to discriminate against migrants under the pretext of enforcing the law. Police forces led a campaign to arrest migrants under the pretext of illegal residence. Police officers spread out to check documents and raid neighbourhoods inhabited by a majority of migrants. Dozens of arbitrary arrests were made, with no legal support. The General Labour Inspectorate prohibited all employers from hiring migrant workers without residence documents. Judicial authorities also threatened heavy penalties against anyone renting accommodation to ‘illegal’ migrants, while the Presidency continued to publish repeated statements linking migrants to violence and crime. The Tunisian authorities adopted expulsion to the border as a systematic policy to remove migrants from the Sfax region, in difficult climatic conditions, where temperatures during the summer period exceeded 40 degrees. It continued to rely on this policy for all migrants intercepted at sea, in order to punish all those who dared to attempt to leave by sea.   Digital violence or cyber-violence : Virtual space was invaded by images, texts, and video clips of hatred towards migrants demanding their immediate expulsion. Fake news and misleading images and videos were used. ‘Falso’, a digital research platform that works to monitor the quality of content on the Internet in Tunisia, observed several misleading pieces of information used during the campaign and documented them in a report published on 28 February 2023.[45]   Physical violence : This includes threats and physical actions to which migrants have been exposed, such as beatings and mutilation. It also includes forced eviction from homes and workplaces, and the destruction of migrants’ belongings. Dozens of injured people were unable to reach hospitals due to fear and panic. A house in the Sfax region inhabited by sub-Saharan migrants was also attacked by a group of young men on the night of 20-21 May 2023, resulting in the death of one migrant and serious injuries to four others.[46]   Verbal violence : Such violence is well known to migrants but it occurred more intensely after the February 2023 speech—particularly in public spaces, migrant workplaces, and accommodation. Even some black Tunisians were not spared.   Economic violence : The crisis exacerbated the economic violations to which migrants were exposed, as they were subjected to expulsion from their jobs, confiscation of their documents, and seizure of their remaining wages. Some employers took advantage of the situation to impose free labour in exchange for protection.   Sexual violence : Women’s rights organisations documented cases of sexual assault and harassment of migrant women.   Violence against children : Children were exposed to numerous violations due to the deprivation of health and medical services and the inability to access food, in addition to the conditions that accompanied expulsions to the borders, including high temperatures and lack of water.   V.   Memorandum of Understanding between Tunisia and the European Union: Fortresses in the North and South   While hundreds of migrants were suffering in the desert and at the borders in harsh climatic conditions, dozens more were dying at sea in rapidly sinking steel boats, and Tunisia’s fragile space of free speech was being restricted following arrests that targeted political leaders, journalists, activists, and all those who expressed opposition stances, European leaders chose to come to Tunisia on Sunday 16 July 2023 to sign a memorandum of understanding on a strategic and comprehensive partnership.[47]   Characterising the negotiation phase was the absence of any information, particularly on the Tunisian side, which provided no feedback on the discussions, and the absence of any political or societal debate on the Tunisian vision of the negotiations. The memorandum of understanding included a general introduction and certain fundamental axes of varying importance: macroeconomics, economy, trade, green energy transition, rapprochement between peoples, migration, and mobility. With regard to the last axis, the most important in view of its scope and urgency, the memorandum referred in particular to the common desire of both parties to develop a global approach to migration, and also to develop regular immigration routes.   The memorandum confirms that Tunisia has renewed its position of refusing to be a country of resettlement for irregular migrants and to limit itself to the surveillance of its own borders, a clause frequently repeated in the speech of the President of the Republic. It underlined the European Union’s commitment in this context to providing additional support to Tunisia to acquire the equipment, training, and technical support needed to improve the protection of its borders. The two parties are also committed to enabling irregular migrants in Tunisia to return to their countries of origin, while respecting their dignity and complying with international law.   Clearly, the document signed does not constitute a full partnership aimed at the circulation or concerted management of migration with Tunisia, but rather a partnership focused on the ‘fight’ against irregular migration which, in the words of Mahdi Mabrouk, a sociology professor, ‘treats the symptoms and does not provide a solution to any problem’.[48] Amnesty International commented: ‘What is most worrying is that this agreement was reached without imposing any human rights conditions, without assessing or monitoring its effects on human rights, and without any mechanism for suspending cooperation in the event of violations’.[49] The risks inherent to the agreement can be identified as follows:   The growing violence against migrants in Tunisia and the criminalisation of solidarity : The signing of the memorandum was followed by further brutal attacks on migrants, who were expelled from the city of Sfax to the olive groves. The Tunisian authorities have also stepped-up mass expulsions to Tunisia’s borders, in places that are difficult to access, threatening to prosecute anyone who tries to help and criminalising solidarity. All those who provide help are accused of being part of migrant smuggling networks. Civil organisations see the agreement as an endorsement of violence against migrants by the European Union,[50] which encourages the adoption of ‘security measures’[51] and the use of forced repulsion operations at sea, where naval guards force fleeing iron boats to stop firmly through dangerous manoeuvres, attempts to ram engines, and the use of gas and sticks at sea.   The memorandum indirectly legitimises the use of whatever means the Tunisian side deems appropriate to stop the arrival of immigrants in the Schengen area. The state’s policies have not only created a hostile environment towards migrants, but aim to ‘dissuade citizens, men and women, from expressing solidarity with and helping refugees and migrants by threatening to use the 2004 law, exercising psychological harassment and withholding the papers of anyone providing assistance to migrants. Uniformed and plain-clothed police deliberately restrict solidarity with refugees and asylum-seekers’.[52]   The imposition of inadequate socio-economic reforms : The memorandum of understanding is part of a drive to promote so-called reforms aimed at facilitating Tunisia’s access to a new line of financing from the International Monetary Fund. These reforms are not agreed and are considered by trade unions and civil society to be of high cost to vulnerable groups, contributing to cuts in public spending on basic services and reducing the number of employees, freezing retirement benefits, and reducing the development budget, thus widening poverty, inequality, and unemployment.   Legitimising Tunisia’s status as a safe country : A country is defined as ‘safe’ if it enjoys a political and democratic system free from persecution, arbitrary violence, and armed conflict, and is able to protect its nationals from unlawful prosecution, as required by effective and active judicial and administrative laws to protect the people. This hardly applies to Tunisia in its current context, where political life and democracy have declined significantly, rights and freedoms are restricted, opponents, journalists and activists are subjected to trials for their opinions, and many are forced to leave their country for fear of persecution. The memorandum of understanding helps to encourage European Union countries to classify Tunisia as a reliable partner and a safe country, thus facilitating the automatic rejection of asylum applications submitted by Tunisians within the Schengen area.   Tightening visa procedures : The European Union wants Tunisia to open up further to Europe in terms of the movement of goods, services, and capital, but not in terms of the free movement of people. The memorandum therefore supports the intensification of control at European borders, determining who and what is allowed to cross them: alleged promises to facilitate entry and others to ease visa procedures under the slogan of ‘talent partnership’. These are nothing but false promises, as visa procedures are still extremely complicated for Tunisians wishing to travel to Europe, and instead widen the gap in social inequality and perpetuate inequalities between social classes in Tunisia (a small, economically fortunate group enjoys the right of movement, while excluded economically and socially marginalised groups do not).   Forced mass deportations under the cover of readmission : To achieve their goal of expelling migrants from Tunisia under the name of ‘voluntary return’, the Tunisian authorities intend to create a repugnant environment for migrants so that the only solution for them to survive is to agree to return, even if this also puts their lives in danger. The authorities have gradually created this environment through arbitrary arrests under the pretext of irregular residence, work bans under the pretext of applying the labour code, and bans on movement, by giving verbal instructions to public and private transport companies to prohibit the transport of migrants.   Anyone failing to comply with these instructions will be subject to traffic restrictions and fines. This forced hundreds of migrants to travel long distances on foot, or to surrender to the blackmail of some individuals seeking to make the most of the situation and accumulate wealth. The policy was a success, and the International Organization for Migration organised trips to Guinea, Burkina Faso, and the Ivory Coast. These trips were made possible by European and British funding. At the end of a meeting between the heads of the Italian and British governments, the British Prime Minister declared that they ‘have committed to help fund a project to promote and assist the voluntary return of migrants from Tunisia to their country of origin’.[53]   The return of migrants requires bilateral agreements and logistical procedures that the European Union is committed to fund, which could in the future mean the construction of detention centres for migrants prior to the deportation process. Voluntary repatriation also applies to irregular Tunisian immigrants in Europe, as Tunisia has pledged further cooperation despite criticism. The European Court condemned the Italian government in a 31 March ruling in a case involving four Tunisian immigrants on the basis of the European Convention on Human Rights, in particular article 3 of the Convention relating to Inhuman and Degrading Treatment, article 5 relating to the right to liberty and security and article four relating to mass forced deportations.[54]   In view of the above, it cannot be said that this memorandum will benefit Tunisia and the state of rights and freedoms to which the Tunisian people aspire, especially in the short term. Rather, it has been designed to serve the interests of European governments at the expense of the rights and dignity of Tunisian citizens and migrants in Tunisia and has been implemented in response to a crisis in receiving immigrants to Europe. The memorandum does not allow for mutual and equal freedom and dignity for the inhabitants of the northern and southern shores of the Mediterranean, and instead contributes to feed feelings of hatred and racism towards migrants in Tunisia.   Conclusion   Democracy is based on respect for human rights and fundamental freedoms, including freedom of opinion and expression, freedom of association, access and exercise of power under the rule of law, the holding of elections, freedom of political action, separation of powers, independence of courts, transparency, accountability, and media freedom. These conditions have been gradually disappearing in Tunisia since the advent of Saied’s rise to power as a result of a crisis in representative democracy since 25 July 2021.   Saied presented himself as the embodiment of the people’s desire for ‘sovereignty’. He used his populism as a weapon to confront his opponents, and even to create opponents for the people. After having consumed the discourse on corrupt elites, parties, organisations, and media, Saied presented his people with the ‘migrants’ as a new threat and adversary who supposedly wanted to alter Tunisia’s demographic composition and were to blame for its economic and social crisis. He has exercised his ‘sovereignty’ over vulnerable migrants. Expelling migrants to the borders, forcing them back out to sea, and preventing them from working, finding housing, and moving—under the pretext of an irregular administrative situation—has become the norm. This sovereignty has no objection to statements by Italian officials about imposing a naval blockade to prevent the arrival of migrants, nor to the French President’s proposal to send security personnel to help Tunisia, nor to agreements that fail to respect the rights and dignity of migrants. It is a sovereignty that ‘neither sees nor hears’ about the hundreds of corpses dumped on Tunisian beaches and struggles to ensure a decent burial for migrants’ bodies. It is a sovereignty that does not provide answers for the families of people who go missing during irregular migration. Saied’s ‘sovereignty’ was nourished by what remained of the dignity of people fleeing war, conflict, climate change, poverty, and harsh economic conditions.   Despite this violent climate against migrants, civic solidarity campaigns for them are growing and finding a base even among local communities who are also suffering because of the economic and social situation. Yet the future holds little signs of hope or a path to survival for migrants and refugees stranded in Tunisia. Indeed, developments in the countries of Central and West Africa and the war in Sudan could be the sign of more people fleeing and dreaming that Tunisia’s shores will be a door of escape. Europe could succeed in reinforcing the walls of its fortress by striving to circulate the memorandum of understanding with the rest of the southern Mediterranean countries and further militarising the Mediterranean Sea to prevent the arrival of migrants at all costs. The ‘sovereignty’ of Kais Saied may give him the opportunity to be re-elected, but the human and civilizational cost has been high, and Tunisians must fight fiercely to defend their ignoble democratic dream and erase the ‘shame’ of the February 2023 speech. Romdhane Ben Amor Romdhane Ben Amor is a human rights advocate who was an Internet activist prior to the Tunisian revolution and one of the bloggers who covered the 2008 mining basin events in Tunisia. He joined the Tunisian Forum for Economic and Social Rights FTDES organisation after the revolution and developed an interest in the dynamics of irregular migration as well as social mobility in Tunisia. He was a member of the World Social Forum’s organising committee, which met twice in Tunisia in 2013 and 2015. Currently, he is pursuing a Master of Research in Demography at the University of Human and Social Sciences of Tunis.   This article was written in January 2024. [1] Statement by the Presidency ( Republic of Tunisia Ministry of Social Affairs , 5 March 2023) < https://www.social.gov.tn/en/statement > accessed 22 January 2024. [2] Photo published by Libyan journalist Ahmed Khalifa ( Twitter , 19 July 2023) < https://twitter.com/ahmad_khalifa78/status/1681672974246584321 > accessed 22 January 2024. [3] l  ‘موكب أداء القسم وكلمة رئيس الجمهورية المنتخب قيس سعيد’ ( Facebook , 23 October 2019) < https://www.facebook.com/Presidence.tn/videos/914211068964108/ > accessed 22 January 2024. [4] ‘The unfinished revolution : bringing opportunity, good jobs and greater wealth to all Tunisians’ ( The World Bank , 24 May 2014) < https://documents.worldbank.org/en/publication/documents-reports/documentdetail/658461468312323813/the-unfinished-revolution-bringing-opportunity-good-jobs-and-greater-wealth-to-all-tunisians > accessed 22 January 2024. [5]  H Arbi , ‘ Annual report on the 2019+ social protests’ 4 < https://ftdes.net/rapports/mvtssociaux2019 > accessed 1 May 2024. [6]   Facebook   (n 3) [7] ‘Lettre Ouverte au: Rapporteur spécial sur les droits à la liberté de réunion pacifique et à la liberté d’association la Rapporteuse spéciale des Nations Unies sur la liberté d’opinion et d’expression’ [‘Open Letter to: Special Rapporteur on the rights to freedom of peaceful assembly and to freedom of association the UN Special Rapporteur on freedom of opinion and expression’] ( FTDES , 25 March 2021) < https://ftdes.net/lettre-ouverte-au-rapporteur-special-sur-les-droits-a-la-liberte-de-reunion-pacifique-et-a-la-liberte-dassociation-la-rapporteuse-speciale-des-nations-unies-sur-la-liberte-dopinion-et-dexpress/ > accessed 23 January 2024. [8] ‘Joint Statement: Tunisia: Unprecedented Confiscation of Power by the Presidency’ ( Human Rights Watch , 27 September 2021) < https://www.hrw.org/news/2021/09/27/joint-statement-tunisia-unprecedented-confiscation-power-presidency > accessed 23 January 2024. [9] ‘Flux migratoires: les routes orientale, centrale et occidentale’ ( Council of the European Union ) < https://www.consilium.europa.eu/fr/infographics/migration-flows-to-europe/ > accessed 23 January 2024. [10] UN Human Rights Council, ‘Independent Fact-Finding Mission on Libya’ ( OHCHR , 22 June 2020) < https://www.ohchr.org/ar/hr-bodies/hrc/libya/index > accessed 23 January 2024. [11] ‘Infographic—Irregular arrivals to the EU (2008-2023)’ ( Council of the European Union ) < https://www.consilium.europa.eu/fr/infographics/irregular-arrivals-since-2008/ > accessed 23 January 2024. [12] ‘Tunisia Operational Map—Refugees and Asylum Seekers’  ( UNHCR , March 202 3) < https://reporting.unhcr.org/tunisia-operational-map > accessed 23 January 2024.   [13] ‘Annual Report Non-regulated Emigration from Tunisia 2017’ ( FTDES , 8 March 2018) < https://ftdes.net/emigration2017/ > accessed 23 January 2024. [14] ‘Annual report: Non-regulated migration in Tunisia 2019’ ( FTDES , 3 July 2020) < https://ftdes.net/ar/rapport-annuel-migration-non-reglementaire-en-tunisie-2019/ > accessed 23 January 2024. [15] Government Order No 70, 19  January   2017 on the National Security Council. [16] Statement by the Presidency of the Republic, 21 February 2023; Lilia Blaise, ‘Tunisia’s President Kais Saied claims sub-Saharan migrants threaten country’s identity’ Le Monde  (Paris, 23 February 2023) < https://www.lemonde.fr/en/le-monde-africa/article/2023/02/23/in-tunisia-president-kais-saied-claims-sub-saharan-migrants-threaten-country-s-identity_6016898_124.html > accessed 23 January 2024. [17] ‘Arbitrary arrests and hate campaigns against migrants of sub-Saharan origin in Tunisia’ ( FTDES , 16 February 2023) < https://ftdes.net/ar/arbitrary-arrests-and-hate-campaigns-against-migrants-of-sub-Saharan-origin-in-tunisia/ > accessed 23 January 2024. [18] l  ‘تقرير مشروع الإستيطان الأجصي و إزالة تونس من الوجو’ ( Tunisian National Party , 3 February 2023) < https://bit.ly/4fJsbhy > accessed 23 January 2024. [19] Najla Ben Salah, ‘الحزب القومي التونسي: العنصرية الزاحفة بمباركة الدولة’ ( Nawaat , 14 February 2023) < https://nawaat.org/2023/01/26/%d8%a7%d9%84%d8%ad%d8%b2%d8%a8-%d8%a7%d9%84%d9%82%d9%88%d9%85%d9%8a-%d8%a7%d9%84%d8%aa%d9%88%d9%86%d8%b3%d9%8a-%d8%a7%d9%84%d8%b9%d9%86%d8%b5%d8%b1%d9%8a%d8%a9-%d8%a7%d9%84%d8%b2%d8%a7%d8%ad%d9%81/ > accessed 23 January 2024.   [20] l  ‘بلاغ جهاز تفقديّة الشّغل بكامل ولايات الجمهورية يواصل القيام بحملات مراقبة مكثّفة لتشغيل’ < https://www.social.gov.tn/index.php/ar/%D8%A8%D9%84%D8%A7%D8%BA-%D8%AC%D9%87%D8%A7%D8%B2-%D8%AA%D9%81%D9%82%D8%AF%D9%8A%D9%91%D8%A9-%D8%A7%D9%84%D8%B4%D9%91%D8%BA%D9%84-%D8%A8%D9%83%D8%A7%D9%85%D9%84-%D9%88%D9%84%D8%A7%D9%8A%D8%A7%D8%AA-%D8%A7%D9%84%D8%AC%D9%85%D9%87%D9%88%D8%B1%D9%8A%D8%A9-%D9%8A%D9%88%D8%A7%D8%B5%D9%84-%D8%A7%D9%84%D9%82%D9%8A%D8%A7%D9%85-%D8%A8%D8%AD%D9%85%D9%84%D8%A7%D8%AA-%D9%85%D8%B1%D8%A7%D9%82%D8%A8%D8%A9-%D9%85%D9%83%D8%AB%D9%91%D9%81%D8%A9-%D9%84%D8%AA%D8%B4%D8%BA%D9%8A%D9%84-%D8%A7%D9%84%D8%B9%D9%85%D9%91%D8%A7%D9%84 >  accessed 24 January 2024. [21] Organisation Tunisienne des Jeunes Médecins ( Facebook , 23 February 2023) < https://www.facebook.com/OTJM.National/posts/3618424695053248?ref=embed_post > accessed 23 January 2024. [22] ‘The Chairperson of the African Union Commission strongly condemns the racial statements on fellow Africans in Tunisia’ ( African Union , 24 February 2023) < https://au.int/fr/pressreleases/20230224/le-president-de-la-commission-de-lunion-africaine-condamne-fermement-les > accessed 23 January 2024. [23]   See ‘ وزارة الشؤون الخارجية والهجرة والتونسيين بالخارج’ ( Facebook , 25 February 2023) < https://www.facebook.com/TunisieDiplo/posts/pfbid0k7RwaRyZD54JGFiUv1Z2usEPB86Vxvr9b3mMscMaDkjZzVNZxS2ufuAQGYb5dQdul > accessed 23 January 2024. [24] l  ‘مفوض حقوق الإنسان في خطاب شامل: قلق بشأن الوضع في دول عدة ودعوة لتعزيز الحقوق’ ( UN News,  7 March 2023) < https://news.un.org/ar/story/2023/03/1118687 > accessed 23 January 2024.   [25] l  ‘لجنة أممية تحث تونس على إنهاء خطاب الكراهية والعنف ضد مهاجرين من جنوب الصحراء’ ( UN News , 4 April 2023) < https://news.un.org/ar/story/2023/04/1119412 > accessed 23 January 2024. [26] Andrea Shalal and Angus Mcdowall, ‘World Bank says pausing future Tunisia work amid reports of racist violence’ ( Reuters , 6 March 2023) < https://www.reuters.com/world/africa/world-bank-says-pausing-tunisia-work-amid-racially-motivated-violence-2023-03-06/ > accessed 23 January 2024. [27] l  ‘تونس: الخطاب العنصري للرئيس يُحرّض على موجة عنف ضد الأفارقة السود’ ( Amnesty International , 10 March 2023) < https://www.amnesty.org/ar/latest/news/2023/03/tunisia-presidents-racist-speech-incites-a-wave-of-violence-against-black-africans/ > accessed 23 January 2024. [28]  Eric Zemmour ( Twitter , 22 February 2023)  < https://twitter.com/ZemmourEric/status/1628328739284176896?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Etweet >  accessed 23 January 2024. [29] l  ‘بيان مشترك: تونس لن تكون فاشية كما يريدها رئيس الجمهورية’ ( LTDH ) < https://ltdh.tn/%D8%AA%D9%88%D9%86%D8%B3-%D9%84%D9%86-%D8%AA%D9%83%D9%88%D9%86-%D9%81%D8%A7%D8%B4%D9%8A%D8%A9-%D9%83%D9%85%D8%A7-%D9%8A%D8%B1%D9%8A%D8%AF%D9%87%D8%A7-%D8%B1%D8%A6%D9%8A%D8%B3-%D8%A7%D9%84%D8%AC%D9%85/ > accessed 23 January 2024. [30] Abdellatif Hermassi, Revolution and Calvary: An Approach from the Point of View of Political Sociology  (Sotimedia Publications 2023) 268. [31] Watania Replay, ‘ تحول رئيس الجمهورية قيس سعيد إلى ولاية صفاقس ‘ ( YouTube , 10 June 2023) < https://www.youtube.com/watch?v=M-MxKnUN-NQ > accessed 24 January 2024. See Khalid Tabbabi, ‘الحق لكن ‘القانون’: قراءة في الخطاب الرئاسي حول قضية المهاجرين’ ( The Legal Agenda , 15 June 2023) < https://legal-agenda.com/%d8%a7%d9%84%d8%ad%d9%82-%d9%84%d9%83%d9%86-%d8%a7%d9%84%d9%82%d8%a7%d9%86%d9%88%d9%86-%d9%82%d8%b1%d8%a7%d8%a1%d8%a9-%d9%81%d9%8a-%d8%a7%d9%84%d8%ae%d8%b7%d8%a7%d8%a8/ > accessed 24 January 2024. [32]  See Présidence Tunisie ( Facebook , 8 July 2023)  < https://www.facebook.com/story.php?story_fbid=pfbid0s28VUh7cUAxrjuXd7Y6sxajxQwS8A6JfGhb66eca3KEh2kD3ZSS4FrdzCYT9n2Qol&id=100064458289062&mibextid=qC1gEa&paipv=0&eav=AfYSpoVLe1yoF56c1JIjTUdqSV2M4m3Dg4NmsJSP_I-rhDflPDsKPGehLcdwDa8K6uw&_rdr > accessed 24 January 2024.   [33]   Amnesty International (n 27). [34] ‘Tunisia: Racist Violence Targets Black Migrants, Refugees’ ( Human Rights Watch , 10 March 2023) < https://www.hrw.org/ar/news/2023/03/10/tunisia-racist-violence-targets-black-migrants-refugees > accessed 24 January 2024. [35] ‘Situation à Sfax : Préserver la vie humaine : un principe baffoué au cœur de la tragédie migratoire’ ( FTDES , 6 July 2023) < https://ftdes.net/situation-a-sfax-preserver-la-vie-humaine-un-principe-baffoue-au-coeur-de-la-tragedie-migratoire/ > accessed 24 January 2024. [36]   ‘Tunisia: No Safe Haven for Black African Migrants, Refugees’ ( Human Rights Watch , 19 July 2023 ) < https://www.hrw.org/ar/news/2023/07/19/tunisia-no-safe-haven-black-african-migrants-refugees > accessed 24 January 2024.   [37]   See NIHRL ‘ Communiqué de l’institution nationale des droits de l’homme en Lybie’  ( Facebook , 8 July 2023) < https://www.facebook.com/story.php?story_fbid=pfbid022EVp9ksU1tAcPpfaJYcEUG33Bq3EeZQp2FwJTnUjJWWnQAbRCnSVMqvyfnqwzNeRl&id=100068959756519&mibextid=Nif5oz&paipv=0&eav=Afbf3MJGVJ-A_nfDvoV52gN61YQZ6zTd_L6vnuqs_Fqk5CB-a62J9hkg5AeGCN97u7Q&_rdr >  accessed 24 February 2024. [38]  Nadjib Touaibia, ‘Tunisia: Fati and Marie, victims of Kaïs Saïed’s racist policy’ ( L’Humanité , 2 August 2023) < https://www.humanite.fr/monde/tunisie/tunisie-fati-et-marie-victimes-de-la-politique-raciste-de-kais-saied-804963 > accessed 24 January 2024. [39] Khaled Tababi, ‘al-Mghaṭṭā Valley: An Open Space for Double Absence: A Story of Stranded and Forsaken Migrants at the Margins of the State’ ( FTDES , 27 July 2023) < https://ftdes.net/migration-mgatta/ > accessed 1 May 2024. [40]   ibid 38. [41]   ibid 47. [42] World Organization Against Torture, ‘Les Routes de la Torture: Cartographie des violations subies par les personnes en déplacement en Tunisie’ ( OMCT , 2023) < https://omct-tunisie.org/wp-content/uploads/2023/12/Migration-et-torture-Finale-Planches-.pdf > accessed 1 May 2024. [43] l  ‘الطرد الى الحدود البرية والصّدّ بالقوة في البحر تعزيزا ‘للحصن’ الأوروبي’ ( FTDES , 6 December 2023) < https://ftdes.net/ar/expulsion-aux-frontieres-et-pushback-en-mer-pour-promouvoir-la-forteresse-europeenne/ > accessed 24 January 2024. [44]   ‘Statistique Migration’ ( FTDES , 9 November 2023) < https://ftdes.net/statistiques-migration-2023/ > accessed 24 January 2024. [45]  See ‘ رصد وسائل التواصل الاجتماعي في تونس: تطور المعلومات المضللة وتنظير المؤامرة حول المهاجرين من جنوب الصحراء ’  < https://drive.google.com/file/d/1etYGrDPlnBy7QaLWGGy2UsFNZJ06nKqO/view?fbclid=IwAR1JcbPA-v-rYA_FxZkmWhsfHaBp4DzKXwqg4tEnQeAVioZqaMdtHH9GkzY > accessed 24 January 2024. [46] l  ‘خطابات الكراهية والعنصرية تشجّع على القتل’ ( FTDES , 25 May 2023) < https://ftdes.net/ar/les-discours-haineux-et-le-racisme/ > accessed 24 January 2024. [47]  See < https://www.diplomatie.gov.tn/memorandum?fbclid=IwAR1QPNHEMn_i6QSU_gcz8_vojXtEbi-bi1jn2M5SIgNZIBZOae3z_HPma4c > accessed 24 January 2024.   [48] Quoted in Larissa Tschudi, ‘اتفاقية الهجرة بين تونس والاتحاد الأوروبي لن تحل أي مشكلة’ ( Swissinfo , 19 July 2023) < https://www.swissinfo.ch/ara/business/-%D8%A7%D8%AA%D9%81%D8%A7%D9%82%D9%8A%D8%A9-%D8%A7%D9%84%D9%87%D8%AC%D8%B1%D8%A9-%D8%A8%D9%8A%D9%86-%D8%AA%D9%88%D9%86%D8%B3-%D9%88%D8%A7%D9%84%D8%A7%D8%AA%D8%AD%D8%A7%D8%AF-%D8%A7%D9%84%D8%A3%D9%88%D8%B1%D9%88%D8%A8%D9%8A-%D9%84%D9%86-%D8%AA%D8%AD%D9%84-%D8%A3%D9%8A-%D9%85%D8%B4%D9%83%D9%84%D8%A9-/48667484 > accessed 24 January 2024. [49] l  ‘في تونس، يكرر الاتحاد الأوروبي خطأ قديمًا وخطيرًا’ ( Amnesty International , 25 September 2023) < https://www.amnesty.org/ar/latest/news/2023/09/in-tunisia-the-eu-is-repeating-an-old-and-dangerous-mistake/ >  accessed 24 January 2024. [50]   ‘Mémorandum UE-Tunisie : l’Union européenne approuve les rafles, les expulsions illégales et la violence à l’encontre des migrants’ ( FTDES , 20 July 2023) < https://ftdes.net/memorandum-ue-tunisie-lunion-europeenne-approuve-les-rafles-les-expulsions-illegales-et-la-violence-a-lencontre-des-migrants/ > accessed 24 January 2024.   [51] Khaled Tababi, ‘Le Mémorandum entre la Tunisie et l’Union Européenne : vers un Renforcement de la Dépendance, de L’autoritarisme et de l’Europe Forteresse ?’ ( European Council on Refugees and Exiles , 2023) < https://ecre.org/wp-content/uploads/2023/12/ECRE-Working-Paper-20_Le-Memorandum-entre-la-Tunisie-et-lUnion-europeenne.pdf > accessed 1 May 2024. [52] l  ‘التضييق على التضامن مع المهاجرين.ات تمهيدا للتجريم’ ( FTDES , 24 March 2024) < https://ftdes.net/ar/solidarite/ > accessed 24 January 2024. [53] l  ‘روما ولندن تتفقان على تمويل’ مشروع لإعادة المهاجرين العالقين في تونس إلى أوطانهم’ ( Info Migrants , 18 December 2023) < https://www.infomigrants.net/ar/post/53949/%D8%B1%D9%88%D9%85%D8%A7-%D9%88%D9%84%D9%86%D8%AF%D9%86-%D8%AA%D8%AA%D9%81%D9%82%D8%A7%D9%86-%D8%B9%D9%84%D9%89-%D8%AA%D9%85%D9%88%D9%8A%D9%84-%D9%85%D8%B4%D8%B1%D9%88%D8%B9-%D9%84%D8%A7%D8%B9%D8%A7%D8%AF%D8%A9-%D8%A7%D9%84%D9%85%D9%87%D8%A7%D8%AC%D8%B1%D9%8A%D9%86-%D8%A7%D9%84%D8%B9%D8%A7%D9%84%D9%82%D9%8A%D9%86-%D9%81%D9%8A-%D8%AA%D9%88%D9%86%D8%B3-%D8%A7%D9%84%D9%89-%D8%A7%D9%88%D8%B7%D8%A7%D9%86%D9%87%D9%85 > accessed 24 January 2024. [54] l  ‘المحكمة الأوروبية لحقوق الانسان تدين الحكومة الايطالية’ ( FTDES , 31 March 2023) < https://ftdes.net/ar/hudoc/?fbclid=IwAR3V_GsgAqqUM07BuzHqyloJHPyi8EqNL0qJ0jtvVyp6j78UDKGpWdC9j6Q > accessed 24 January 2024.

  • Precarity Squared: The Intersectional Lived Experiences of African Transgender Migrants in Sweden

    Abstract   Sweden is globally considered not only a country with generous refugee reception policies but also a leading example of equality and respect for LGBTQ rights. The country recognises, for example, Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC) as legitimate grounds for asylum protection, via the Sweden Aliens Act (2006). This study seeks to understand the lived experiences of trans-African migrants’ integration process in Sweden . Data is gathered from three in-depth semi-structured interviews with diverse trans refugees. The heuristic model of integration processes was used for data analysis focusing on the structural, social and identity dimensions through an intersectional lens. Participants revealed experiences of intersectional discrimination, bias, and prejudice in the structure and social dimensions while accessing healthcare systems and the labour market, which led to increased insecurity from unstable income and housing, isolation from local ethnic migrant networks or family transnational ties, and inadequate support from LGBTQ organisations, which further impacted their sense of belonging. Yet, despite it all, they share a sense of agency, resilience, and hope.   Introduction   In many parts of the world, LGBTQ communities face persecution from both state and non-state actors due to strict cultural and gender norms. However, it is often trans people who are particularly vulnerable to discrimination, stigma, and violence in both public and private spheres. Consequently, many are often forced to seek safety and protection in other countries. LGBTQ refugees are amongst one of the fastest-growing migrant populations in the world, and the past decade has witnessed a drastic increase in the number of individuals claiming asylum based on sexual orientation and gender identity and/or expression.   The topic of LGBTQ refugees has been a staple for scholars globally: studies have focused on mental health,[1] post-migration challenges, the asylum process,[2] and perceptions of home and belonging.[3] The body of work related to the experiences of trans refugees is, however, still relatively small.[4] The emerging literature in this field leverages perspectives drawn from legal, psychological, and gender approaches, highlighting the need for a deeper understanding of their unique challenges and perspectives.   In Europe, studies on LGBTQ refugees’ mental health, the asylum process, and integration have begun to emerge,[5] yet few scholars have also focused exclusively on trans people in the asylum-seeking process. These studies have revealed continued experiences of isolation, discrimination, and vulnerability. For instance, scholars have argued that although LGBTQ ‘migrants/refugees’ may have fled from danger and injustices in their home countries, they still remain ‘unfree and isolated outsiders’ in their new country of residence. This is particularly true for trans people, who have reported feeling ‘insecure’ and ‘unsafe’ in both institutional settings of asylum and healthcare. Studies also revealed that participants experienced incessant threats to their human rights due to experiences of institutional discrimination by asylum authorities and in the labour market. They also face racial and social prejudice, which increases feelings of victimisation.[6]   Contrary to research that focuses on narratives of victimhood and persecution, other studies have highlighted the agency and resilience of LGBTQ refugees. Findings show that despite their challenges and traumas during the integration process, LGBTQ refugees exhibit a sense of agency and resilience and employ subjective coping strategies.[7] Alessi, for example, has investigated resilience in sexual and gender minority-forced migrants resettled in the United States and Canada, finding that ‘spiritual upkeep’ played a key role in strengthening resilience. Alessi concluded that although LGBTQ migrants are a vulnerable group,   they do not fail to acknowledge their resilience and own strengths to cope with challenges faced during resettlement in the host country.[8] This is worth further exploration in Sweden to understand the subjective strategies transgender migrants with intersecting identities leverage to cope with their integration process experience.   Compared to other countries in the EU, Sweden has a generous asylum system dating back to the 1970s and 80s, welcoming those seeking protection from persecution and wars in countries such as Chile, Somalia, and Morocco.[9] This was also evidenced in 2015 when Sweden was one of the countries which welcomed a high number of asylum seekers.[10] In connection with providing asylum to LGBTQ individuals, Sweden has opened its doors with the promise of equality, security, and safety for LGBTQ people wanting to freely express their gender identity. Sweden has globally positioned itself as an LGBTQ-friendly country, being a signatory to a wide range of international instruments that catalogue the fundamental rights of LGBTQ people, and has been amongst the top countries that continuously recorded the ‘highest proportion of respondents expressing acceptance of LGBTQ rights in Europe’. Additionally, Sweden ranks amongst the top countries that protect trans rights and has enacted anti-discrimination laws for trans persons in housing, healthcare, education, goods and services, and housing.[11]   Though a small body of qualitative research is emerging in Sweden that focuses on LGBTQ refugees,[12] very few studies have been conducted on trans individuals. Limited studies have explored the settlement experiences of LGBTQ migrants, let alone focusing exclusively on analysing the situation of transmigrants who have particular needs and challenges.[13] A notable government-commissioned inquiry into the general situation of trans persons highlighted how many trans people experienced heightened precarity, violence, and insecurity when accessing various public institutions and public spaces as well as securing permanent housing. The report recommends further intersectional investigation into the experiences of trans people, particularly those who have experiences of being ‘racialised’ in Sweden.[14]   Given this background, an understanding of transgender migrants’ lived experience is of great significance. This study thus examines how LGBTQ migrants experience their integration process in Sweden, a country in which the Aliens Act (2006) recognises Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC) as legitimate grounds for asylum protection. We examine the integration experiences of LGBTQ migrants in Sweden, with a particular focus on African transgender individuals with migrant status. The integration framework used in this research is based on the heuristic model proposed by Spencer and Charsley, which conceptualises integration as a multi-dimensional and multi-directional process. Unlike traditional models that imply a fixed or desired end goal (such as full assimilation), this model understands integration as an ongoing, dynamic process influenced by interactions across various domains, including structural, social, cultural, and civic spheres.[15]   A key feature of this model is its emphasis on the non-linearity of integration, whereby different aspects of individuals’ lives, such as employment, social networks, or access to service do not develop in a uniform manner. Instead, progress in one dimension may lag or advance independently of others. Additionally, the model accounts for the interconnectedness of society, recognising that the boundaries between different groups are porous, and interactions between migrants and host societies are shaped by both local and transnational factors. Furthermore, the model’s multi-directional nature allows for a nuanced analysis of how both migrants and the host society adapt and change through these interactions. Rather than viewing integration as a one-way process in which migrants must adapt to pre-existing societal norms, this approach allows for a more fluid understanding of how migrants contribute to and reshape the societies they enter. This is especially relevant for LGBTQ migrants, whose social positions and experiences may challenge existing cultural norms in both migrant and host communities.   According to this model, integration processes take place within five dimensions: social, structural, cultural, identity, and civil and political participation. Of central importance to the present study are the social, structural, and identity-related dimensions, described by Spencer and Charsely as follows: ‘ Structural—  as in participation in the labour and housing market, education and health systems; Social —as in social interaction, relationships, and networks; […] Identity— the processes through which individuals of differing backgrounds may develop a shared identity and sense of belonging with the place, nation, communities and people among whom they live’.[16] I focus on these three dimensions to better understand the lived experiences of transgender migrants’ integration process, always bearing in mind that integration is not a compartmentalised process, but that in real life, these dimensions are often interlinked.   Spencer and Charsley designate as ‘effectors’ factors that influence the integration process by either enabling engagement or hampering it.[17] This study will similarly explore how individual, family, and societal ‘effectors’ such as language ability, care responsibilities, or job opportunities impact the integration of LGBTQ migrants in Sweden. By examining these effectors, it seeks to uncover how social structures and personal circumstances interact to facilitate or hinder integration. For example, a transgender migrant’s access to housing may be shaped by local attitudes towards gender diversity, while their ability to find employment may depend on the intersection of social capital, language proficiency, and institutional policies.   Additionally, an intersectional approach, as pioneered by Kimberlé Crenshaw, is used to identify the ‘structural and social contexts and norms that intersect to create structures of oppression and privilege for groups and individuals’.[18] This approach acknowledges that people’s lives are ‘multi-dimensional and complex, and their lived experiences are shaped by the interaction of intersecting identities, contexts, and social dynamics’.[19] By exploring the intersectionality of gender, migrant, and racial positions through this lens, we can gain a more nuanced understanding of how African transgender refugees experience their integration process in Sweden.   Analysis discussion and findings The analysis, following the methodology outlined above, revealed four main themes from the interviews: Intersectional discrimination, Insecurity, (Un)belonging, and Resilience and Hope. Core themes that will be presented were prominent in all interviews, although the perspectives provided in them differed.   Theme One: Intersectional discrimination   The theme of intersectional discrimination featured prominently in participants’ descriptions of their experiences of the integration process. It was apparent that their intersecting and ‘multiple historically marginalised social positions’ as transgender and black migrants made them more vulnerable to ‘intersecting forms of oppression’.[20] However, there were variations in individual experiences in structural, social, and identity dimensions, attributable to individual additional intersecting social positions.   Structural dimension:   Participants shared narratives that consistently underscored the theme of intersectional discrimination. As black trans refugees, they have several intersecting social positions, placing them in a position of increased vulnerability to what Crenshaw described as ‘intersecting forms of oppression’. In this section, I will examine these intersections through the lenses of the labour market, as well as health and social services.   Labour market:            A major area in which African transgender migrants experience discrimination and stigmatisation is in the labour market.   Magret, a black trans woman and a refugee, was initially cautioned by her social worker, who told her about the reluctance of Swedish employers to hire trans migrants. Her social worker cited the perceived costs and legal concerns associated with employing trans individuals. In Magret’s words, ‘[the social worker] said employers complained that it was costly because, in many cases, trans people came without experience and were only focused on their transition and taking employers to court for unfair treatment […] So many companies were just uncomfortable hiring trans people’. Magret’s perception here is that the feedback from the social worker was valid, given the barriers she was encountering in the labour market. In Magret’s understanding and experience, the social worker felt employers exhibited discriminatory hiring practices. Scholars have linked such stigma to work related transphobia, which creates barriers to employment and financial wellbeing for transgender individuals.[21]   The transphobia experienced in the workplace extended beyond their interactions with employers and infiltrated their relationships with fellow migrant co-workers. Magret shared instances where she was verbally abused by co-workers who perpetuated stigmatisation. She described her working conditions, stating, ‘I remember, I had a job of cutting grass in the summer […] people who were also working were busy gossiping like you know those are transgenders. They were saying all those nasty words about transgender, and these are fellow immigrants from different countries […] (laughs), you struggle. It wasn’t easy!’.   Another participant, Dan—a black trans man with a refugee background—pointed out that he faced homophobia from migrant co-workers who assumed he was gay. Trans people faced extreme hostility not only within the labour market but also within their migrant community; the experiences shared by Magret and Dan serve as a poignant reminder of how co-workers, who on the surface shared similar migrant backgrounds and held low-skilled positions, perpetuated stigmatisation of other forms. This interconnectedness of the oppressions that participants experienced in the workplace also reveals that these injustices emanated from multiple sources within the labour market. As highlighted in a report by the European Union Agency for Fundamental Rights (FRA), trans individuals experience ‘structural discrimination’, which culminates in their marginalisation and exclusion from stable, formal employment.[22] Magret and Dan’s comments also align with Spencer and Charsley’s assertion that ‘employers’ or neighbours’ perceptions of migrants’ identities may influence their social and work opportunities’.[23]   Health and social services   Studies conducted in Sweden have consistently revealed how intersectional discrimination in the labour market contributes to a state of precarious employment, poverty, and poor mental health.[24] These findings align with the socioeconomic positions of our participants, which are further highlighted in their encounters with social welfare services. Experiences of transphobia have been found to impact multiple facets of life, including education, health care, and access to credit, further affecting trans people’s integration process and well-being.[25] The following focuses in greater detail on participants’ access to healthcare and social services.   Participants provided detailed accounts of transphobia in healthcare settings, recounting instances of deliberate misgendering and the disregard of their chosen names and pronouns by medical personnel. Dan, a trans man with unique healthcare needs due to his birthing experience, narrated the challenges he faced while accessing healthcare services, particularly during the pre-and post-natal period. His experiences were characterised by feelings of being disrespected, where his requests to be called ‘papa’ and referred to with masculine pronouns were consistently ignored. In Dan’s words: ‘They said we go with what’s on your personal number. At that time, I had not yet changed my gender marker. Even my own Barnmörska (midwife in Swedish) never respected my gender identity. I felt so angry and hopeless. I never felt like a transman during this experience’.   Likewise, Dan’s experiences extended to the local clinic, where he felt unsafe due to transphobic treatment by nurses. The nurses deliberately misgendered him and referred to him as ‘mother’ in front of other parents, a situation that compelled Dan to withdraw from these gatherings. These experiences serve as a striking example of how negative treatment and disrespect due to gender identity adversely affects access to crucial services, ultimately reinforcing feelings of isolation and alienation.   Dan’s emotional account of a recent hospital stay highlights the profound impact of transphobia on his well-being. His vulnerability and sense of humiliation were palpable as he described an incident where a nurse treated him unfairly because of his trans identity. His harrowing experience in the hospital, as Dan described, involved being bathed by a nurse who displayed a visible disgust at the sight of his naked body. Dan, in a vulnerable moment, shared, ‘It was bad […] you know, like somebody showering you like you got [expletive] on your body, she looked disgusted seeing my naked body. Do you understand? This treatment was so heart-breaking. I remember crying to myself. I’m like, why am I passing through this’.   The compounded effect of Dan’s racial identity made him even more susceptible to discrimination. In a poignant reflection on his experiences, Dan stated, ‘There is a type of discrimination that you cannot even explain to somebody, saying this is discrimination. But you know that if I were somebody different or identified myself differently, I wouldn’t face this kind of challenge. So, on many occasions until today, the system failed me because I was a black trans man. As black trans men, we are still facing what white people don’t face […] If I were different in colour, I would be treated better’. This powerfully captures how Dan’s experiences were shaped by the intersectionality of his gender identity and race, intensifying the discrimination he faced.   Experiences of discrimination in healthcare also extended to Magret’s accounts. When Magret needed to enter rehab, she faced many barriers due to her gender and racial social positions. She discovered that no place was willing to accommodate ‘a black, let alone trans, English-speaking person’. She highlighted that it took over five months before her social worker could secure a place that was considered ‘trans-friendly’. Even during her stay in rehab, Magret said she was still confronted with stigma and abusive language from her white peers, who used demeaning and derogatory language to belittle her. These experiences of racial prejudice were distressing, and Magret characterised her time in rehab as ‘my worst experience’. She went on to express that she wouldn’t encourage another trans person to go through a similar ordeal, given the potential emotional toll, saying, ‘I cannot really encourage another trans person to go through it because you might get out of rehab and commit suicide. It’s possible!’ Magret’s account highlights the intersectionality of the ‘oppressions’ she experienced. Even in a rehab setting, among individuals who are part of a minority and often stigmatised group, her presence triggered racially abusive language from a fellow patient. In sum, Dan and Magret’s reflections illuminate how experiences of racism and transphobia on the basis of intersectional identities had cascading effects, permeating various aspects of their lives and influencing their integration process.   Social dimension:     The social dimension encompasses interactions, relationships, and networks. Experiences within this sphere predominantly revolve around engagement in broader society, as well as participation within ethnic migrant and home country diaspora communities.   Broader society     Participants recounted instances of encountering racial and transphobic prejudice when navigating society. They expressed feeling the weight of both stigma related to their gender identity and racial discrimination. For instance, Magret and Vilma, both black trans women and refugees, shared their encounters with racial discrimination in public spaces. However, their experiences diverged significantly. Unlike Vilma, Magret openly expressed her gender identity. She vividly described her daily ordeal: ‘Being a trans woman of colour requires an immense amount of courage just to step out of your house […] People often acknowledge the challenges of being black in Sweden or Europe, but when you’re also trans, the struggle intensifies!’   Furthermore, participants highlighted that they confronted discrimination and stigma even within their home country’s diaspora and ethnic migrant communities. As one participant candidly stated, ‘I avoid gatherings with black people because I know that the transphobia emanating from our own community cuts deeper than the prejudice from white individuals’. Dan revealed that he had been excommunicated from the church after his gender identity became known. The pastor convened a meeting and informed him that he needed to be spiritually reborn. In the interim, he was requested to cease attending while they deliberated on how to ‘assist’ him. Even when Dan attempted to conceal his gender identity primarily for safety, once it was discovered by the church leadership, he became an outcast within the religious community, compounding broader experiences of marginalisation and isolation, leading them to feel ‘invisible, socially ostracised, and subjected to discrimination’.[26]   Theme Two: Insecurity   Another significant theme connected to the experience of intersectional discrimination is a prevailing sense of insecurity. The individuals I interviewed shared their experiences of dwelling in precarious circumstances due to the absence of a stable, consistent income, suitable housing, and dependable support networks, across both structural and social dimensions.   Structural Dimension:   Labour Market   Insecurities emanating from not having a stable job and income featured prominently in participant’s experiences. They described their precarious situations, reliant on meagre support from the social welfare services, which they felt ‘infantilised’ them and ‘regulated’ their lives. Vilma, an unemployed, not educated black trans refugee woman who mentioned never finding employment in Sweden, lamented that: ‘At this moment, my home contains only rice, and the money they provide is meagre. Nevertheless, they burden us with many issues for this sum’. The experiences of these participants unveiled their status as the ‘new underclass: a minority within a minority’.[27] Scholars have highlighted that ethnic enclaves, local and transnational ties, and families are sources of social capital that can facilitate access to resources in host countries.[28] However, my interlocutors avoided such networks, fearing exposure and retribution due to their gender social positions.   In alignment with others, Dan recounted how experiences of insecurity and uncertainty about the future pushed him to the brink, leading to a suicide attempt. He shared, ‘At one point, my emotional struggles overwhelmed me. I found myself in a situation where I contemplated ending my life. Social services were pursuing custody of my child, and I lacked a stable residence, a steady income, or anyone to confide in’. Dan eloquently conveys the web of insecurities he grappled with, including homelessness, unemployment, and single parenthood without a support network or safety net to fall back on. The participants’ experiences of insecurity due to joblessness and homelessness align with findings in Sweden by SOU, which highlighted that transgender individuals, compared to cisgender counterparts, face ‘higher unemployment, lower incomes, and increased poverty and homelessness’.[29]   Housing   All participants emphasised feelings of insecurity regarding housing. They noted that without a stable job and income, finding secure housing became nearly impossible. Dan shared a personal experience, saying, ‘When I was identified as female, they protected me, made sure I was in a safe place and provided their home to me. But once I started transitioning, they left me alone. The system failed me because I was a black trans man. However, before, when I was a black woman with a child, they helped me. But now, as a black trans man with a child, the only thing they did was to fight me, break me, and try to take my child from me’.   In this account, Dan vividly portrayed his sense of being unfairly treated due to intersecting social positions as a black trans man. The impact of unstable income and homelessness among trans people has been documented in Europe.[30] Furthermore, the lack of stable income and homelessness has been associated with mental health challenges among transgender individuals in Sweden, as highlighted by Breight and Larsson.[31]   Healthcare   Participants described having different mental health problems, such as depression, anxiety, and alcoholism. These experiences have also been pointed out by other scholars: Golembe et al, for example, found that post-migration LGBTQ refugees encounter re-traumatisation, social isolation, and increased mental health burdens.[32] Magret pointed out that being compelled to stop hormonal treatment by the gender clinic and having to wait for two years for the official process to begin had also increased her insecurities about her body and sense of self: ‘When I came here, I was already on hormones for two years, but here they said I need to stop. Nobody even thought about the withdrawal effects. I think that’s why I started taking more alcohol because I was like very angry, even today I have many insecurities as a transwoman’.   This experience shows how Magret’s insecurities are connected to the intersection of her gender identity and migrant social positions. While other migrant cisgender women might have insecurities, she needs access to hormones to feel more aligned and secure with her body. To be given access to state funded treatment, she needs to follow the legal regulations of the gender clinic. Spencer and Charsley’s model could also consider that in relation to the identity dimension belonging is not only about ‘a shared sense of being part of a diverse community’, but also about feeling a sense of belonging in your body .[33] In the above discussion on experiences of insecurity in the structural dimension, participants’ experiences revealed a complex, non-linear interlink between experiences within the same structural dimension as joblessness and homelessness also impacted on mental health.[34]   Social dimension:   Networks and relationships   A recurring concern centred on the increased precarity stemming from the absence of support networks and non-existent familial relations. Dan and Vilma, for example, expressed apprehension about disclosing their gender identity to unfamiliar individuals. They also recounted feelings of insecurity, characterising themselves as ‘isolated’ and ‘alone’, lacking significant local support from friends, families, migrant communities, or other LGBTQ organisations.   Participants highlighted that LGBTQ groups proved beneficial for those still seeking asylum, yet there was a dearth of support for transgender individuals facing precarious situations, particularly refugees, once they had obtained residency permits. As Dan pointed out, ‘We don’t know where to go; there are no organisations like the women’s organisations that offer safe homes for women. We don’t have safe homes for trans people. We lack an emergency number for trans people to call; we don’t have any support beyond the LGBTQ organisations. However, these organisations do not address such cases unless you are an asylum seeker. Real-life struggles emerge after the asylum, and regrettably, you face them alone’. This echoes the observations of other scholars, who have noted that transgender refugees ‘find themselves with rights but without community or home, and so unable to fully actualise these rights’.[35]   Theme Three: Un(belonging)   As described by Spencer and Charsley, the dimension of identity revolves around ‘the diverse experiences of individuals sharing an identity and a sense of belonging with the place, nation, communities, and people they live among’.[36] Participants’ reflections in the present study revealed that they did indeed experience a sense of belonging to local communities in Sweden in various ways. Interestingly, they all connected their sense of belonging to very intimate and personal spaces and individuals, underscoring how intersectional discrimination and insecurities profoundly impact one’s sense of belonging.   While Dan and Magret mentioned their involvement in LGBTQ organisations, they also expressed feelings of being ‘tokenised’ and ‘invisible’, believing that their voices and issues were not accommodated. This made them feel like an ‘outsider’, as Dan further elaborated: ‘I attended one group meeting, people were in little cliques, gays on their own, lesbians etc, and I was just alone as trans. Where is the sense of belonging in that?’ Magret also echoed similar sentiments when describing her experience: ‘Some organisations just want you to be on the board to be a flower […] we’re just being put there, you discover when decisions are being made that you just, you’re just a flower. They just wanted a black trans woman on the board’. This illustrates how individuals can be formally included in these spaces while simultaneously experiencing a sense of not belonging. Notably, in this case racial and gender social positions serve as both ‘axes of privilege’ granting inclusion in these spaces and contribute to feeling ‘tokenised’. Such reflections by participants about feeling isolated, unsupported, and having no sense of belonging to communities in Sweden, and in particular to LGBTQ organisations, challenge the findings of Konstenius et al, who emphasised that LGBTQ refugees in Sweden experienced a sense of belonging, safety, and improved health and well-being through participation in LGBTQ organisations, creating a supportive community.[37]   Theme Four: Resilience and hope     Despite these challenges, participants exhibited a remarkable sense of agency, resourcefulness, and a strong desire to enhance their lives and the lives of others. They explained how these difficulties fuelled their determination. Notably, they expressed their aspirations to pursue higher education and meaningful careers. As Vilma elaborated: ‘I want to be to be a vårdgivare (nurse) and help old people. I hope to get a decent salary […] support my mom, and make investments for the future’. As further testimony of her resilience and sense of agency, Magret said despite all the challenges she faces, she continues to show up for other trans asylum seekers, and she is now in the process of creating social spaces for youth, refugees, and migrants who are trans and non-Swedish speaking.   These insights align with the findings of other researchers, who have highlighted the resilience demonstrated by LGBTQ migrants in the face of adversity.[38] However, unlike in the work of Alessi, in the present study there was no indication that the participants’ resilience was linked to ‘spiritual practices’.[39] Instead, participants demonstrated a significant sense of agency by actively striving to change their circumstances, including pursuing further education. It’s also worth mentioning that, even if they did not necessarily feel a strong sense of belonging within various local communities, they remained eager and ready to contribute to the broader society.   Conclusion   This study aimed to gain insights into the real-life experiences of transgender African migrants. It sought to understand the challenges they face in their integration process within Sweden in relation to their gender, racial, and migrant social positions. This study utilised the heuristic model of integration processes proposed by Spencer and Charsley, to examine the structural, social, and identity dimensions through an intersectional lens.   Sweden, often perceived as a progressive and inclusive destination for LGBTQ migrants, presents a different narrative when delving into the genuine experiences of trans migrants at the crossroads of various social positions. This study revealed that the lived experiences of trans-African migrants in Sweden are characterised by intersectional discrimination due to their gender identity, race, and migrant social positions. These discriminatory experiences manifest in the structural dimension, impacting their access to healthcare services and the labour market. Simultaneously, this infiltrates the social dimension, affecting interactions within broader society, as well as in their home country diaspora and African communities. Consequently, this leads to a heightened sense of insecurity and precarity from unstable incomes, uncertainty and discomfort in healthcare settings, and the fear of unveiling one’s gender to strangers. Moreover, these experiences take a toll on participants’ mental well-being. Socially, trans-African migrants find themselves isolated from transnational family connections, isolated within their home country diaspora and migrant communities, and often lacking the support of local LGBTQ organisations. These factors have a profound impact on their sense of self, as well as their sense of belonging. However, despite these challenges, participants exhibit agency, resilience, and optimism. Miles Tanhira Miles Rutendo Tanhira is a Zimbabwean-Swedish International Migration researcher and Founder of Queerstion Media. He is a peace and LGBTQI+ rights activist and a core team member of the European Coalition of Migrants and Refugees. His achievements include being one of the recipients of the European Parliament´s Intergroup on LGBTQI+ rights' Go Visible Award and being selected as one of the Human Rights Campaign´s Global Innovators. He has served on several voluntary boards, including the War Resisters International (WRI) from 2010-2019 where he contributed to the Handbook for Non-Violent Campaigns 2nd edition. Miles is also a committee/forum member of the European Philanthropic Initiative for Migration and a certified speaker for the UNHCR Speakers Programme 2024. Additionally, he is an AI ethicist with a keen interest in the intersection of migration and AI technologies. [1] Edward J Alessi and Sarilee Kahn, ‘A framework for clinical practice with sexual and gender minority asylum seekers’ (2017) 4(4) Sexual Orientation and Gender Diversity 383; Nate Fuks et al, ‘Acculturation Experiences Among Lesbian, Gay, Bisexual, and Transgender Immigrants in Canada’ (2018) 46(3) The Counseling Psychologist 296. [2] Edward J Alessi et al, ‘Traumatic stress among sexual and gender minority refugees from the Middle East, North Africa, and Asia who fled to the European Union’ (2018) 31(6) Journal of Traumatic Stress 805-815; Susan SY Li, Belinda J Liddell, and Angela Nickerson, ‘The Relationship Between Post-Migration Stress and Psychological Disorders in Refugees and Asylum Seekers’ (2016) 18 Current Psychiatry Reports; Matthew Porter and Nick Haslam, ‘Predisplacement and postdisplacement factors associated with mental health of refugees and internally displaced persons: a meta-analysis’ (2005) 294(5) JAMA 602; Sarilee Kahn et al, ‘Facilitating Mental Health Support for LGBT Forced Migrants: A Qualitative Inquiry’ (2018) 96(3) Journal of Counseling & Development 316. [3] Katherine Marie Fobear, ‘Accordion homes: lesbian, gay, bisexual and trans (LGBT) refugees' experiences of home and belonging in Canada’ (Univesity of British Columbia PhD Thesis 2016). [4] Edward Ou Jin Lee et al, ‘Knowledge and Policy About LGBTQI Migrants: A Scoping Review of the Canadian and Global Context’ (2021) 22(3) Journal of International Migration and Integration 831; Zoë Korten, ‘Queer Migration Perspectives: Identity construction and experiences of social inclusion and exclusion of LGBTQ refugees in Sweden’ (Malmö University Masters Thesis 2019). [5] Jasmine Golembe et al, ‘Experiences of Minority Stress and Mental Health Burdens of Newly Arrived LGBTQ* Refugees in Germany’ (2020) 18 Sexuality Research and Social Policy 1049; Katrina Struthers, ‘LGBTI Refugee Protection in a Culture of Disbelief: The impact of integration’ (RLI Working Paper No. 50, 2020) < https://www.sogica.org/wp-content/uploads/2020/12/LGBTI-Refugees-UK-2020-RLI-Working-Paper.pdf > accessed 1 November 2024; Alexander Dhoest, ‘Learning to be gay: LGBTQ forced migrant identities and narratives in Belgium’ (2018) 45(7) Journal of Ethnic and Migration Studies 1075; Linda Piwowarczyk, Pedro Fernandez, and Anita Sharma, ‘Seeking Asylum: Challenges Faced by the LGB Community’ (2016) 19 Journal of Immigrant and Minority Health 723; Soumia Akachar, ‘Stuck between Islamophobia and Homophobia: Applying Intersectionality to Understand the Position of Gay Muslim Identities in the Netherlands’ (2015) 2(1-2) DiGeSt. Journal of Diversity and Gender Studies 173; Sabine Jansen and Thomas Spijkerboer, ‘Fleeing Homophobia, Asylum Claims Related to Sexual Orientation and Gender Identity in Europe’ (COC Netherlands and VU University Amsterdam, September 2011) < https://research.vu.nl/ws/portalfiles/portal/2903587/Fleeing+Homophobia+report+EN.pdf > accessed 1 November 2025. [6] Yvon van der Pijl et al, ‘“We Do Not Matter”: Transgender Migrants/Refugees in the Dutch Asylum System’ (2018) 5(1) Violence and Gender 1; Jutathorn Pravattiyagul, ‘Thai transgender women in Europe: Migration, gender and binational relationships’ (2021) 30(1) Asian and Pacific Migration Journal 79; Fau Rosati et al, ‘Experiences of Life and Intersectionality of Transgender Refugees Living in Italy: A Qualitative Approach’ (2021) 18 Int J Environ Res Public Health. [7] Rosati et al (n 6); Catrine Kostenius et al, ‘From Hell to Heaven? Lived experiences of LGBTQ migrants in relation to health and their reflections on the future’ (2021) 24(11) Culture, Health & Sexuality 1590. [8] Alessi and Kahn (n 1) 11; Edward J Alessi, ‘Resilience in sexual and gender minority forced migrants: A qualitative exploration’ (2016) 22(3) Traumatology 203. [9] Korten (n 4). [10] ‘Number of Refugees to Europe Surges to Record 1.3 Million in 2015’ (Pew Research Center, 2 August 2016) < https://www.pewresearch.org/global/2016/08/02/number-of-refugees-to-europe-surges-to-record-1-3-million-in-2015/ > accessed 1 November 2024. [11] See Korten (n 4) 16. [12] Korten (n 4); Debra Carroll-Beight and Markus Larsson, ‘Exploring the Needs, Expectations, and Realities of Mental Healthcare for Transgender Adults: A Grounded Theory Study on Experiences in Sweden’ (2018) 3(1) Transgender Health 88; Aino Gröndahl, ‘Reasons for Refusal in LGBTQI Asylum Cases’ (RSFL 2020). [13] Paulie Amanita Calderon-Cifuentes, ‘Trans Discrimination in Europe. A TGEU analysis of the FRA LGBTI Survey 2019’ ( TGEU , 2021) < https://www.tgeu.org/files/uploads/2023/11/TGEU-trans-discrimination-report-2021.pdf > accessed 1 November 2024. [14] Statens Offentliga Utredningar (SOU), ‘Transpersoner i Sverige: Förslag för stärkt ställning och bättre levnadsvillkor’ ( Regeringen.se , 2017) < https://www.regeringen.se/contentassets/3e2e892900fc4034a9d822413fdaefe7/transpersoner-i-sverige---forslag-for-starkt-stallning-och-battre-levnadsvillkor/ > accessed 1 November 2024. [15] Sarah Spencer and Katharine Charsley, ‘Reframing ‘integration’: acknowledging and addressing five core critiques’ (2021) 9 Comparative Migration Studies. [16] ibid 16. [17] ibid 17. [18] Kimberlé Crenshaw, ‘Demarginalizing intersections of race and sex: a black feminist critique of anti-discrimination doctrine, feminist theory and anti-racist politics’ (1989) 1(8) Chicago Legal Forum 139, 145. [19] Sandra Fredman, ‘Intersectional discrimination in EU gender equality and non-discrimination law’ ( EQUINET , May 2016) < https://www.equalitylaw.eu/downloads/3850-intersectional-discrimination-in-eu-gender-equality-and-non-discrimination-law-pdf-731-kb > accessed 1 November 2024. See also Sumi Cho, Kimberlé Crenshaw, and Leslie McCall, ‘Toward a Field of Intersectionality Studies: Theory, Applications, and Praxis’ (2013) 38(4) Signs 785. [20] Crenshaw (n 18) 140 [21] See Emily Bariola et al, ‘Demographic and Psychosocial Factors Associated With Psychological Distress and Resilience Among Transgender Individuals’ (2015) 105(10) Am J Public Health, 2108; Lauren Mizock et al, ‘Transphobia in the Workplace: A Qualitative Study of Employment Stigma’ (2018) 3(3) Stigma and Health 275. [22] European Union Agency for Fundamental Rights (FRA), ‘Being Trans in the European Union Comparative analysis of EU LGBT survey data’ (2014) < https://www.tgeu.org/files/uploads/2023/11/TGEU-trans-discrimination-report-2021.pdf > accessed 1 November 2024. [23] Spencer and Charsley (n 15) 18. [24] SOU (n 14). [25] Nick Drydakis,‘Trans employees, transitioning, and job satisfaction‘ (2017) 98 Journal of Vocational Behavior 1; Nick Drydakis, ‘Trans people, well-being, and labor market outcomes’ ( IZA , January 2024) < https://wol.iza.org/articles/trans-people-well-being-and-labor-market-outcomes/long > accessed 1 November 2024. [26] See Van Der Pijl et al (n 6). [27] Maggie O'Neill and Phil Hubbard, ‘Asylum, Exclusion, and the Social Role of Arts and Culture’ (2012) 12(2) Moving Worlds. [28] Sunil Budhiraja, Ujjwal Kumar Pathak, and Neeraj Kaushik, ‘A framework for untapped creativity: leveraging components of individual creativity for organizational innovation’ (2017) 31(6) Development and Learning in Organizations: An International Journal 7. [29] SOU (n 14) 45. [30] ibid; FRA (n 22). [31] Beight and Larsson (n 12). [32] Golembe et al (n 5). [33] Spencer and Charsley (n 15) 18 [34] ibid 16. [35] B Camminga, Transgender Refugees and the Imagined South Africa  (Palgrave Macmillan 2019) 227. [36] Spencer and Charsley (n 15) 16. [37] Kostenius et al (n 7). [38] Alessi (n 8), Rosati et al (n 6); Kostenius et al (n 7). [39] Alessi (n 8).

  • Conflict and Constitutionalism in Sudan: In Conversation with Abdelkhalig Shaib

    Abdelkhalig Shaib is a Sudanese attorney and member of the American and New York Bar Associations, who specializes in constitutionalism and advocates for the importance of upholding the rule of law in Sudan. He actively contributed to Sudan’s constitution-making process and fostered political accommodation within the nation. He is a founding member of the Arab Association of Constitutional Law. CJLPA : We would like to begin by thanking you for taking the time to interview with us. Your extensive career as a lawyer, in which you have spent substantial time focusing on constitutionalism and good governance, will provide a valuable perspective on pressing Sudanese issues. What is the importance of these factors with regard to Sudan?   Abdelkhalig Shaib :  One of the issues we face in Africa, particularly in Sudan, is the lack of governance, specifically good governance. We have never experienced political stability in Sudan since Sudan gained its independence from British-Egyptian rule in 1956. Sudan’s post-independence history has been marked by prolonged military rule, with nearly five of its six decades since independence dominated by military or autocratic governments. Independent Sudan began with high hopes for democratic governance. However, political divisions, regional disparities, and economic challenges quickly destabilized the nascent democracy. In 1958, just two years after independence, Sudan’s first democratic experiment was interrupted by a military coup, setting a precedent for repeated cycles of military intervention and brief, fragile civilian governments. The era of military rule in Sudan was disrupted by key figures, including Generals Ibrahim Abboud, Jaafar Nimeiri, Omar al-Bashir, and the most recent military leadership amid Sudan’s ongoing conflict. Each leader imposed authoritarian rule marked by centralized control, suppression of opposition, and reliance on security forces to maintain power. This military dominance impeded the development of civilian institutions and hindered attempts to establish sustainable democratic practices. Sudan’s brief democratic intervals in the mid-1960s and 1980s ended with military takeovers, reflecting a deep-seated pattern where political turmoil and economic crises often led to calls for military ‘stability’. Over time, these patterns consolidated the military’s political influence, making it difficult for civilian actors to achieve a lasting transition. Efforts at democratic governance, most notably following the 2019 ousting of Bashir, faced significant obstacles leading to the coup on 25 October 2021, which marked a significant setback for Sudan’s fragile transition toward democracy. Just two years after the popular uprising that led to the removal of long-time authoritarian leader Omar al-Bashir in 2019, Sudan’s military seized full control, dissolving the transitional government and detaining Prime Minister Abdalla Hamdok along with other civilian leaders. The military’s actions suspended the power-sharing arrangement between civilian and military forces, which had been established to guide Sudan toward democratic elections. One could say that the 25 October coup in Sudan is one of the main factors that set the stage for the devastating conflict that erupted on 15 April 2023. Following the coup, the military leadership dismantled Sudan’s fragile civilian-military partnership, intensifying political divisions and undermining efforts to build a stable democratic government. The coup exacerbated tensions within the military establishment itself, particularly between the Sudanese Armed Forces (SAF) led by General Abdel Fattah al-Burhan and the Rapid Support Forces (RSF) led by General Mohamed Hamdan Dagalo (Hemedti). Without a unified government, Sudan became embroiled in power struggles and factional rivalries, especially between the SAF and RSF, whose leaders held differing visions for Sudan’s future governance. Attempts to restore civilian rule and implement security sector reforms only heightened the rivalry, as each faction sought to solidify its influence over Sudan’s political and economic spheres. This escalated into open conflict on 15 April 2023, when fighting broke out between the SAF and RSF across major cities including Khartoum, leading to widespread violence, civilian casualties, and a massive humanitarian crisis. The ongoing conflict is rooted in the instability following the 2021 coup, as unresolved disputes and weakened civilian governance have left Sudan’s military factions vying for control, plunging the country into one of the most severe crises since its independence. This cycle has not only affected Sudan’s governance but has also had a profound impact on its society, fuelling conflicts, marginalization, and repeated economic hardships that the people of Sudan continue to endure today. Sudan’s history of incomplete democratic transitions has left it in a continuous quest for a permanent constitution, reflecting the country’s struggle to establish a stable, inclusive political framework. Each attempted transition, marked by brief democratic interludes interrupted by military coups, has prevented Sudan from enacting a lasting constitution that genuinely represents its diverse population. Military rule has often imposed temporary or provisional constitutional frameworks, which fail to address the deep-seated aspirations for representation, human rights, and federal governance. When examining constitutionalism in Sudan, this context of military dominance and stalled democratization is essential. Military regimes have typically shaped constitutional documents to entrench their power rather than to facilitate genuine civilian governance. As a result, Sudan’s path to a permanent constitution remains closely linked to its ongoing struggle for a sustainable civilian-led democracy, where constitutionalism could finally take root, free from the influence of military interventions. The constitution has become more of a draft document rather than a set of institutionalised principles. For constitutions to be effective, they need to be internalised in behaviour and require functional institutions across different branches of government including the executive, legislative, and judicial systems. The challenge lies in balancing power to achieve good governance and uphold constitutional principles. However, one of our main problems in Sudan is that we have been drafting constitutions reactively, in response to peace talks, negotiations, political unrest, or conflicts, rather than through a collective effort to move forward. Consequently, Sudan has long been in search of a permanent constitution which we have yet to achieve.   CJLPA : So the Sudanese constitutions are drafted for that particular moment in time?   AS :  Sudan’s constitutions have historically been transitory, drafted to address specific political needs or crises at a given moment rather than as part of a sustained, collective vision for the nation’s future. Each constitutional document has largely been reactive—crafted in response to immediate issues such as conflicts, military takeovers, peace negotiations, or transitional arrangements. These constitutions often cater to the demands of the dominant political or military actors of the time, lacking the broader consensus needed to unify Sudan’s diverse society around a shared national identity and set of enduring principles.   As a result, Sudanese constitutions have repeatedly fallen short of establishing a lasting framework that genuinely reflects the will of the people or supports long-term nation-building. This limited, issue-driven approach to constitutional drafting has left Sudan in a cycle of constitutional instability, where each document is soon replaced or disregarded, perpetuating the country’s quest for a constitution that could serve as a foundation for a lasting democratic order.   CJLPA : In 2013, you warned in an article titled ‘Is Sudan on the Brink of Another Civil War?’ of a potential slide into civil war if the government continued its suppression.[1] Can you say more about that?   AS :  In 2013, Sudan experienced what many referred to as its own ‘Arab Spring’, although the broader movement officially began in 2011. Unlike the Arab Spring in North Africa and MENA, which started in Tunisia and spread rapidly to Egypt, Libya, and beyond, the movement in Sudan followed a distinct path, culminating in widespread protests in September 2013. These protests were less focused on constitutionalism and more on demands for freedom of expression, a call for regime change, and a call for democratic elections. This period also came shortly after the historic secession of South Sudan in 2011, a breakpoint moment that significantly shaped Sudan’s political and social landscape.   CJLPA :  Looking at 2013, could anything have been done then to salvage the situation and come up with good constitutional principles?   AS :  From a constitutional perspective, the regime at the time could have demonstrated the political will to engage genuinely, inclusively, and comprehensively with citizens and political parties. The secession of South Sudan in 2011 presented a pivotal moment, especially as Sudan continued to operate under the 2005 constitution. This constitution emerged from negotiations between the Sudan People’s Liberation Movement (SPLM) and the ruling National Congress Party (NCP), led by the late John Garang and Omar al-Bashir, respectively. Their power-sharing agreement under the Comprehensive Peace Agreement (CPA) was incorporated into the 2005 constitution. Following South Sudan’s independence, however, there was a strong desire among Sudanese citizens and opposition parties for new constitutional arrangements that would reflect a post-secession Sudan. The expectation was that the NCP would be willing to engage in voluntary dialogue with civilian forces, making structural reforms to enable a multiparty system and lay the groundwork for genuine elections. Yet the regime, represented by the NCP, was unprepared to take these steps, resisting calls for an inclusive political transition and failing to seize the opportunity for a constitution that could reflect the aspirations of a redefined Sudan.   CJLPA :   I would like to fast forward to some of the issues in the current conflict, beginning with the 2019 revolt. These include human rights abuses and mismanagement of the economy. The revolt started in a very slow manner, beginning with issues related to the price of bread increasing. Is this curable through constitutional means? How does one go about it to reform such issues?   AS :  I would argue that the economic issues in Sudan were deeply tied to the broader political economy and the regime’s use of power to control and access resources. At its core, it was about corruption and a lack of transparency in resource appropriation and allocation, particularly in certain regions of Sudan. While it initially appeared to be a purely economic issue, it was fundamentally about freedom, liberty, and the need for genuine representation. The Sudanese people wanted the right to elect their representatives and participate in decision-making. These factors fuelled the movement—it was not just about access to basic needs like bread, but rather about broader issues of governance, transparency, and corruption, where the regime reaped benefits at the expense of the Sudanese people.   CJLPA : What I understand is that it is an issue of lack of inclusivity, especially for some regions like Darfur. It is akin to a total collapse of the rule of law. Coming from that, how can constitutional mechanisms serve as a tool for creating a more inclusive and accountable political environment?   AS :  We need to differentiate between two key aspects. There is no doubt that the 2019 Constitutional Charter had critical shortcomings, which have contributed to our current situation. These issues arose from both flaws in the document itself and the way it was implemented, as well as from the actions of those involved in its execution. The charter was neither faithfully nor genuinely put into practice, and the challenges extended beyond mere deficiencies in the document’s drafting.   One significant example is that the charter envisioned a functioning legislature or parliament within 90 days of its adoption. Instead, what emerged was an Executive branch (ie, the Cabinet) and a Sovereignty Council, which effectively operated in practical terms above the Executive. However, two essential elements were missing: the Parliament and the Constitutional Court. Those who expected a swiftly appointed (not elected) parliament appeared uninterested in actually establishing it, as a functioning parliament would have provided oversight over the government as an executive branch.   The 2019 Constitutional Charter included a provision stating that until the Legislative Council was formed, its powers would rest with the Sovereignty Council and the Cabinet, who would exercise them jointly, with decisions made by consensus or a two-thirds majority. This effectively left the executive and Sovereignty Council as de facto legislators, all in the absence of a Constitutional Court to advise on the legality and constitutionality of the laws. A Constitutional Court was never established as required by the charter.   Could the 2019 Constitutional Charter have been drafted better? Yes, but the challenges go beyond a well-written document. The issues are rooted in the structural and systemic deficiencies of the political system, far beyond the text of the constitution itself.   CJLPA : There was a lack of clear separation of powers.   AS :  The lack of separation of powers—or more accurately, the absence of political will—was a significant issue. Certain provisions were misapplied, while others went entirely unimplemented. For instance, the 2019 Constitutional Charter stipulated the establishment of a Constitutional Court, yet this never occurred. In the absence of a Legislative Council, laws were being drafted in joint sessions of the Sovereignty Council and the Cabinet, without the critical oversight of constitutional review. Without a Constitutional Court, there was no avenue for appealing these laws, which posed serious challenges. Additionally, there was a concerning overlap between the Sovereignty Council and the cabinet in managing day-to-day state affairs. The Sovereignty Council was intended to hold largely ceremonial powers, not to engage in the executive functions of governance. However, some members of the Sovereignty Council assumed executive roles, chairing key committees. For instance, Mohamed Hamdan Dagalo (Hemedti) headed both the peace commission and the Economic Committee, despite the fact that the prime minister, with an economic background, should have led the latter within the cabinet. This irony was always present, with Sovereignty Council members—often Hemedti or others—overstepping their intended roles. Such overlaps complicated the transitional process itself, adding layers of dysfunction to an already challenging period.   CJLPA :   Besides the peace agreements, the international community and state actors have been accused of hindering justice in Sudan. Can you shed more light on this?   AS : The warring parties in Sudan receive backing from various states within the region and beyond. In this conflict, both sides have openly accused different states of supporting their opponents. The Sudanese military, in particular, has frequently levelled accusations, adding strain to relationships with those allegedly involved. For example, the SAF accused Kenya when President William Ruto proposed deploying troops to protect civilians and ensure the flow of humanitarian aid. A prominent SAF General responded by accusing Ruto of seeking to occupy Sudan, going as far as to challenge Kenya to bring its forces and fight.   In another instance, the same General accused the UAE of supporting the RSF, further heightening tensions between Sudan’s de facto government and the UAE. Meanwhile, many claim Egypt is backing the SAF, with evidence cited to support these accusations. Such allegations—this country supporting one side, that country supporting another—greatly complicate peace efforts, as regional powers are deeply entangled. The UAE, for example, has close ties with the RSF, while Egypt maintains a strong relationship with the SAF. Unless these regional actors are brought to the negotiating table and agree to cease their support, achieving peace will remain challenging. This conflict could not have persisted without such regional support, which provides the warring parties with weapons and resources. As long as international powers do not hold regional actors accountable, the situation will likely continue, with tragic consequences. The UN Panel of Experts on Sudan has raised serious concerns regarding external support to Sudan’s warring factions. According to a recent report, there is evidence suggesting that the UAE has supplied weapons to the RSF with alarming frequency. The report alleges that shipments were made ‘several times per week’ via Amdjarass, a town in northern Chad, serving as a strategic entry point for the RSF’s supplies. These consistent arms transfers have reportedly enabled the RSF to sustain its operations, escalating violence and complicating peace efforts in Sudan. The UAE’s alleged involvement has intensified diplomatic tensions, as such support directly impacts the conflict’s longevity and severity, underscoring the need for stricter accountability measures to curb external interference that fuels the ongoing crisis.   Although the concept of ‘African solutions for African problems’ is valuable, bias among involved states complicates its effectiveness. As a Sudanese lawyer and African, I advocate for taking responsibility to address our issues, but we are far from achieving this. Our inability to intervene effectively allows our problems to become globalized.   The intense conflict that erupted in Sudan on 15 April 2023, between the SAF and the RSF, transcends a simple power struggle between two ambitious generals who had once aligned to stage a coup against the civilian government on 21 October 2021. This conflict is not merely a contest for dominance where the defeat of one leader signifies victory for the other. Instead, it represents a calculated and brutal campaign by the RSF, directed not only at the military but at civilians, leaving a devastating impact across Sudan. Women and girls, in particular, have borne the brunt of this aggression, facing heightened vulnerabilities and abuses as the violence intensifies. The conflict’s civilian toll underscores the need for urgent intervention and accountability for the atrocities committed against Sudan’s people.   CJLPA : Sudan has experienced numerous conflicts and major events, including the Second Sudanese Civil War (1983-2005), the 2019 revolt, and the recent 2023 conflict. From a governance perspective, how can we prevent such recurrences? What measures should be taken?   AS :   I believe the first step is to ensure that the military withdraws from political life and that mechanisms are put in place to prevent its involvement in the economy. Achieving this will require a structured dialogue with the military, similar to the long-term processes seen in Latin America, notably in Chile and Argentina. Additionally, political parties must engage in sincere, inclusive discussions involving all stakeholders to determine the most effective governance system for Sudan. These discussions should explore whether a presidential, parliamentary, or quasi-presidential system would be best suited to the country, as well as how to balance the executive branch with an independent judiciary.   The inherited Westminster model from British colonial rule may not be ideal for Sudan, given the large number of political parties and the difficulties of forming stable coalition governments. Considering alternative models, such as a presidential or quasi-presidential system, could offer greater stability and functionality. These are essential considerations for a viable path forward in Sudan’s political development.   CJLPA :   In moving forward and developing a constitutional system through constructive dialogue it is important to address Sudan’s Achilles heel, which is Darfur. The Darfur conflict has long plagued Sudan, marked by ongoing atrocities and humanitarian crises. How can the discussion on constitutionalism be integrated to address the Darfur question and highlight its significance?   AS :  I believe the issue of Darfur touches on several fundamental aspects of constitutionalism, including the Bill of Rights and the judiciary’s independence in prosecuting grave crimes committed by military personnel. It also involves addressing war crimes and crimes against humanity within a legal framework. A significant challenge in Darfur is the widespread immunity and impunity enjoyed by perpetrators, exacerbated by Sudan’s non-ratification of the Rome Statute establishing the International Criminal Court (ICC), despite signing it in 1998. This gap led to the ICC’s involvement in Darfur-related cases through UN Security Council Resolution 1593. (2005), which decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court   There are three potential avenues for prosecuting such crimes: first, conducting trials domestically, which has faced obstacles due to the influence of previous regimes; second, creating a hybrid tribunal, which has not yet been proposed; and third, referring cases to the ICC. However, serious discussions with Sudan’s civilian-led government have yet to yield tangible actions. Embedding mechanisms to address past atrocities within the constitution is essential for accountability and conflict prevention. Transitional justice provisions should prioritize criminal justice as a foundation before implementing broader transitional justice measures. However, achieving this requires strong political will and societal unity, as demonstrated in South Africa under Nelson Mandela’s leadership.   Building these mechanisms into the constitution necessitates not only robust legal frameworks but also functional local institutions and capacity-building efforts for those operating within them. Ultimately, it is about establishing a comprehensive ecosystem in which constitutional principles are deeply internalized and democracy becomes part of the societal fabric. However, Sudan still has a long journey ahead to realize these ideals.   CJLPA : So what will it take? Is it about implementing punitive measures to deter future crimes before delving into transitional justice? Should we first hold perpetrators accountable through punitive actions, and then transition to transitional justice, allowing communities to discuss their history and collaboratively map out a way forward?   AS : I do believe that if people know who is responsible for the crimes committed against them, it is unrealistic to expect them to engage in transitional justice mechanisms without accountability. Ultimately, it should be up to the victims to decide the type of justice they wish to pursue or whether to take an alternative path. Without assigning responsibility for these crimes, moving forward becomes exceedingly difficult, as this is not a minor community issue. These individuals have endured profound rejection and oppression, making it essential to address accountability before implementing transitional justice.   Unfortunately, transitional justice has often been used to downplay or normalize issues affecting communities. For example, when the RSF discusses transitional justice, they often refer to the most basic version—focused on ‘moving on’ without a genuine commitment to accountability. During the 2019 sit-in, it was alleged that military forces and the RSF killed over 200 people. Despite establishing a fact-finding committee with a six-month mandate, from June 2019 to 25 October 2021, the committee failed to submit a report to the Prime Minister. This lack of results raises serious doubts about the credibility of such fact-finding missions. Without meaningful prosecutions or tangible outcomes that the community can see and claim ownership of, trust in these processes erodes.   This brings into question whether we are truly committed to justice. While we may state our intent to confront impunity and address abuses of immunity, granting immunity to those responsible and failing to act on the recommendations of critical mechanisms like the fact-finding committee signals a lack of genuine commitment to justice for the victims.   CJLPA : Let’s turn to the transitional period, post-2019. Regarding the challenges and setbacks, in your view, what should have been done?   AS :  Transitions are challenging and complex. Sudan’s political parties had been suppressed for over 30 years and, consequently, lacked experience in governance and exercising power. When the transition began, individuals with little practical experience were suddenly placed in cabinet positions and tasked with running the state. In such complex situations, a collective, inclusive approach is essential—everyone must be involved. The issues went beyond the constitution; they extended to how we implemented its provisions and conducted the process itself. If we were to approach this differently, underlying issues would need to be addressed first. One key issue was legitimacy: determining who was entitled to be the political representative. Initially, the Forces of Freedom and Change (FFC), a broad coalition of civilian and rebel groups, held public support. However, as confidence in the FFC waned, the question of legitimacy—specifically, who could negotiate with the military—resurfaced. The Sovereignty Council, comprised of both military and civilian members, represented an unprecedented partnership. This model—a civilian-military agreement—was new not only for Sudan but also for Africa, and it posed significant challenges. Moreover, neighbouring countries and regional actors viewed this model with apprehension. If successful, it would set a precedent that militaries cannot govern alone but must work alongside civilians. In my view, this notion was unsettling for some neighbouring states, who were not supportive of Sudan’s transitional model, adding another layer of complexity to the process.   CJLPA : The historical struggle between military leaders and civilian governments poses a significant challenge, particularly in the context of another transitional period. How did you plan to resolve these past struggles, and what measures were you contemplating to implement?   AS :  This is a complex and challenging issue, with no straightforward answer. The military-civilian relationship in Sudan has historically lacked a structured approach. Rather than addressing these relations directly, civilians have often responded to military dominance through uprisings or revolutions, focused on governing arrangements rather than establishing a clear framework for military-civilian interaction.   In the 2019 transition, the military assumed it could create a Transitional Military Council (TMC) to oversee the process, following a model from Sudan’s past revolutions in 1964 and 1985. The precedent was the 1985 TMC, where the military expected civilians to hold partial elections for a constituent assembly, form a government, and let the TMC run the remaining affairs. However, in 2019, political forces, civil society leaders, and political parties pushed for a fully civilian-led government, even proposing that the head of state—through the Sovereignty Council—be a civilian. The compromise became a 50-50 split between civilians and military within the Sovereignty Council.   Since no elections were held, the Forces of Freedom and Change (FFC) emerged as the de facto political incubator of the transition. However, the FFC itself faced internal struggles with divergent voices and approaches to handling the military. Under the power-sharing agreement signed in July 2019 between the TMC and the FFC (which one month later in August 2019 paved the way to the Constitutional Charter), a transitional council was established with six civilian and five military leaders, rotating leadership throughout the transitional period. The military held the council’s chair for the first 21 months, followed by the FFC for 18 months. The agreement granted the FFC significant control over the transitional government—excluding the interior and defence ministers—along with a two-thirds parliamentary majority and the appointment of Abdullah Hamdok as Sudan’s first civilian prime minister since Omar al-Bashir’s rise in 1989.   If we hope to do things differently, meaningful dialogue with the military is essential. Military transitions, as seen in many countries in Latin America, and also in other countries, often require a lengthy process; it is not a piecemeal exercise. Transitions in Sudan are particularly challenging due to decades of dictatorship. There may be no exact blueprint, but it is clear we need a different approach from the one we attempted in the past.   CJLPA:   You said it will involve a process and some form of dialogue—what kind of process, and what kind of dialogue? What are we looking at?   AS : Addressing this issue requires a dialogue between political parties and the military, including security forces, with a focus on comprehensive security reform. However, the current conflict adds layers of complexity. Even if the military partially or fully prevails in the conflict, negotiating with them will remain challenging, as they may view security matters as exclusively within their jurisdiction. Nonetheless, engaging with the military is essential, as they must operate as a component within a democratic state.   Reforms are necessary to establish civilian oversight of the military, prevent its involvement in the economy in ways that compete with the private sector, and ensure its primary role is to protect the constitution rather than its own interests. Mechanisms should be developed to define when military intervention in political matters is permissible, with the goal of safeguarding—rather than usurping—political authority.   CJLPA : In the current political situation, the conflict partly stems from an agreement between the paramilitary and the military. One of the main causes of the conflict, as I understand it, is the paramilitary’s reluctance, or outright refusal, to integrate into the military.   AS : The issue with the paramilitary force, specifically the RSF, is its classification as a militia involved in atrocities in Darfur, where it has been implicated in acts of terror, international war crimes, and crimes against humanity. Some members were indicted for these crimes during al-Bashir’s rule. The RSF was established under the Bashir regime—not by the military—with the purpose of protecting the regime’s interests in Darfur. The RSF are essentially a continuation of the Janjaweed militia, which was first mobilized and recruited in the early 2000s by the Sudanese government under Omar al-Bashir. Al-Bashir deployed these Janjaweed militias, often referred to as ‘devils on horseback’, to suppress the rebellion in Darfur led by the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM). The regime armed and supported the Janjaweed, facilitating their violent attacks on non-Arab ethnic groups in the region. Al-Bashir’s use of the Janjaweed reflected a pattern from the 1990s, when he relied on militias like the Murahileen to fight in South Sudan, Kordofan, and the Nuba Mountains. During that period, tribal militias such as the Fursan were also deployed to crush the brief insurgency led by Daud Bolad in Darfur.   In 2017, a law formalized the RSF’s status, requiring it to report directly to the President Al Bashir but placing it under military command during emergencies. However, after the 2019 transition, Hemedti successfully removed this restriction, granting the RSF independence in emergencies. With no president in place and the head of the Sovereignty Council also leading the military, this further complicated the RSF’s role and contributed to its refusal to integrate into the military.   In negotiations prior to the eruption of the conflict on 15 April 2023, there was an agreement that the RSF should integrate into the military within a shortened timeframe. While the RSF initially proposed nearly 20 years for this process, later reducing it to 10 years, the armed forces pressed for reintegration within a maximum of two years. This disagreement intensified tensions between the SAF and the RSF. Furthermore, the post-April 15 atrocities reveal that the RSF has never operated as a disciplined paramilitary force but rather continues to function and recruit as a militia.   CJLPA : Because its history is from Janjaweed?   AS :  Yeah, and still is referred to like that by the Sudanese people, they call it Janjaweed.   CJLPA : In the transitional period, were these issues discussed between the paramilitary, the military, and the civilians? AS : There were no productive or constructive discussions specifically focused on how to address the role of the RSF. Instead, most discussions centred on the broader objective of unifying Sudan’s military forces and reducing the number of armed groups operating independently across the country. This effort included integrating various military groups that had joined the transitional government under the terms of the 2020 Juba Peace Agreement, which aimed to bring numerous armed movements, primarily from Darfur, South Kordofan, and Blue Nile, into the formal political and military framework. However, despite the commitment to a unified military structure, the discussions often overlooked the unique position of the RSF. Unlike other armed groups entering the transitional process, the RSF did not see itself as merely another faction to be incorporated or subordinated within the national army. Instead, it viewed itself as an equal entity, operating independently and wielding significant military and economic influence. This self-perception set the RSF apart and led to increased tension, as it resisted any attempts at integration under traditional military command. The RSF’s autonomous stance posed a significant obstacle to military reform efforts. While other groups entering the transitional government under the Juba Peace Agreement were more willing to engage in integration and restructuring, the RSF’s perception of itself as an equal, rather than a subordinate, force hindered meaningful progress towards a unified national military. This dynamic underscored the difficulty of achieving true military cohesion in Sudan, as the RSF’s substantial autonomy and influence remained a point of contention, complicating the broader objectives of peace and stability in the country.   CJLPA : During the 2019 protests, there were numerous human rights abuses, including stories of people being thrown into the Nile and used as speed bumps. As a constitutional lawyer, how do you address the immediate human rights concerns and integrate laws and statutes that protect human rights and property?   AS :  This consistently brings us back to the question of accountability—how justice is pursued, the practicality of immunity, and whether it allows impunity to persist while addressing past grievances. This touches on the concept of ‘never again’ and the role of the judicial system. For instance, consider the massacre that occurred when security forces violently broke into the sit-in, resulting in the deaths of over 200 people, some burned and others missing. In response, a fact-finding mission—the Sudanese Fact-Finding Mission—was established under the 2019 Constitutional Charter with the mandate to investigate these atrocities and submit a report to the Prime Minister within six months. However, the mission took more than two years, with multiple extensions of its mandate until it was ultimately disrupted by the October 2021 coup.   This prolonged delay raises serious questions about the effectiveness of such missions during transitional periods after dictatorships, where known perpetrators and political agreements can complicate the pursuit of justice.   If a fact-finding mission fails to assign responsibility and accountability, what purpose does it truly serve? The 2019 Constitutional Charter itself included provisions for human rights protections. Specifically, it mandated the formation of a national, independent investigation committee, with optional African support as assessed necessary, to conduct a thorough, transparent investigation into the violations committed on 3 June 2019, as well as other incidents involving abuses against both civilian and military citizens. This mission was intended to investigate the massacre, yet it never delivered a final report. For justice to be achieved regarding human rights violations, the state must act with sincerity and commitment, either prosecuting these cases domestically or referring them to another body. Despite the transitional government’s cooperation improving after the regime change, no one has been handed over to the ICC, highlighting the persistent challenge that having constitutional provisions does not necessarily lead to accountability.   International actors have a vested interest in the stability of the Horn of Africa, as conflict in Sudan could lead to regional instability or even collapse, affecting neighbouring states like Chad, the Central African Republic, Libya, Ethiopia, and Eritrea—all potential flashpoints. Therefore, it is crucial for international actors to intervene with caution and constructively to foster stability. Resolving the situation will require a commitment from Sudanese civilian and military factions to collaborate, though this is challenging given the prevailing desire for military dominance among various factions. While I don’t have a specific proposal for the international community, I believe they must engage transparently with all stakeholders in Sudan to work toward a sustainable resolution.   CJLPA : Could you explain the contents of the constitutional charter, particularly concerning human rights, issues related to the courts, and mechanisms for holding individuals accountable?   AS : Sudan’s response was largely symbolic during the transition in 2019, a form of window dressing intended to calm public outcry in the moment. The political agreement that paved the way for the 2019 Constitutional Charter aimed to appease victims and their families, signalling that they were serious about accountability, but their actions suggested otherwise. This reflected a lack of political will—not only on the part of the military but also among civilian leaders. Civilians were part of the government for the first two years and played a significant role in many decisions, while the military and the RSF also shared in governance. There seemed to be a mentality of ‘let us govern and forget about accountability’. Attempts to address these issues through transitional justice ultimately fell short.   As a lawyer, I believe that well-crafted provisions alone are not enough to ensure they will be enforced or functional within the system. Justice and accountability require a coordinated system in which the executive, judiciary, and legislature work together; no single branch can achieve these goals on its own.   CJLPA : You are suggesting that achieving transitional justice may be impossible given the current circumstances. Even after addressing the issues stemming from this conflict, there remain challenges in upholding transitional justice.   AS : Consider the case of Yugoslavia: individuals implicated in crimes were handed over to a hybrid tribunal and were never tried in their own countries. This is a common scenario, as regimes often lack interest in prosecuting these individuals due to their own involvement or complicity. For those within such forces—even if not currently engaged in criminal acts—the prospect of facing consequences in the future can be unsettling, creating a cycle where accountability is evaded. This is why an international mechanism is essential.   While a fact-finding mission may be launched, its mandate typically centres on recommendations rather than indictments, resulting in reports rather than enforceable actions. Ultimately, effective justice requires courts with the power to act. Yet even with established courts, enforcement depends heavily on state cooperation. The ICC’s experience in Africa illustrates this challenge: without dedicated law enforcement, these courts rely on state participation, which can be withheld if regimes feel threatened. Today it may be Sudan; tomorrow, it could be another nation facing similar challenges. This dynamic underscores the need for international accountability structures that can operate independently of complicit states.   CJLPA :   Going into the future, the expectations and hopes of the Sudanese people are that this war will come to an end as soon as possible. How do you envision constitutional principles playing a role in resolving the crisis in Sudan?   AS : This brings us back to a foundational issue we discussed earlier: distinguishing between constitutionalism—a set of ideas, attitudes, and behaviours that uphold democratic principles—and the constitution itself, the supreme political-legal document. It’s also crucial to differentiate between the constitution’s text and how its provisions are enacted or neglected. Building institutions that uphold constitutional norms is essential, yet it’s a continuous process, aimed at establishing a judiciary, cabinet, and executive that maintain a true balance of powers—something that has yet to be fully achieved in Sudan.   A constitution should represent not just specific groups but the entire nation, taking into account diverse ideologies, religions, and Sudan’s rich cultural diversity. Sudan has never engaged in a comprehensive exercise to openly discuss institutional frameworks, address collective issues, and create a document reflecting national expectations for governance. The 2019 Constitutional Charter, established under the civilian government, was later amended in ways that undermined its original principles. This breach of the 2019 framework underscores the need for a more robust process.   There is no doubt the future likely calls for political dialogue culminating in a constitutional conference, a complex process involving multiple phases beyond simply drafting a document. Constitution-making requires exploration, drawing from extensive literature and global experiences, to craft a framework that suits Sudan’s unique context. This approach must honor the diversity of Sudanese society and embrace its multi-ethnic culture and identity, creating a foundation that genuinely represents all Sudanese people.   CJLPA :   Reflecting on the current stalemate, how can the deadlock be broken and what constitutional reforms would you propose going forward? So as not to have a repeat of many cycles of conflicts.   AS : Any constitutional arrangement in Sudan must clearly define the military’s role and strictly limit its involvement in political affairs. There is no place for the proliferation of separate armed forces, as this only exacerbates arms control challenges. Sudan’s top priority should be establishing a single, unified army. Whether you agree or disagree that this army needs reform is another matter. Once consensus is reached on unification, the reform process can follow.   Safeguards are also essential to prevent the military from interfering in the day-to-day political affairs of the state. However, this process must go beyond knee-jerk responses or temporary peace agreements. Some mistakenly view the conflict as a simple power struggle between Burhan and Hemedti, but it’s far more complex. It is a conflict embedded within the state itself, involving different factions within the transitional process, some of which actively resist the transition. Ultimately, this is not merely a struggle within the military but a challenge facing the entire state apparatus. The Sudanese people are aware of this complexity, and reducing the conflict to two individuals oversimplifies the issue. Such a narrow view risks superficial interventions that fail to address the deeper, structural issues at play.   CJLPA :   What is the way forward?   AS : The path forward requires that we, as Sudanese, persist in our struggle to reclaim control of our nation and build a democratic future. We deserve a civilian-led government, stability, prosperity, and sustainable economic growth—and we have the capacity to achieve it if given the chance. Ending the war is crucial, but addressing and eliminating the root causes of the conflict is even more essential to prevent a repeat of history. We cannot afford to overlook these foundational issues or merely push them aside; genuine progress demands confronting them head-on for a lasting peace.   CJLPA :   In 2021, you penned an article describing ‘Three scenarios for post-coup Sudan’: to ‘continue down the path which the military set out and normalise the coup’; to ‘reverse the coup and return to the status quo before October 25’; or to ‘see all stakeholders involved agree on a peaceful political settlement’.[2] Looking at the current conflict, would you still go by them or would you even add more scenarios?   AS : I feel that we’re facing a situation far more severe than the coup—it’s now a prolonged assault on the state by the RSF. This is not to absolve the military; they have their own share of responsibility in this crisis. But as I look at the current scenarios, I fear we are on the brink of a civil war. I genuinely hope we don’t descend into a full-scale conflict. We need to take a hard, honest look at how we arrived here. What did we do? Where did we go wrong as civilians? We played a part by appointing individuals unfit for the executive branch and by failing to hold the military accountable when we should have. In some ways, we contributed to this situation, too—it’s not solely the military’s fault. We share in the responsibility.   It’s crucial for us to reflect on our actions, to consider what we could have done differently to avoid this crisis. This reflection is incredibly challenging and emotionally heavy. We have people scattered across the region and the world, and the weight of responsibility is immense for all of us. Facing the brutal realities of rape, gender-based violence, and extrajudicial killings is excruciating, as is the thought of never seeing our loved ones again. It’s a burden that is profoundly difficult to bear, yet it’s a reality we must confront if we are to rebuild our nation.   CJLPA : I am deeply sorry about the situation back home. Today, my main takeaway is centred around constitutionalism. We must prioritise the establishment of institutions that operate on principles rather than individuals, ensuring their durability over time. The military should not be involved in any aspect of governance except for national defence. Many thanks for speaking to us today. This interview was conducted by Solomon Njombai, Legal Researcher at CJLPA. Solomon, an Advocate of the High Court of Kenya, holds a Master of Arts degree in International Relations and an LL.M in Energy Law. His primary focus lies in comprehending how energy intertwines with global issues and how it drives interactions between states on a global scale [1] Abdelkhalig Shaib, ‘Is Sudan on the brink of another civil war?’ ( Al Jazeera , 27 October 2013) < https://www.aljazeera.com/opinions/2013/10/27/is-sudan-on-the-brink-of-another-civil-war > accessed 1 August 2024. [2] Abdelkhalig Shaib, ‘Three scenarios for post-coup Sudan’ ( Al Jazeera , 9 November 2021) < https://www.aljazeera.com/opinions/2021/11/9/three-scenarios-for-post-coup-sudan > accessed 1 August 2024.

  • That is the Work of Rohingya Women—It Cannot be Mistaken for Anyone Else’s Labour: In Conversation with Yasmin Ullah and Doreen Chen

    Yasmin Ullah is a Rohingya author, poet, and human rights activist based in Canada. Born in the North Arakan state of Myanmar/Burma, she is the founder and executive director of Rohingya Maìyafuìnor Collaborative Network, a United Nations Minority Fellow 2023, and author of the children’s book Hafsa and the Magical Ring .   Doreen Chen is an Australian international human rights lawyer who co-founded and co-directs Destination Justice. She served as Lead Prosecutor for the Permanent People’s Tribunal on Myanmar and previously represented the senior surviving leader of the Khmer Rouge at the Extraordinary Chambers in the Courts of Cambodia.   This interview was conducted on 18 April 2024. CJLPA : To begin, I know that when CJLPA originally reached out to you both, we did so individually, not knowing that you were colleagues or collaborators! Can you tell us how your working relationship began?   Yasmin Ullah : I met Doreen in a conference at Columbia University in New York. We did not really have the time to chat, but I saw her with her husband and her child in a stroller and I thought, ‘wow’ throughout the panel that that she was speaking at, ‘what an articulate person’. She was such a badass. I really wanted to speak with her, we just got to say hi, that was it. But then there was another conference where we really got to spend time and talk. We began texting and we got to know each other even deeper on a personal level. I think the kids would say that we really ‘vibed’ with each other. I really respect Doreen and her work ethics and the framework that she has going on, and that has really inspired me to continue my journey. As an advocate it showed that there is such a person in this work that has not been bogged down by all the suppression and systemic violence that we deal with on a daily basis.   Doreen Chen : The only thing I am going to add to that little history is that I remember that when we first met, I sought Yasmin out at the conference in New York because she stole the show. She stopped a roomful of 200 people with her remarks. I do not think I have ever heard the same level of passion, the testimony of the survivor, the strength of an advocate, and the analytical horsepower, combined in one incredibly articulate person. So as I recall it, at the very end, I did have my stroller with my toddler with me at this conference. I came up to Yasmin at the end to tell her that I thought she was one of a kind. And we did ‘vibe’! I think what we sensed there was sisterhood, the power of connection, and mutual support that you can have in advocacy, and maybe how much we could both support each other in collective movement towards accountability for the Rohingya. We were both very busy but we kept trying to find ways to meet up across many different continents. That was seven years ago now—and the rest is history.   CJLPA : Amazing! My next question is about how the two of you came to work in this field—how did you both end up at that conference that day?   DC : Really, if you drill down into it, it comes from my parents. My parents were stateless. My mum was born in a civilian internment camp in World War Two and my dad is the child of refugees. They were raised in Southeast Asia—Mum in Taiwan initially, but mostly in Indonesia, and Dad born and raised in Burma. They eventually ended up in China, experienced the Cultural Revolution in China and then moved to Hong Kong. Eventually, Mum was given Australian citizenship because she had been born in Australia during in the war in the civilian internment camps, so she was entitled to it. My dad and my sister were able to naturalise that way, and they migrated to Australia. That journey that they had meant that they had this vision of social justice from very early on, it was just hardwired into the family. This has been dinner table conversation since I was a child. The notion of service and the value of supporting others has been drilled into us since a very young age. So that has always been the kind of direction I was taking.   I think I naturally gravitated towards Asia and Southeast Asia at the start of my career because of the many connections, there is a lot of history there. I ended up working in Cambodia in different things, including establishing my NGO Destination Justice. But I also worked at the Khmer Rouge tribunal in various capacities, including as the International Council for the senior surviving leader of the Khmer Rouge. And I think that role led to different connections with activists in Southeast Asia because it was one of the only international tribunals that has ever been established in the region, in addition to Bangladesh, that has dealt with accountability for mass atrocity crimes. There were a lot of academics, activists, and others visiting the tribunal on a regular basis to learn more about that accountability journey, and to see to what extent that could be applicable to their own struggles to achieve the same. So I ended up meeting activists working in and around the Rohingya accountability space, and that led eventually to work on the Permanent Peoples’ Tribunal on Myanmar, which eventually led to that conference in New York. The subsequent work I have done since has largely been in collaboration with my wonderful husband.   YU : For me it was very similar, but also a little bit different. I had grown up, of course, in displacement in Thailand. We were refugees for a very long time. I was in Thailand for 16 years without really any protection status from my own government, the Burmese government, nor the Thai government at the time that we were living in in Thailand. That sense of injustice is something so difficult to swallow, it opens up so many sorts of vulnerabilities for us. Living life like that really taught me how I do not want to be treated and how I probably should not treat others. And I think, potentially, what happened was that I learned that the oppression that happens to Rohingya people is so deep-rooted in so many different layers, at different places, wherever we are in this world, until we find some sort of third place or third countries to resettle in. Even then, we remain exposed to this ongoing oppression by the Burmese government and others in the region regardless of where we have ended up, because our families are still exposed to these kinds of oppressions. It had been instilled in me for a very long time that we are just different from other people, and we are going to continue to have to struggle like this. At one point I did not want to be a Rohingya anymore, because why should it be such a struggle? Why should I claim this heritage of mine?   It was not until I moved to Canada, and resettled here through private sponsorship in 2017, that I realised I could make a really good life here for myself. I could venture into a career that pays well, live a life here and settle down. But what good is it if I cannot really protect those that are close to me, the people that I met when I was young yet never had a chance to go back to reconnect with? The people who share my roots, my culture, and my tradition. They make up everything that I am today, even when I do not know it or do not realise it. For a time, I felt quite helpless. But in 2017, when the genocidal campaign was launched by the military and aided and abetted by the civilian government, I realised, ‘I need to do something—I do not know what, but I needed to do something. I cannot just sit and cry’. I remember crying for like 24 hours straight before realising ‘okay, this is enough tears’. And suddenly an opportunity came through where I got to have fun by crowdfunding and fundraising among friends and family. At that time, I did not expect for more than around $2,000 to be donated by those around me. I talked relentlessly about the Rohingya plight in 2017, and people began to say ‘okay, how can we help’. I did not know how to do any of this at the beginning, but somehow, I found a way to gather this money together. It was like a hot coal because I did not want to keep it in my hand! This was so much money, and it was meant for someone else. I did not want to hold it with me for a long period of time.   Somehow, through the help of my mother and people that we knew in our network, we found ways around to get the money through the cracks into Burma during the crisis in the fall of 2017. Despite the fact that we had not even become a formal organisation at that time, we managed to send almost $40,000 by the end of December. It was very strange for me to feel so empowered, and to realise how far we got just crowdfunding among friends and family, and setting up a page online. But it really saved a lot of people. It helped a lot of the displaced population to be able to decide whether they want to stay in a country where their future is so uncertain and their safety is not guaranteed. They now had the choice to leave. Many people were able to use that money to actually either stabilise their situations and find immediate needs like food, water, and shelter, or they could use it to decide to leave. They would then pay fishermen to take them across, and not have to swim across the borders.   So I realised that this was my newfound confidence. It was so daunting and I did not know how to go from there. But through just working and talking to different groups of people, I was interviewed by a few different radio stations. And through that, I got connected with other activists in Canada who are concerned about this. And we basically came together and the Rohingya Human Rights Network was formed. We then began pushing for Canada to make a genocide determination regarding the treatment of the Rohingya. I think that that was where the wheels started turning for me. I began to think, ‘okay, this is traditional advocacy, this is lobbying, this is a top-down approach, and this is how to do that’. We were also looking at cultural influence for advocacy purposes, by using institutions like museums to actually do the bottom-up work. By using museums, we can try to influence culture and peoples’ understandings about Rohingya, or even simply learn about Rohingya in the first place. I think that all of these different efforts combined to bring together the pieces of what advocacy means for me. But Doreen and I also got to work together and really, really find support and strength within each other.   CJLPA : Yasmin, can you tell me a bit more about the scope and goals of the Rohingya Maìyafuìnor Collaborative Network? How often do you work with Doreen’s organisation, Destination Justice, and what does the work together look like?   YU : I obviously have a lot of a lot of respect for Doreen and I continue to be inspired by her work and her tenacity every single day. We also converge in terms of our understandings of intersectionality, feminism, and various different aspects of mass atrocity and gender. That heavily influenced my work. Because I realised, in every single mass atrocity, and especially the Rohingya genocide, gender was weaponised against the people who are going to be the carriers of violence and trauma in the long-term. This was done deliberately to ensure that the community is as broken and desecrated as possible.   From the very beginning with my former organisation Rohingya Human Rights Network and now with the Rohingya Maìyafuìnor Collaborative Network, I have continued to have this idea of the significance of gender to mass atrocity in the back of my mind informing all of my work. I do not think I would have been able to actually understand or make sense of everything without Doreen being there to guide me. Sometimes I cannot make sense of why a system is so broken and hell-bent against women, and Doreen is there to say ‘well, let me tell you something about it’. It is so heart-warming in such a cold and harsh place like this world to find someone like Doreen and so many other women who have been my mentors and advisors as well.   I think that the work between Destination Justice and the Rohingya Maìyafuìnor Collaborative Network is more than simply collaboration on projects, but more so intertwined in principles, our hopes, and our end goals for our people and for the collectives—particularly the principle of Southeast Asian liberation. So, I think that our work together goes beyond what we have done or are currently doing, but is focussed in how we support one another. Destination Justice has worked with us on certain projects based around justice and accountability, but very specifically on women-led, refugee-led, and community-led initiatives.   These are initiatives that will not be bogged down by systemic discrimination or various different forms of white supremacy that inherently gets embedded in this in this kind of work, especially in the accountability work. Unfortunately, a lot of the time victims and survivors of genocide and mass atrocities are spoken down to, rather than uplifted. Our principles converge in the sense that we would like to see victims being at the centre and being agents of change rather than being the people who the laws or the decisions are made and targeted to. We are hoping to shift the gears a little bit for more widespread practice in the hopefully near future.   For the Maìyafuìnor Collaborative Network specifically, the aspect of gender aspect heavily influences our work, beginning from the fact that we are an organisation founded by five Rohingya women in the diaspora. We each have stories of displacement and surviving genocide which are different, but all the same in the sense that we were all displaced from our own homeland. We now have to find our place elsewhere in the world. Our hope is for community-led initiatives and refugee-led organisations to be at the front and centre in receiving aid. We are pushing for aid to come to us directly rather than sifting through so many layers of NGOs and international organisations, and never really directly benefiting the people that need it the most. That is our general framework in general, but we also push for things that would help sustain our community beyond aid.   We understand that aid will not last forever, and our community needs to be sustained by other means, like social enterprise, which Doreen happens to know so much about. This means we may need a cultural revolution on the Rohingya issues beyond our surviving of genocide and being victims of genocide or mass atrocity. Beyond ‘woe is us, we have dealt with this for the past seven years’. How do we move beyond this victimhood and the mentality that is so rampant in this work? How can we have others or people who have not experienced what we have experienced actually look at us as agents of change? This bears repeating in so many different layers of our work. But I think it always comes back to the question of how to ensure that people see Rohingya, and Rohingya women specifically, as agents of change and as experts on their own experiences and their own livelihoods. How do we ensure that when we are at the table, when we are discussing decisions and policies and changes to be made, that the decision will be up to us, rather than up to those who do not live our experience?   DC : It may sound like she is stating the obvious, but this is not something that you can really take for granted in these kinds of accountability movements. The Rohingya accountability movement is not the first movement, by any means, that has tried to achieve this victim-centred and victim-led approach to accountability. But it is still not that common. And unfortunately, we find that in, in these movements, in aid and so on, there is a lot of colonialism, there is a lot of sexism, there is a lot of discrimination. It is wildly ironic, obviously, given the kinds of human rights violations and mass atrocity crimes that these movements are there to seek justice for. That is, it is wildly ironic that the movement itself then sort of replicates these very same forces of oppression in some senses.   As Yasmin has already said, that is the initial connection that we had. We at Destination Justice, as an organisation, have always been very interested in upending that notion, and Yasmin is a force of nature who is driven in this sense. There was a very natural meeting of minds, and it is something that has continued as an ongoing conversation. We do not pretend to have the answers. The appropriate way to deal with all of these things continues to evolve as society evolves and the situations and needs of the communities evolve and our understandings evolve as well. That is sometimes part of the connection itself.   Our connection may often be that we are collaborating on something: a campaign, a piece of change, other things that we cannot mention here. But as much as it might be about a tangible output, sometimes it is simply just about also understanding how we are doing things and checking with each other just to be sure. I often will go to Yasmin, when I am not sure about how something should be or whether this is the right way to do things, or to what extent does this respect the community and so on—and vice versa. So we are just kind of keeping each other in check.   In that sense, Destination Justice tries to see how we can assist human rights defenders and changemakers to use international law and international advocacy realms as a force for good. You would think that they are a force for good by their nature, but it is not necessarily the case. The idea is to empower changemakers like Yasmin to be able to engage in these spaces themselves. Yasmin has just been gallivanting around Geneva, doing just that as a United Nations Fellow. Those are the kinds of things that we hope for. We just try to provide technical assistance to human rights defenders and community organisers like Yasmin in this niche space where we are able to support. However, we take a backseat on all of the community engagement which Yasmin has been rightfully should be leading. It has been been a really interesting collaboration, and a really fruitful one. Unfortunately, it is not only the acts for which you seek accountability that can present challenges, but the spaces which you are trying to navigate to be able to achieve this accountability. These spaces can be just as frustrating and difficult and oppressing.   I think that this is a part of our connection as well. Yasmin has gone out on her own and established her network, and Destination Justice did the same. We were both trying to break the mould a little bit and trying to be nimble. For example, Destination Justice deliberately does not have a physical office—we try to do a lot of remote work and think about other ways that you can make a career in human rights advocacy sustainable. Yasmin mentioned, for example, social enterprise. We had a Justice Cafe for a few years in Cambodia, which was a wonderful space that I miss very much. In sum, our collaboration is just a lot of trying to create a safe space between us and innovate in terms of social justice. How can you achieve social justice in the most inclusive and respectful way possible, and in a sustainable way—mentally, economically, physically, and so on?   CJLPA : The values that you two are espousing come across so clearly. I think it is because you are obviously putting these values into practice even in the smallest things. Whether it is the way you are speaking to and about people, or the way you both direct your organisations, I can tell that it is done so intentionally and in a way that prioritises distributing power to those to whom it should be going.   I wanted to ask briefly on the question of international law, how you would characterise the attitude in Burma/Myanmar today toward international law? What is the rhetoric going around specifically about human rights law? What do you actually see happening in practice?   YU : Myanmar is a very young country, young in the sense that we have basically just began our journey or our connection to the world about a decade ago. 2011 or 2012 is when the country opened up. The first social media platform was Facebook, which was so prominent and so encompassing for everybody and became the main source of information for people. This went downhill pretty fast, because there was no filter, no moderation of content and the creation of content. Political parties and political figures actually use it and weaponise it for mass atrocity. Unfortunately, I think that was a very quick progression of how a state could justify mass atrocity, and how fast and how effective social media could be.   I am using this as a very clear cut example of how unfamiliar the country is to the international law and human rights standards. We have lived under the military regime for a very long time. Not counting the decade of quasi-democracy that we had, it was basically 40 years of military regimes, one after another, and different discriminatory policies and systemic shifts towards colonial legacies. And a lot of those legacies are dispossession, mass atrocities, accumulation of wealth for military organisations and power elites. People did not know what it was like to live without oppression. And that inability to imagine what the world should be like, or what social justice means, inform a lot of ways that people work. We have conflict complexities with ethnic armed groups, ethnic organisations, and divisions that were created by the military junta and the civilian governmental later on. I think that it is still incredibly difficult to actually have conversations around feminism or gender or international human rights standards and justice and accountability.   I fear that that conversation still has not gone deep enough into the depth of ‘what have we done in terms of harming one another?’, down into the smallest unit of the society. What have we done to one another? What do we owe to each other? And I have tried to have these conversations for a very long time, but it has been an uphill battle. I think that international human rights law or accountability mechanism are largely understood at face value. And, unfortunately, a lot of the time these people in the international realm do not come from the community. Many times, someone from the ivory tower reaches down to those in Myanmar/Burma. And to be frank, it is really difficult to have these conversations when people do not come with the lived experience of endless military regime and endless poverty.   More than half of the country lives below the poverty line on a day-to-day basis. The current population of Myanmar is more than 60% made up of women and young people. The good thing is that us being a young country and being a young population does leave a window of opportunity to discuss shifting attitudes and thinking and mentalities, but unfortunately the military's ideology has been so vastly influential that, for example, things like Burmanisation or prioritising of the dominant group remains in the consciousness. Even in the resistance movement, even in the civil disobedience movement, Burmans are prioritised in all aspects of political life. And it then does not leave a lot of room for us to talk about reconciliation or establishing the truth or really thinking about reckoning.   So I do not really have a proper answer to the question that you asked, but I do see the shift. Since the most recent attempted coup in 2021, the country is still currently in turmoil. Civil war has broken out and violence is widespread across the country, where other civilians, other groups, and other ethnic groups are also implicated. But it also shows that the Myanmar public is no longer going to bow down to the military junta or to the organisation, and it no longer has the power or the grip of the country that it thought it had. It is losing grounds to a lot of ethnic or armed organisation and resistance forces. This is also a very complex scenario all on its own, because this is a country that is not used to having accountability embedded in armed organisations. And that is a conversation that we are trying to have: let us talk about gender, let us talk about the enormity of mass atrocity that could be a feature out of this civil war, out of this lack of accountability built into armed organisation or lack of protocols that adheres to at least some level of international human rights law and standards.   My answer might sound very convoluted, but this is the kind of dynamic we are dealing with. Although there has been a shift, it needs to be pushed even further. Especially because we have a bunch of young people in the country who are trying to reimagine what the country could look like without this dictatorship, without the authoritarian regime. But at the same time, we have not been fed enough examples of what that could look like. This process of change will be dangerous, but we are trying our best.   DC : Building on what Yasmin has just said, I was thinking that states in Myanmar's position often like to say that human rights standards are aspirational, and that as nascent states that are not a position to grant all of these rights, or Myanmar's case they may say ‘I was not a party to all of the relevant treaties’—but they are a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). And although those rights are sometimes perceived as aspirational or non-enforceable, the UN has said that that is not the case. We should see human rights in the treaties as a minimum standard. And also as obligations to which Myanmar as a state party should be bound. And if we are talking about civil and political rights, even if the country is not party to the International Covenant on Civil and Political Rights (ICCPR), many of those rights have been given the status of customary international law. So it is not relevant whether they are a party to that treaty at all.   What we should understand is that human rights standards are not aspirational. We have defined a set of minimum standards that we expect all states to be able to abide by, regardless really of their economic development status. Obviously, there is a little bit of a margin, but not that much. And so it just frustrates me no end because Myanmar and many other states tend to use the same kind of rhetoric in order to dismiss the field entirely. And I think it doesn't wash with the state of the law as it is regardless of the treaty participation.   YU : That said, I feel I have done a little bit of injustice to painting the broad stroke of the understanding of the international human rights standards or accountability. Burma/Myanmar actually jumped into a lot of treaties and international human rights suggestions or standards. For example, we were one of the first few that actually jumped into the Universal Declaration of Human Rights (UDHR) in 1948. We also became a party to the Genocide Convention fairly soon after the draft. I think that was a very good indication that when democracy was flourishing in the country, there were there were a lot of things that we could accomplish in terms of our cooperation in the UN systems and beyond. And even now, as the resistance forces gain ground in the country, the military junta is receding and losing power and losing its grip on the country, and the National Unity Government—the alternative government that was made by the previous civilian government and personnel that that came through the election in in 2020—are trying to make amends. Some of the ways that they are trying to do that is by releasing statements and press releases acknowledging the Rome Statute’s coverage on genocide against Rohingya, and that was not something that I thought I would witness in my lifetime.   I saw Daw Aung San Suu Kyi, the head of the previous civilian government, defend the military to the International Court of Justice in person, dismissing the victims entirely. Now her own people and her own party are saying the complete opposite. Although there is debate about the quality of how this subscription is going to work, that first step has been made. There is also a lot of discussion around cooperation with the with the legal team and with the Independent Investigative Mechanism of Myanmar, or the IMM. There are many other precedents set by the National Unity Government, again where we are still debating the practical steps beyond that, and we are still trying to push the needle a little bit further than where they are.   As Doreen said, it is aspirational most of the time. We want it to become more practical, rather than being treated as an aspirational goal somewhere up in the up in the sky. International human rights standards are great, but if they are not implemented in the country and embedded into the legal, political, social, or economic systems, it will be difficult for us to actually get anywhere at all. And we see the breakdown of these systems, hence why we are here today. So we are hoping that it could be translated into laws and reforms in the country. For example in Canada, we have Charter of Rights and Freedoms, that was heavily predicated on the UDHR. We are hoping something similar could happen in Burma/Myanmar.   CJLPA : Has there been any legislation that incorporates the rights of indigenous peoples or ethnic minorities?   YU : We have a constitution being drafted right now, the issue is, because of this Burmanisation and Burman dominant culture, Rohingya and other ethnic groups are somewhat excluded from the process. The Rohingya are excluded entirely. Currently there is not a single group representing them at the National Unity Consultative Council, which is the council that goes on to actually advise the National Unity Government, our alternative government from the previous civilian government. This in and of itself is an issue. There is one Rohingya organisation, Women Peace Network, led by our amazing Wai Wai Nu. The issue is that her organisation is actually part of the NUCC not as a Rohingya organisation but as a women's organisation. Obviously, there is a convergence of issues. At the same time, however, if not a single Rohingya representative is on this council, then we do not have a lot of ways to negotiate different laws passed, or via which the constitution can be reformed, scrapped, or rewritten.   This has been an issue particularly in a transitional justice framework, when a lot of other groups have basically said, ‘Oh, we can deal with the Rohingya issues later’. And ‘later’, this Marxist form of ‘let us deal with all the issues later on, we just need to eat the rich first’—this does not work because it has not worked in the previous transition. And the rest of the world has basically bid against this transitional justice, we are thinking about it too deeply. When Daw Aung San Suu Kyi came into power and the National League for Democracy took over, we had quasi-democracy because there was no real consideration of transitional justice and how we can actually take stock, do the reckoning, and establish truth and reconciliation. Even at this stage, while we are while we are discussing the future of the country beyond the military, there is still this lingering Burmanisation or Burman nationalism that prevents and creates barriers for groups like us and groups beyond the Rohingya community to actually flourish and have a space to discuss their own future in this country.   CJLPA : Is there a lot of room in Burma currently for Rohingya groups or organisations like yours? Are these sorts of organisations mostly diaspora-focused or are there many within Myanmar as well?   YU : It is fairly difficult to actually organise in the country. So far, Rohingya have been quite badly hit throughout the entire attempted coup. Rohingya—our resources and our access to aid our access to livelihood—have been dwindling. There were so many different barriers that already presented themselves prior to the attempted coup as a result of this 2017 genocidal campaigns. So many layers of systemic violence and policies and practices are put in place to ensure that Rohingya cannot organise. We still try and there are ways that aid is operated or aid from within the community is actually sent into the country and distributed and ensure that everyone is taken care of. Of course, it is not nearly enough.   When it comes to how Rohingya could organise or whether or not we have a space at the table, it is very difficult because we are contending with this issue where Burman nationalists do not see Rohingya groups who are trying to represent themselves or trying to partake in this building and rebuilding of the nation. It is almost out of left field for a lot of Burman nationalist groups, especially Burman Buddhist nationalists, where they do not see Rohingya as belonging to the country in the first place. And this all comes back to the tiers of citizenship and how ethnic nationality subscription is only a design that was created, as a new creation by the junta and the military regime since 1962. During that process, Rohingya have not only been stripped of our citizenship. The common misconception is that this is what disempowers us. But it is also the subscription to ethnic nationality or indigeneity in the country. Because if you do not have indigeneity, then you do not have ancestors that could be traced back before 1820. The new creation that came into effect after the military junta took over in 1962 was the idea of Burman Buddhists, singled out as the only appropriate group and only correct citizen of the country. This inherently disenfranchised the rest of the country, made up of other ethnic and religious groups.   The Rohingya were the group targeted by the military junta to be alienated first. It was almost like a test run. I think we are still the guinea pigs in this experiment, where the military is trying to see where how far it can push this marginalisation, disenfranchisement, and discriminatory policy and practice against us and against others in the country. But it ends in genocide and mass atrocity, which is, I think, the worst that it could be. This is based in the idea that the Rohingya never belonged in the country, that we migrated in 1970 or some years prior to that. But when you look at the historical, archaeological, and academic references and evidence, the factual findings, Rohingya ancestors have been there. We can route back to various other records, such as the Arab records from when there was a lot of intermingling and sailing across the ocean to enter the region. These records can be dated back as far as the seventh and eighth centuries.   This completely destroys the myth that the military junta and the Burman nationalists want to create. They want to create sense of belonging for themselves and for no one else. They have this very critical year of 1820, where anyone who cannot trace their ancestors prior to 1820 do not belong in the country. That is such an arbitrary year. British colonial records show the Rohingya people and even the term ‘Rohingya’ itself existing in the seventeenth and eighteenth centuries. At that time, the British East India company surveyed the area and recorded who the people were and what languages they spoke, and, voila , there was a group of people who speak Rohingya and practiced Islam. The idea that the country was mainly Buddhist, that mainly Burmans created everything, and that they are sole bearers of culture and the sole custodian of the country is inherently just nonsense.   All of this combined leads us to the contentious issues that we are currently grappling with today. Burma as a country still needs to go through so many different transformations, and one that is so crucial is moving away from the military and the Burman Buddhist nationalist ideology. In this ideology no one else belongs, and this country belongs to a very arbitrary group of people that was dated back to this date or this date. The reform needs to happen far beyond that and digging up all these pieces to actually do the reform will be extremely dire. But then, while we are having these discussions, Rohingya are excluded from this process. So the people who know best what this oppression looks like and how to undo it is completely excluded from it.   CJLPA :   Doreen, I was hoping to ask you about your work with the Permanent Peoples’ Tribunal on Myanmar. What is Rohingya inclusion like in that setting?   DC : I would say I saw a lot. Obviously, one of the difficulties with any tribunal is where you are located. The Cambodia tribunal that I worked at regarding the Khmer Rouge, for example, was one of the few that was actually located in the country where the crimes were committed. This means that accessibility for the relevant community is very easy. That said, the Permanent Peoples’ Tribunal on Myanmar was in Malaysia, where there was a vibrant and large cohort of Rohingya refugees living. Extensive efforts were made to bring in Rohingya colleagues, not only because the tribunal dealt with Rohingya but also Kachin and Shan peoples. Ultimately, I think, the Kachin and Shan did not participate in the final instance, but there were representatives from all communities. There were extensive efforts made to bring folks in to participate in the tribunal, and more importantly, to make space for what people had to say about their experience.   One of the advantages of the Permanent Peoples’ Tribunal is that in terms of Rules of Procedure, it is a lot more flexible than, for example, the ICC, due to the type of institution that you are dealing with. And one positive outcome for victim survivors is that they were much more able to speak freely, and with the narrative of their choosing to describe what their experience was, which was critical. This is not something that normally happens—time limits are usually tighter. Normally, victim survivors, or the Civil Party seeking reparation, are asked to speak to a specific topic. This was sort of the case for the Permanent Peoples’ Tribunal, but we understood that truth-telling is probably the greatest outcome that a victim survivor can have, and doing so in accordance with their own framework of their own experience. We deliberately made a great effort to ensure that accommodations were made so that people could engage with the tribunal on their terms. So I absolutely cannot fault the institution in that way.   One thing I will also point out is that there was a special session that involved women specifically about sexual violence. This is probably less reported on the public because it was a closed session. Many parameters were set up so that women would feel comfortable testifying. They testified from memory before female judges only and with female prosecutors only. I was participating. There was a lot of preparation done with these people before and debriefing afterwards to ensure that the experience avoided retraumatising them as much as possible. I think that those are all commendable things.   I think international tribunals are magnificent for lots of things, particularly if you are looking for formal legal forms of justice and certain legal consequences to occur for individuals or perhaps even for states. But I am not sure that they are always the best. I am not sure that they are often the best suited for individuals participating in those structures, whether as witnesses, victims, or perpetrators, to be able to tell the story. Unfortunately, they are not really designed that way.   The Permanent Peoples’ Tribunal took place in August 2017, just as the genocide for the Rohingya was unfolding, it was really ‘live’. The way that that actually fed into the hearing was that individual testimonies captured by the media and NGOs were screened and relayed to the hearings in real time, so that people could hear those stories directly from those individuals as they were arriving in Bangladesh or as they were being interviewed by organisations like Human Rights Watch on arrival.   CJLPA : Before we bring this interview to a close, I was hoping Yasmin could speak about how being a woman specifically has played into your role in advocating justice for the Rohingya, and other instances where you have seen women playing a major part?   DC : Can we talk about what it is to be young as well? Because she is both!   YU : Oh, this feels like a lifetime ago. I am thinking on the ways that Rohingya women have held this community together after being endlessly desecrated, just constantly being bombarded with attacks, and policies and practice that do not just discriminate but also really destroy the connection between people in the community. Carrying our culture and our traditions across the river and across the borders, trying to ensure that the community still remains to this day: that is the work of Rohingya women. It cannot be mistaken for any anyone else's labour.   Throughout all of this, after surviving, women have been the ones who are predominantly more open to cooperating with different groups of people who are collecting testimonies. The most dire and heart-breaking stories, the ones that go on to establish mass atrocities and establish the suspicion of genocide, come from women. They are the ones speaking about sexual and gender-based violence openly. The have been the ones relaying information to lawyers and prosecutors and they continue to do so until today.   Unfortunately, we feel that they have been over-interviewed and over-extracted for their information and continuously put through this re-traumatisation process. Beyond the refugees or the survivors or the victims, those in the diaspora also have a role to play, beyond translation and interpreting and beyond trying to repackage the information for those outside the communities to understand. There are also roles that we play, for example, in documentation. Razia Sultana wrote a book called Rape by Command  that actually sheds light on the chain of command in terms of who orders rape and the mass rape to happen, who orders the sexual and gender-based violence, and that could be routed back to the mastermind and architect of this genocide, General Min Aung Hlaing.   Women Peace Network have done a lot of work in terms of documentations but also working on sustaining and uplifting the community from the inside, and from the outside ensuring that the international community understands what goes on in the country. They are also playing the role of peacemaker and connecting with other communities. Even though our community is not well represented in the NUCC, they are still bearing that responsibility to ensure that some level of representation remains.   I do not think that we cannot downplay any part of the work that Rohingya women have put into our role at Rohingya Maìyafuìnor Collaborative Network. We are focusing solely on changing the ways that people look at Rohingya in Southeast Asia because we understand that ASEAN has a role to play, even if people think that it is dead because it has an approach of non-interference. We think that it should change and why not—just let us just put in the work and see how far we can push it!   Every revolutionary that has that ever existed has had to sit down and say, ‘No, we are not going to let the status quo operate the way that it has operated. We are going to challenge it’. This is what we are trying to do. On so many levels, Rohingya women have done all that we can to ensure that our voices are heard and that the world understands what happened inside our country and to us. At the same time, we are also trying to push further into the reforms, into the changes, in the best way that we know how.   The challenge remains that we are not only looked down on by those outside our communities, but also prevented from participating meaningfully in the rebuilding of our community and in the rebuilding of Myanmar/Burma. As women, as young women, and as an organisation made up of young women on top of all of this, we have dealt with so much scrutiny. For example, in Southeast Asia right now there is a hate campaign against Rohingya. Something terrifying is that the language in these hate campaigns is very similar to the genocidal language leading up to the events of 2017. Our fear is that ultimately these groups of people, a few hundreds of thousands of Rohingya that are currently residing in Southeast Asia, will not find a safe place, and will eventually be pushed into vulnerable situations or unsafe circumstances or be forcefully repatriated.   The bulk of the work is not just about us contending with politicians and policymakers. There are also issues around hate comments on any sort of content we push out, because today we live in a digital age. For example, there was a video of my colleague Noor Azizah, a director at our network, featured by UNHCR Asia Pacific. The video was one minute long, no longer, and it was about Rohingya wanting to sustainably repatriate and what conditions should be met. It was very standard practice thing—there was nothing new that she was introducing—but the video went viral. There were only around 150 likes, but there were more than 5000 comments and counting. They all came from Bahasa Melayu and Bahasa Indonesia talking about how Rohingya should go home, they are uncivilised, they are this, they are that. Noor is a very poised, graceful young woman—even younger than me! It is so mind-boggling that even when she is not making any sort of controversial statement, just stating facts and talking about what Rohingya people want, that she is not being listened to or treated with kindness and grace that it should. This is merely one instance of this sort of online treatment.   On top of this, we deal with not just the public, but also people in our community, men in our community, who are threatened by our presence and existence. Unfortunately it exists in all of the communities. As women become louder men become really, really threatened. Regardless of what label we put on ourselves. It is almost impossible to exist as a woman in this world, having to feel like you are smaller and being made smaller and irrelevant every single day. But Rohingya women show up and we continue to show up every day. In the International Court of Justice and in the Universal Jurisdiction case against Myanmar in Argentina, there are four main victims that are featured. These four women have shown so much courage, tenacity, and bravery. They have shown their faces and told their stories over and over again, been scrutinised by the court and the media, just so that they could raise the status of our issues. That is participation of Rohingya women.   I hope that in our work with Destination Justice, that we could make it a little bit safer, more victim-centric, deeper rooted in the future that we want to imagine, in the reforms that we are trying to push. We do not want to just use the labour of Rohingya women left and right without rewarding them for what they have brought to the table. At the same time, we want to also be able to participate meaningfully, and not just limit Rohingya women to storytelling roles where they must cry in front of camera. Beyond that, how can we uplift them to the point that they no longer need these systems that uphold white supremacy, colonialism, and all these other oppressive mechanisms, but actually be able to raise their status, wherever they may be, and keep them safe?   DC : Finishing with the idea of redundant systems, I would say that our goal at Destination Justice is to be redundant. We want to be out of a job! Our hope would be that we do not exist in the future because there is no need, no injustice, and all is well. But even if we continue to exist, we are looking to be even more in the background and have even more empowered human rights defenders and communities being able to take things forward themselves. We will provide support as needed in the background. But in an ideal world, I would say we should not exist at all. If we do, let us hope there is a little bit more accountability down the road, and that that accountability has been truly led by the victims and survivors from outside and by women and young people. This interview was conducted by Alexandra Marcy Hall, Legal Researcher on The Human Agenda. Alexandra Marcy is a human rights professional who has practiced and researched extensively in the Middle East, North Africa, and Europe. She currently works in advocacy for asylum seekers, refugees and migrants living in London.

  • Afghan Women’s Rights to Education and Health Care in a Culture of Impunity

    In the aftermath of the Second World War, just over seventy-five years ago the international community embraced the Universal Declaration of Human Rights (UDHR, 1948) as a cornerstone for global peace. The preamble of the UDHR rights starts with this paragraph: ‘Whereas recognition of the inherent dignity and of equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’.[1] Human rights encompass amongst others the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education. Everyone is entitled to these rights without discrimination. As noted by Brock-Utne, ‘peace involves equality of rights through which members of a society participate equally in decision-making and distribution of resources’.[2]   The international community cannot both recognize human rights as the foundation for global peace and accept the Taliban regime’s system of gender apartheid. As a member of the United Nations, Afghanistan ratified the Universal Declaration of Human Rights. Afghanistan has also ratified most of the major conventions and treaties of human rights, including the International Covenant of Economic, Social and Cultural Rights (ICESCR, 1976); the International Covenant on Civil and Political Rights (ICCPR, 1976); the International Covenant on the Elimination of All Forms of Racial Discrimination (ICEFORD, 1969); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1981), without any reservation; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1987); the Convention on the Rights of the Child (CRC, 1990); the Abolition of Forced Labour Convention (1957); the Geneva Conventions (1949) and protocols; and the Convention on the Rights of Persons with Disabilities (CRPD, 2008). In addition, Afghanistan committed to the Beijing Platform of Action, which outlined comprehensive action for the promotion of gender equality, the Security Council Resolution 1325 in 2000, and many other resolutions on women’s participation on different levels of peace building and development. Likewise, Afghanistan endorsed the Sustainable Development Goals (SDG) which establish sustainable goals with the slogan of ‘Leaving no one behind’.[3] However, the Taliban’s opposition to and violation of these human rights, particularly their systematic discrimination against and exclusion of minorities and Afghan women, obstructs Afghanistan’s path to peace.   Historical context and background   Unfortunately, Afghanistan has been at war for 45 years, starting with the Coup d’etat of the pro-USSR factions in 1978. Since then, the people of Afghanistan have been held hostage between the extreme left—the People’s Democratic Party of Afghanistan (PDPA), the USSR, and its military invasion—the extreme right, and fundamentalists supported by the Western and Arab countries. Islam, our religion, was used as a weapon of war to defeat the USSR and stop the advancement of so-called communism to South Asia. The Taliban is the by-product of this short-sighted Cold War policy.   Because of gross human rights violations, including arbitrary bombing and the arrest of people who were not with the PDPA, millions of people were forced to become refugees in neighbouring countries, particularly Pakistan and Iran. Soon after the USSR’s invasion of Afghanistan, Iran experienced the Islamic Revolution. In Pakistan, self-appointed President Muhammad Zia-ul-Haq started his Islamization of the country. Afghan refugees who had lost their livelihoods were put in refugee camps. Due to poverty and lack of facilities, refugees were not able to feed and educate their children. Religious schools (madrassas) were established to this end. Access to quality and modern education was denied to Afghan refugee children. madrassas replaced formal education with the brainwashing of male children with extremist world views.   During the war, women’s rights were denied as the men fought against the USSR. After the withdrawal of Soviet forces from Afghanistan the Mujahedeen factions took power, and soon started fighting among themselves, destroying what was left after 14 years of fighting with the puppet regime and Soviet army. They started to violate the rights of women including restricting their clothing and their appearances. During 1992-96, for example, the government at that time initially declared that women could not show their faces on TV. They replaced women’s faces on the screen with an image of a rose, with their voice in the background. After a few weeks, they ordered that even the voice of women should not be heard by unrelated men. Similarly, they forbade the Afghan delegation from participating in the Cairo Conference on Population and Development in 1994, on the grounds that un-Islamic issues would be discussed.   The country was divided between different political and ethnic groups. Emerging from the madrassas in Pakistan, the Taliban began their existence in 1994 in Kandahar and took Kabul in 1996. They issued their first decree banning women’s education, movement, and presence in all of public life, including forcing people to paint their windows if they had second floors in their houses, to prevent women from being seen from outside and women from seeing the outside. They made Afghanistan an open prison for women from 1996 to 2001. At the same time, Afghanistan became a training camp for terrorist groups and the biggest producer of opium in the world.   The international community placed no priority on women’s rights in their relief programs for refugees. They did little to increase access to education for women and girls or provide reproductive health care or access to contraception. Afghan families ended up with so many children that they were not able to feed or educate them. Poverty increased. Boys ended up in madrassas. Girls became victims of domestic violence, including child marriage and forced marriages.   Advances for Women’s Rights under the Afghan Republic Government   After 9/11 and with US military intervention the Taliban were removed from power. A new interim administration and transitional government was established with high hopes for the promotion of democracy and human rights. Although it faced continued challenges and barriers, the Afghan Republic government (2001-2021) made tremendous achievements to promote and fulfil its international obligations regarding human rights and women’s rights. The Afghan government had sought to create a legal framework in compliance with the country’s international legal obligations. The new constitution ratified in 2004 guaranteed equal rights for men and women. It was the first iteration of the Afghan constitution to contain the word ‘women’. The new constitution allocated 25 percent of Afghanistan’s parliament and provincial councils to women. The constitution also provided for religious liberty, allowing Shias in the country to exercise their personal status law. Many other laws were reformed during this period. Importantly, for the first time domestic violence was criminalized with the Elimination of Violence Against Women Law.   How did these international commitments and their integration into local Afghan laws change Afghan women’s daily lives? What did these policies mean to Afghan women in practical terms?  Afghanistan established its first Ministry of Women’s Affairs (MoWA) to address and recognize the challenges Afghan women faced. For the first time, an Afghan woman was appointed as a vice president in the Afghan interim government. Afghanistan established a national human rights institution, the Afghanistan Independent Human Rights Commission (AIHRC), to monitor, promote, and protect human rights in the country. Afghanistan held its first presidential elections to allow average Afghans to participate in political processes and decision making. For the first time, an Afghan woman ran for office as a presidential candidate. Afghan women had some form of representation at high level official positions as ministers, members of the parliament, governors, mayors, university professors, judges, prosecutors, army and police officers, in sports, media, and all other aspects of life. Although some of these gestures were symbolic and mainstream Afghan women still continued to suffer from violations of their fundamental human rights, they were nonetheless huge first steps towards the institutionalization of women’s and human rights in the fabric of Afghan society and its institutions.   With the establishment of the Afghan Interim Administration, people were very hopeful, but in truth the international community and the new Afghan government lacked the strong political will to build a democratic peaceful society. Instead of a long-term multi-dimensional strategy, planning was limited and the approach was incoherent. The international community did not fully understand the history and culture of Afghanistan and its ethnic and religious diversity. Every country that was involved in reconstruction implemented projects in their own way, rather than based on the needs of the people. Contracts were given to companies from their own countries, which then subcontracted to Afghan companies. Rather than employing young Afghans in a labour-intensive project and promoting community ownership of the project, the contractors used machinery and the profits enriched a few individuals.   The majority of the projects were designed by men and were not gender sensitive. For example, the contract to build the main road between Kabul and Kandahar, which is about 450 miles in length, was given to an American company for more than $700 million. Not a single public toilet was built for women who had to travel on this long road.   Unfortunately, the US viewed its intervention in Afghanistan as a success story and in 2003 invaded Iraq. Not only did the US lose its focus on Afghanistan, but the invasion of Iraq also fuelled the recruitment of young Muslim men by terrorist groups and the spread of more militant tactics such as suicide bombings. In Afghanistan, corruption and nepotism took hold in the highly centralized government, including in elections and democratic institutions.   The Taliban never fully disappeared from the country’s political reality, even after their removal from power in 2001. Instead, they spent the next 20 years fighting against the people, the newly formed government, and particularly against modernity and democracy in Afghanistan as represented by women’s participation in society. The lack of international coordination and problems within the Afghan government allowed the Taliban to exploit the deprivation in remote provinces to recruit children and unemployed young men to join the ‘holy war’. The US peace deal with Taliban on 29 February 2020 and lack of effective management by President Ashraf Ghani and his corrupt exclusive team allowed the Taliban to take control of the country. On 15 August 2021, all of the progress that Afghanistan had made in establishing institutions, rule of law, and women’s participation in economic, political, and social sectors of society was lost in a matter of days with the Taliban’s takeover.   The Return of the Taliban and Plight of Afghan Women   With their return to power on 15 August 2021, the Taliban abolished and reversed the hard-earned achievements made in two decades overnight. They made clear through their words and actions that they did not respect any of the laws. The Taliban Prime Minister publicly proclaimed that all the laws made by people are not good enough for the people, and that we need to implement the ‘Law of God’. Afghanistan is now the only country without a constitution.[4] The Taliban violates the women’s basic human rights that Afghanistan had committed to protect and promote, including the fundamental rights guaranteed in UDHR: freedom from any form of discrimination; the right to quality secondary and higher education; the right of access to quality healthcare services, including the ability to choose how many children one wishes to have; economic and employment rights; the right to political participation and decision making; and the right to freedom of movement. In fact, they apply gender apartheid in the country, without any fear of accountability.   The Taliban do not have a strategy for governance. Instead, in the years since 2021 they have issued more than three dozen decrees and statements that violate human rights and restrict women’s freedom, including:[5]   Banning women from most public life, work, teaching at high schools, universities, and employment in local and non-governmental organizations, including UN agencies, in violation of economic and employment rights. Banning women and girls’ schooling beyond sixth grade, including attending universities and higher education institutions, violating the rights to primary, secondary, and higher education. Forbidding schools from teaching the standard curriculum, which was replaced with their version of extremist education, violating the right to quality education. Banning women from entering public parks, public baths, gyms and sports clubs, a basic form of discrimination against women. Banning women from holding public office including judiciary roles, in violation of the right to choose one’s occupation. The compulsory veiling of women in public, even among the extremely limited number of permitted female TV anchors, who can be counted on one hand. Failure to adhere to this rule results in punishment for the male family member, ultimately reinforcing patriarchal control more than ever before.   In reality, there are no rights left to be taken from Afghan women. The Taliban’s overall strategy is to erase, discriminate against, and eliminate women from public life. They abolished the institutions that made these gains possible. While the former Afghan government and international community attempted to build institutions and enforce the rule of law, the Taliban did the opposite, seeking to deconstruct the legal and institutional bases of the nation. First on the chopping block was MoWA. Although MoWA could not solve all the problems of Afghan women and actions to promote gender equality were needed in all departments, it became an important symbol of the promise of women’s equality. When the Taliban abolished MoWA, they replaced it with the Ministry for the Propagation of Virtue and the Prevention of Vice.   The second institution that the Taliban abolished was the AIHRC, which played a central role in the promotion, protection, and fulfilment of human rights in general, and particularly women’s rights. The AIHRC had become a full member of the Asia Pacific Forum and also gained an ‘A’ status as a member of the Global Alliance of National Human Rights Institutions. The Taliban’s next step was to destroy the nation’s prospect for peace by undermining the entire concept and value of human rights. One of the basic tenets of Islam is that all human beings are born with equal dignity. However, the Taliban do not respect this equal dignity and view themselves as superior to all. They closed the Independent Election Commission, Election Complaint Commission, Constitution Oversight Commission, and all other institutions necessary for democracy and good governance.   Restrictions on education   Afghanistan’s Constitution of 1964 granted educational rights to all Afghan women and men, noting that:   Education is the right of every Afghan and shall be provided free of charge by the State and citizens of Afghanistan […] Primary education is compulsory for all children in areas where facilities for this purpose are provided by the State.[6]   In addition, the Afghanistan Constitution of 2004 emphasized the creation of educational programs for women and the elimination of illiteracy in the country:   Education is the right of all citizens of Afghanistan, which shall be offered up to the B.A. […] Afghanistan, the state shall design and implement effective programs and prepare the ground for teaching mother tongues in areas where they are spoken.[7]   The 2004 Constitution obliges the government to provide free and mandatory education to its citizens. Beyond the requirements of Afghan laws, the right to education is accepted as a core human right in various international standards. Discrimination based on sex or any other basis in the realization of this right is a violation of human rights. The right to education is recognized in the UDHR and the ICESCR. The CRC obligates states to provide mandatory and free primary education. According to the above conventions and the CEDAW, any form of discrimination against women is a violation of human rights. According the ICESCR:   The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.[8]   As a party to these international standards, Afghanistan is obligated to fulfil its commitments to provide and make education accessible to Afghan girls and boys. However, the Taliban is in full denial and violation of both Afghan national laws and Afghanistan’s international commitments regarding the right to education and behaves contrary to all its obligations. Afghanistan is the only country in the world to bar girls from secondary and higher education. The Taliban has also banned schools from teaching the standard curriculum and forces children to learn extreme interpretations of religion. As a result, the quality of education has deteriorated.   While the Taliban claim that their ban on education is Islamic, both their actions and discourse contradict not only international conventions and human rights norms and values, but also Islamic values for education. The first message to the prophet Muhammad (pbuh) was ‘Iqra’ (‘read’), emphasizing the value of education in Islamic principles. No other Islamic country in the world bans women’s education. Education of girls will not serve the Taliban’s long term political interest as educated women will not allow their sons to fall prey to Taliban recruitment and join their ranks.   The de facto government’s inability to ensure the safety of girls on their way to school, to protect the schools and to create an inclusive and secure environment for them to learn, coupled with a pervasive culture of impunity, has perpetuated a cycle of fear and hindered access to quality education. Women who work in education are being targeted and threatened. Terrorist attacks and bombings of educational institutions have continued to occur under Taliban rule. In one of the suicide bombing incidents on Kaaj Educational Academy in western Kabul, a predominantly Hazara minority neighbourhood, at least 50 people were killed and wounded over 100 others. The majority of victims were girls taking a practice university entrance exam. Burning girls’ schools and poisoning girls are some of the other tactics that the Taliban used to terrorize people. Hazara rights, like those of Hindus and Sikhs, are likewise violated with impunity.   In the aftermath of their transition to power, the Taliban briefly allowed women to attend universities, but later reversed this allowance. The international community’s failure to exert enough pressure to address this issue contributes to an ongoing educational crisis for Afghan girls and women. Afghanistan’s education crisis takes away the fundamental tool for the empowerment of every human being, particularly to the female population of a country. As a result, it contributes to discrimination and to widening the equality gap between men and women. There is an inverse relationship between education, child and maternal health care, and levels of poverty: access to education improves health and reduces poverty.[9] Banning the education of girls and women is not required by Islam; it is a political agenda to control half of the population in Afghanistan without any resistance.   Limitations on access to healthcare   Access to quality education and the right to health are closely connected. Educated women marry later, which itself reduces their childbearing years and allows them to choose the number of their children. Fewer children are also a tool for reduction of poverty and the empowerment of mothers.   Afghan women have been disproportionately affected by the lack of access to adequate medical services as a result of limited resources, inadequate infrastructure, and a shortage of trained female medical personnel. Women and girls are finding it extremely difficult to access healthcare; the situation is even worse for women in rural areas where clinics have been closed or women are not allowed to be treated by male doctors. Pregnancy-related complications and maternal mortality rates, which reduced between 2001 and 2022, have become alarmingly high in Afghanistan under the Taliban. The Taliban has now instructed pharmacies not to sell contraception. Limitations on accessing contraception and reproductive health care leads to more premature deliveries and an increase in the population, which in turn contributes to increase of poverty, domestic violence, child marriage, and forced marriages. Female children are sold to feed the rest of the family and all the protection mechanisms which were in place have been abolished.   Lack of educated young women will further reduce the female health providers in the country which is already low compared to the need and populations. Increases in the number of uneducated, unemployed, and frustrated young men will create an environment for terrorist and gang groups, including the drug smugglers and armed trades to recruit these men and have more soldiers. Afghanistan has witnessed an increase in child soldiers in some of its regions.   With the Taliban takeover of Afghanistan, the country is witnessing an empowerment of patriarchy in the region and beyond. A culture of impunity reigns, as violations of the human rights of women are ignored by the international community under the excuse of respect for religion and culture.   Conclusion   To destroy a nation, those in power can take three actions. First, they destroy and undermine quality education. Second, they support patriarchy inside and outside of the family, reducing women to an inferior role. This inequality in the family replicates itself in society. The oppression of women is a source of conflict and violence in the family and country as a whole. Third, they undermine the values of human rights, which has led Afghanistan to its present situation: an exclusive dictatorship comprised of a single gender and single ethnic group. Under the Taliban, Afghanistan is the only country without a constitution and is run based on the mentality of a few people who took power by force.   The current situation in Afghanistan underscores the profound interconnectedness of basic human rights. Without the right to healthcare and education, the empowerment of women is not possible. These elements are all integral pieces of the same puzzle, and the puzzle remains incomplete if any one of the pieces is missing. The ongoing culture of impunity surrounding these issues must be addressed through a coordinated effort involving Afghan women, international organizations, and community. Only by holding those responsible accountable and working toward the empowerment of Afghan women a sustainable peace will be possible.   The silence of the gun is not peace or security. Security and peace should be defined by the security of women from violence and freedom from discrimination. Women should be allowed to live with equal rights and dignity. The violation of women’s human rights in Afghanistan is not the problem of Afghan women only, but a problem of humanity. The lack of accountability and justice for war crimes, crimes against humanity, genocide, and gender apartheid currently occurring in Afghanistan fuels the culture of impunity. Injustice anywhere is injustice everywhere. Access to justice is not just a luxury that Afghan women cannot afford, it is a basic human right and central to life with dignity and peace.   The current condition of Afghanistan is a collective failure of the Afghan people, Afghan government, international community, and UN. It requires a collective approach based on human rights principles to solve the problem. As history has shown, the issue won’t remain confined within Afghanistan’s borders; it will inevitably extend to other regions. Sima Samar Sima Samar is a Hazara human rights advocate, activist and medical doctor within national and international forums, who served as Minister of Women's Affairs of Afghanistan from December 2001 to 2003. She is the founder of Shuhada Organization and in December 2019 was appointed as a member of the United Nations Secretary-General’s High-Level Panel on Internal Displacement. She is also a member of the UN Secretary-General’s High-Level Advisory Board on Mediation. [1] Universal Declaration of Human Rights (1948) < https://www.un.org/en/about-us/universal-declaration-of-human-rights > accessed 1 August 2024. [2] See Mary K Burguieres, ‘Feminist Approaches to Peace: Another Step for Peace Studies’ (2014) 19(1) Millennium: Journal of International Studies 2. [3] See ‘Transforming our world: the 2030 Agenda for Sustainable Development’ (21 October 2015) < https://documents.un.org/doc/undoc/gen/n15/291/89/pdf/n1529189.pdf?OpenElement > accessed 1 August 2024. [4] Ayaz Gul, ‘Taliban PM: Government, Nor Anyone Can Dare Amend Human Rights Set by God’ ( Voice of America , 9 July 2022) < https://www.voanews.com/a/6652117.html > accessed 1 August 2024. [5] Voice Amplified, ‘Taliban Policies Restricting Women’s Rights since August 2021’ (9 August 2022) < https://voiceamplified.org/wp-content/uploads/2022/08/Talibans-restrictions-on-womens-rights-since-August-2021-updated-0822.pdf > accessed 1 August 2024. [6] Afghanistan Constitution (1964), art. 34. [7] Afghanistan Constitution (2004), art 43-4. [8] International Covenant on Economic, Social and Cultural Rights (1966) Part III, art. 13 < https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights > accessed 1 October 2024. [9] Nadine Sika, ‘The Millennium Development Goals: Prospects for Gender Equality in the Arab World’ (2011) 12(3) Journal of International Women’s Studies 28.

  • International Law and Human Rights: The Way Forward

    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).

  • Foreword to CJLPA: The Human Agenda

    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).

Search

bottom of page