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Jean Tirole is a French economist who specialises in regulation, behavioural economics, industrial organisation, finance, banking, and macroeconomics. Considered one of the most influential economists of our time, he was awarded the Nobel Memorial Prize in Economic Sciences in 2014 and the CNRS Gold Medal in 2007. He is currently Honorary Chairman of the Toulouse School of Economics (France) and of the multidisciplinary Institute for Advanced Study in Toulouse (IAST), Visiting Professor at the Massachusetts Institute of Technology (MIT, US), and a member of various public policy committees. In 2017, Jean Tirole published  Economics for the Common Good , a general-audience book translated into 14 languages. He is also a Corresponding Fellow of the British Academy and an Honorary Fellow of the Royal Society of Edinburgh. He and MIT economist Olivier Blanchard have recently been appointed by President Macron of France to make proposals to address post-COVID-19 economic challenges. In conversation with Cambridge first-year historian Gabrielle Desalbres, he discusses the management of the COVID-19 crisis and the different paths to economic recovery.   Crisis management   CJLPA : In March 2020, the COVID-19 pandemic forced many states to implement national lockdowns, resulting in the interruption of almost all economic activity. Whilst the economic recovery from the 2007–08 subprime crisis was still fragile in most Southern European states, it was crucial for governments to intervene quickly and with sufficient means to avoid mass unemployment, social unrest, and widespread company bankruptcies. States are therefore borrowing at unprecedented levels. But how long can this last?   Jean Tirole : How much debt can a country sustain? There is no magic number; a 40% debt-to-GDP may be unsustainable for one country, while another can sustain 200%. It all depends on a range of factors: the country’s fiscal capacity (can it increase taxes further if needed?), its rate of growth (a given debt burden is much lighter in relative terms in a growing economy), the debt maturity (a short-term debt creates more pressure on countries to disgorge money for debt repayment than debt whose repayment is far into the future), the countries’ dominant political constituencies (which shape public policies, as was observed in the case of German exporting industries), or the debt’s ‘home bias’ (the percentage of debt held domestically. The higher this number, the lower the country’s incentive to default: over 90% of Japanese debt is held in Japan, so a sovereign default would amount to Japan’s shooting itself in the foot. By contrast, over half of the French sovereign debt is held by foreign investors).   Another lesson is that measuring debt is highly complex. Indeed, countries (and also regions, municipalities) do their best to hide new debt as ‘off-balance exposures’, despite improvements in Europe in their accounting a few years ago. Off-balance exposures are contingent liabilities which may or may not lead to a future disbursement: guarantees given to social security systems and public enterprises, ECB guarantees though the European Stability Mechanism, collective borrowing under joint and several liability per the European 2020 stimulus package, the securitisation of future revenue, and the use of derivatives (credit disguised as swaps) to conceal indebtedness. Even unfunded pensions, a big item in the pay-as-you-go pension systems of France and many other European systems, are counted as a contingent liability, even though citizens expect their pensions to be paid for sure. All those items are not part of a country’s formal debt, but they are certainly part of the debt.   CJLPA : Can governments keep borrowing?   JT : The pandemics have triggered an extraordinarily high increase in public debt. No-one exactly knows how big this increase will be in the end. This depends on how efficient we will be at ending the pandemic, but it will also depend on the subsequent macroeconomic crisis. In a country like France, many firms have taken on debt from the government (loans, unpaid social security contributions, etc). This debt, combined with the lost earnings during the pandemics, will make it hard for firms to finance new investments or even to survive. Some of it will just be forgone, adding to the state’s indebtedness. Tax revenues will also decline in the recession relative to the pre-Covid situation. And austerity might kill the economic recovery.   The increase in the public debt burden is a concern not only for emerging countries, but also for Southern Europe. The hard question is whether it is sustainable. As we discussed earlier, this depends in particular on whether countries will grow faster than the rate of interest at which they borrow. Can they roll over their debt or do they get in dire financial straits? The rate of growth is likely to be low in the years to come, but so will the rate of interest despite high public debt (high volumes of public debt in principle go together with high yields on them to attract enough savings). Precautionary savings and low corporate investment mean that savings will be high and the corporate demand for funds low, so savers will receive low returns. In theory, therefore, this large increase in public debt may be sustainable, but there are two caveats as is clear from the previous argument. First, the rate of growth must remain above the rate of interest for a substantial amount of time. Second, trust must be maintained and there must be no speculative attack. A country whose economic growth is at 1% can borrow very large amounts at a 0% rate of interest, but if doubts about country repayment emerge, international markets will demand a ‘spread’, say a rate of interest of 5%, and public finances will quickly be drained. Such speculative attacks are self-fulfilling phenomena and may (or may not) occur when the country is highly indebted.   Although one cannot have certainties in the presence of self-fulfilling phenomena, the situation is risky. One possible approach is to avoid contracting output through tight budgetary policies, but assuage the markets’ fear of profligacy by signalling intentions to better manage public expenditures and reorient the latter toward more investment and less consumption. Indeed, investment is what will create the conditions for the sustainability of the debt in the future.   CJLPA : An alternative might be to repudiate the debt…   JT : Two proposals are on the table. The first is to cancel the debts held by the central bank. A letter recently circulated within the Eurozone countries to call for the cancellation of debt held by the European Central Bank (ECB). This makes no sense. We would be defaulting on ourselves, because the ECB belongs to European citizens. Indeed, the ECB’s profit, net of its day-to-day running expenditures, is paid back to the member states’ treasuries. So what we would gain on one side—the alleviation of debt repayment—we would lose—exactly the same sum—on the other side. It is a mere  jeu d’écriture . Erasing the debt held by the ECB could alleviate the disparities between member states but it would consist of a fiscal transfer. Such a project would inevitably be opposed by Germany and the Netherlands whose public finances are strong compared with the rest of the EU, and would heighten the tensions between member states even further.   Some economists make a parallel between ‘coronabonds’ and the erasure of the debt held by the ECB, but the two are different. Member states have agreed to borrow jointly by issuing treasury bonds to cover the increase in public expenditures incurred during and after the sanitary crisis, thus securing common interest rates on the financial markets. But, except for the grants component of the program (which de facto is a set of transfers among countries), each member state in principle has to reimburse its own debt.   The second proposal is a broader default, euphemistically called ‘restructuring of the debt’, which would include among its victims private investors, and not only the central bank. Some of the cost of such a default of course would again be inflicted on the country itself. Italian banks hold a lot of Italian government bonds. A repudiation of the latter would weaken the Italian banks substantially and for some of them would lead to a bailout by the Italian government …   But even if the default had no direct financial impact on the country itself, it would still be problematic. Financial markets would lose trust in the government and refuse to lend to it, or lend at very high rates, for a number of years. This means that the government would have to more or less balance its budget overnight, which it has not done for a while (almost 50 years in France) and would definitely not be advisable in the forthcoming recession.   CJLPA : What about inflation?   JT : Inflation is a concern when a crisis occurs: the glut created by central bank injections of liquidity may in theory translate into inflation, too much money chasing too few goods. However, deflationary expectations and high precautionary savings by households and banks may reduce the spending and counter this natural trend. Indeed, the quantitative easing policies implemented by the Federal Reserve (Fed) and the ECB in the last decade did not lead to inflation and the jury is still out for what will happen this time.   Post-crisis management   CJLPA : You are a specialist in behavioural economics. In that regard, do you think economic agents will change their habits of consumption and lifestyles?   JT : To be honest, we don’t have a good answer to this, only a few hints. Ideally, having learnt about our collective fragility, we should come out of the crisis more prone to solidarity and more eager to substitute investment for consumption to prepare our common future, which includes being more respectful of our environment. But such a reckoning, such an embrace of a more forward-looking society, is not a foregone conclusion.   Part of the reason is that our beliefs are motivated. To give some analogy, we like to think that accidents and illnesses only afflict others, not ourselves or those close to us. This can lead to harmful behaviour, such as driving carelessly or not looking after our health (though this may not be entirely negative since worrying less also improves our quality of life). We dream of a world in which the law would not have to encourage or constrain people to behave virtuously, a world in which companies would stop polluting and avoiding their taxes, in which people would drive carefully even without police officers around. That is why movie directors invent endings that meet our expectations.   Just as in the case of driving and health behaviour, motivated beliefs, by making us more optimistic about the future, may lead to bad policies. Many people are (correctly) convinced that climate change is an existential threat, but they repress these thoughts. Or they believe that they should not have to incur a cost themselves to reduce their emissions: it is up to the others to do so. Or else they hope that the problem will solve itself thanks to phenomenal technological progress. In a similar spirit, nations which have had serious financial problems and have thereby lost their economic independence to the markets and the international official lenders and seen their growth vanish, most often have been oblivious of the incoming threats.   Will we behave differently with others after the crisis? Whether civil, international, or sanitary, wars leave their mark on society. Faced with anxiety-provoking events, people may reconsider their goals in life. Research in the social sciences shows that our individualistic tendencies decline, and we display more empathy. We behave more cooperatively and altruistically and are more likely to join social groups. Much of this new altruism however is parochial—it is directed toward those who are ‘on our side’. But unlike internal wars, external warfare generates common interests that bridge the gaps across groups. In the war against COVID-19, the in-group extends to all mankind and there is no out-group other than the virus, provided that ‘every country for itself’ fails to prevail. If this crisis exhibits the same gap-bridging pattern, this might be good news given the recent trend toward populism, nationalism, and ethnic and religious intolerance.   CJLPA : The current pandemic has resulted in an increased gap between the globalised élites and the left-behinds. How could these growing inequalities be managed?   JT : Inequality, which had already grown substantially (with differences across countries: they have grown much more in the UK and the US than in France), has been exacerbated by COVID. The young and the workers in gig jobs in particular have suffered: many self-employed workers in the service sector have been struggling to make ends meet.   But inequality is not limited to income or labour market inequality. One of the most detrimental forms of inequality is the educational one, as it underlies the equality of opportunity—a really fundamental one. Prior to the sanitary crisis, access to a good education was already highly socially determined. Things have gotten worse during COVID. In France or in the UK, top schools, from primary schools to higher education, have overall kept a relatively normal functioning, while pupils in disadvantaged ones often lost proper access. Covid has reinforced the impact of parents and housing conditions on school performance. This won’t have immediate consequences, but does not bode well for future growth rate and especially for a better access to good jobs, except for the happy few.   CJLPA : What do you think of the idea to implement a universal basic income? Could it be a solution to the growth of inequalities and to the ongoing upheavals brought by artificial intelligence (AI) to the job environment?   JT : Every country has some form of minimum income already, although not for everyone (the RSA jeune  in France for the under 25 has strict conditions). I find the debate rather confusing, in part because of semantic issues. It is crucial to specify how the tax structure would change in reaction to the introduction of a universal basic income. There is no reason to give access to this income to middle-class or well-to-do households, keeping the tax schedule as it is. This would be as senseless as was, on a smaller scale, Trump’s $2,000 COVID check for all. It would be extremely expensive for public finances and would not serve the goal of protecting citizens in dire financial straits. But if one offsets this transfer by altering the tax structure, de facto taking the money back from middle-class or well-to-do households, this is no longer a universal basic income. I therefore imagine that advocates of a universal basic income have in mind social protections and social transfers rather than a universal basic income.   There are two potential issues with a sizable universal basic income: its cost for public finances, that can crowd out other public expenditures such as education or health; and a potential lack of incentives to re-enter the labour force. (There are other issues in the case of very asymmetric incomes within the household—should the state provide the spouse of a well-to-do individual with a minimum income?—which can be solved by making the allowance means-tested.) One should preserve incentives to work. That may imply a combination of a lower minimum wage and a more generous negative income tax ( la Prime d’activité  in France, and the Universal Credit scheme in the UK), because too-important social transfers at the bottom discourage workers from taking poorly paid economic activities. In France, there are cases in which people prefer to be unemployed and to receive social benefits rather than taking a job which would, in the end, be less financially advantageous than not working at all.   AI is bringing new challenges and crucially, it is making the labour market even less welcoming to unskilled people. Here, the universal basic income is not the solution either because work is a source of dignity, a means of social recognition, and a structuring occupation. Places where unemployment rates are high exhibit more social trouble and crime. That is why more governments should be eager to develop continuing education programmes for the unskilled and those whose jobs will be affected by the AI revolution.   Finally, there is the issue of the youths—students, apprentices, etc. There could be support measures that are conditioned on milestones, such as passing the exams—in France university scholarships are too often unconditional. One can also envision low-cost loans to be reimbursed later on (up to some limits, to avoid over-indebtedness), with again the money handed out conditional on progress in the selected track. One of the major forms of inequality among students, together with the lack of information about the skill premium and the good tracks at school and university, is the need for poor students to have a part-time job on top of their studies.   CJLPA : In the UK, there are calls to set up a wealth tax to reimburse the COVID debt. In France, the wealth tax is a recurring source of debate. What do you think of a wealth tax and how effective is it in bringing new sources of revenue for the states?   JT : I am not an expert on this, and will content myself with a couple of remarks. First, regardless of one’s stance on the issue, there is agreement that the recent abolition of the wealth tax in France involved only small amounts of money: the cost of the switch to a tax on real estate wealth is estimated at around 2 or 3bn € per year, about a thousand times smaller than GDP. One may be in favour of or against the wealth tax on symbolic grounds, but the economist has little to say on that. Second, to have a better idea about the implications of a wealth tax, other issues need to be discussed, such as its relationship to other existing taxes such as capital taxation and the inheritance tax, as well as the likely fraction of successful citizens who emigrate to escape the wealth tax, a fraction on which we don’t have good estimates. We don’t have international agreements that would allow us to levy a uniform tax, say, in the West. Most economists concur on the idea that taxing better would be facilitated by international cooperation.   CJLPA : How has the COVID crisis impacted the gap between the Souths and the Norths, within the EU and beyond? Do you think the pandemic has accelerated the divergence between China and the West?   JT : Like traditional wars, the pandemics will redistribute the cards, although we have little knowledge on the magnitudes. So, if you are willing to take the following with a grain of salt, I would expect Germany to strengthen its economic role within the European Union. It entered the pandemic with much stronger public finances than most other member states, and so it could afford spending much more money to protect its firms, which were already more successful than European firms.   At the international level, the monetary and economic hegemon, the US, has suffered a blow through its mismanagement of the pandemic, and a much higher blow still from the Trump years more generally. The policies of the last four years have been very short-termist: denial and inaction on the climate front, loss of international credibility and undoing of the world multilateral order, protectionism, high public spending, tolerance of high inequality. The US has resources though, in particular access to the world’s top universities and a flourishing innovation ecosystem. It also has much leeway in raising taxes to stabilise public finances, and its currency is still internationally dominant.   But China will probably emerge strengthened on the international scene, and it has been massively investing in education and R&D so as to become an innovation powerhouse. The times are long over in which it focused on commodities. Emerging and less-developed countries will be penalised if they don’t gain quick access to cheap and easily deliverable vaccines. This is really a concern. China and Russia have noted this and are using soft power by providing vaccines (they had earlier provided medical supplies) to a number of countries in Latin America, the Middle East, Turkey, Brazil, and the Balkans. Vaccine diplomacy is also used by India with its neighbours. In contrast, the WHO COVAX initiative of vaccine procurement for poor nations has had a slow start.   CJLPA : This pandemic has shed light on the EU and the UK industrial dependency on China and other emerging economies, with all the consequences we know. Some politicians have called for a targeted reindustrialisation. But is it really possible in practice?   JT : Globalisation progressed very rapidly from the seventies to the global financial crisis. This growth is due to a number of factors: technological evolution (the ICT revolution, containers), multilateral and especially regional trade agreements, and the accrual of a new labour force from communist countries (China, Eastern Europe…).   There have been many calls, especially since COVID, to re-localise the value chain. I doubt that this will happen on a large scale. Indeed, the fixed costs of offshoring have been incurred already. They are in large part sunk: the value chains are in place and they are sticky. Besides, the solutions to supply disruption can often be found abroad: even in the health sector, French citizens benefit substantially from their access to foreign vaccines. Relocation is not synonymous with resilience: disruptions in France were linked to China in January 2020, to Europe in April 2020.   CJLPA : Are the benefits of globalisation worth the cost?   JT : There are two distinct issues that are often confounded. The first relates to globalisation in general. Globalisation is overall beneficial, but it creates winners and losers. It provides consumers with access to the best the world has to offer; it frees them from being captive to powerful domestic producers and distributors. It creates jobs in exporting industries. But it also destroys jobs in exposed sectors, as workers in the US, the UK, and Europe have learnt the hard way with the ‘China trade shock’. The new jobs that are being created often are not created in the same region, or necessitate different skills. Furthermore, we have not been very good at protecting workers after they lose their jobs, and also before they do (by reskilling them), again with differences: continental Europe has a more extensive welfare system than the UK and especially the US. The problem, therefore, is that trade has major distributional effects that are salient, more so than technological progress, and lead to bad politics.   Advanced countries must move upmarket. They cannot compete on wages, so they need to go for high-value-added segments, what Germany has done better than anyone in Europe (or what the US has done in the tech and pharmaceutical segments). But this requires substantial R&D, worker training, a better education, top universities, making industrial jobs more attractive in school…   The second issue is that of bringing back home a number of ‘essential activities’ that were offshored in the last 40 years. The goal of such ‘reshoring’ is to protect ourselves from disruptions in the value chain, geopolitically motivated or resulting from a natural disaster. For me, ‘home’ means Europe, which has a more reasonable scale than member countries. Production is often subject to high returns to scale, and member states often do not have the required scale to sustain a competitive industry.   We need to make a distinction between supplies that are essential in times of crisis, and ordinary consumer goods. For the former, the market just doesn’t work. It generates extremely high prices and market power in periods of shortages. Those familiar with electricity systems will note the analogy with power plants which are used for a few hours—ultra peak—a year. For the latter, the diversification of the supply chain is the prerogative of companies.   The issue for public policy will be to resist lobbies, which will seek either protection or preferential treatment in public procurement, claiming that their activity is ‘essential’. It is not clear to me for example that food or supermarkets are part of countries’ sovereignty, especially in Europe which has maintained its agriculture. But of course, military equipment and critical healthcare resources may allow our countries to be less subject to geopolitical blackmailing or be more resilient in case of a world shortage of supplies. My point here is that we need to be flexible. Do we need to relocate or simply constitute stocks to protect ourselves against temporary shortages? Is the supply chain sufficiently diversified across the world? Can we use refitted equipment or 3D printing to make up for a temporary shortage? There is no universal answer and a case-by-case approach must be used.   CJLPA : Are economic activity and action against climate change compatible?   JT : Almost 30 years after the Rio summit, we still have done little to address the truly existential threat of global warming. Solutions exist, and I do not believe in the end of growth, but we must accept some temporary cost in our standards of living. At the opposite end of the spectrum in the debate, I do not believe in the concept of green growth, according to which we could have our cake and eat it too, either. If such a win-win were to hold, why is almost every country in the world concerned about reducing its carbon imprint? Let’s have the courage to say that our planet is worth some effort.   The solution will come primarily from incentives. A sizable carbon tax will induce households, corporations, and administrations to do something serious for the planet: even a relatively small carbon price can have large effects in some cases, as the UK’s exit from highly polluting coal since 2013 demonstrates. To be certain, some of these actors have already started to act because they are afraid that their assets end up stranded when carbon will be phased out totally. But this is not sufficient.   And pricing carbon must be complemented with multiple measures. These include compensation of households who lose from carbon pricing (the absence of compensation played a role in the ‘ gilets jaunes ’ revolt in France), the use of standards whenever carbon   pricing is difficult to implement, a very intense R&D effort, and of course a multilateral approach. ‘My country first’ is a sure recipe for an ecological disaster.   CJLPA : How do you understand the role of the economist in the polis?   JT : Economics is a deeply normative field. To produce a policy framework and try to make this world a better place, it analyses situations in which individual interests are in conflict with the collective interest and how to set these individual interests to music so that they work for the common good.   But public policies require voters’ support, and therefore information about the tradeoffs involved in the choice of specific policies. The second role of economists, and experts more generally, is as conveyors of knowledge. This is not an easy task, as many policies are complex and have unintended consequences. Most academic economists spent their entire life in a research environment and, with their jargon and caution in the presence of complex effects, do not always communicate well. And because, like all scientists, their DNA is doubt, they are not at ease with the soundbites and certainties characteristic of much communication today. In any case, a properly functioning democracy is one in which citizens have sufficient knowledge of tradeoffs. There is a role for acculturation. It is therefore important to make economics widely accessible and even fun, for economics resembles any culture. Like music, literature, or sports, the better we understand it, the more we like it.   Before the Nobel, I spoke to economists and experts in ministries, regulatory authorities, companies. The Nobel was a tipping point. I met quite a number of people, sometimes just unknown people in the street, who simultaneously demonstrated a real interest, but had many questions about what economists do, whether they are useful, whether economics is a science, whether the key challenges we face can be solved. This made me aware of my responsibility to get out of my laboratory, explain my job, and share more of my knowledge, not being a news commentator but simply talking about what economic research has to say about our world.   CJLPA : But experts can also fail…   JT : Experts’ judgment may be impaired by money, friendships, a desire to become a ‘public intellectual’ and occupy the media space, a political agenda. A ‘neutral expert’ is of course a bit of an idealisation. Transparency rules about financial conflicts of interest are useful but necessarily imperfect, and the other forms of conflict of interest are even harder to detect. So in the end, individual and collective ethics—including the obligation of not saying in the public space things one would not stand for in a seminar room in front of peers—are needed. But experts are the best we can avail ourselves of for our democracies to function well. Without them, any argument, any narrative, goes.   In these times of populism, people with expert knowledge are dismissed. Populists exploit the ignorance and prejudice of voters. They fan widespread hostility to immigrants, distrust of free trade, and xenophobia, and play on people’s fears. They excel at exploiting real and justified anxieties about technological change and employment, the financial crisis, the slowdown in economic growth, rising debt, and increasing inequality. No wonder that all over the world their speech often echoes Michael Gove’s pre-Brexit ‘people in this country have had enough of experts’. And of course, populist programmes have contempt for elementary economic mechanisms. Hence, whatever their field of study, experts—provided that they are humble and transparent about what they know and don’t know, that they recognise they are not familiar with everything but have a rather specialised knowledge—are more valuable now than they have ever been. Gabrielle Desalbres, the interviewer, is a first-year undergraduate in History at Trinity College, Cambridge, interested in politics, the arts, and early modern history.

I became an atheist at the age of eight. After one of my Hebrew-school teachers devoted a 90-minute class to recounting her experiences in a Nazi concentration camp during the Second World War, I went home and read a lengthy encyclopaedia article on Nazi Germany. Within four hours of reading that article, I had irretrievably lost my belief in God. Over the years, my disbelief in God has become even more robust than my disbelief in Santa Claus and the tooth fairy. However, unlike some atheists and most agnostics, I am hardly uninterested in God and religion. For one thing, my attitude toward God is not one of indifference; rather, it is one of revulsion. That attitude stems partly from my systematic study of the Bible for the past 40 years. Although my main areas of scholarly expertise are political and legal and moral philosophy—rather than theology or the philosophy of religion—my principal avocation since the early 1980s has been the writing of a commentary on the Bible. Why would an atheist engage in such an endeavour? I began to read the Bible systematically in early 1982 because I wished to enhance my understanding of philosophy. From the mediaeval period through the early twentieth century, virtually every Western philosopher of any consequence presupposed that his readers were intimately acquainted with the Bible. While studying Philosophy as an undergraduate, I was particularly struck by the fact that nearly all the great figures of the early modern era—Thomas Hobbes, John Locke, Baruch Spinoza, George Berkeley, and so forth—were thoroughly grounded in the Scriptures. Their philosophical works invoke Biblical passages and characters with easy familiarity. Even the fervid atheist Friedrich Nietzsche in the nineteenth century displayed an impressive knowledge of the Bible. (Nietzsche’s The Antichrist is a tour de force of Biblical exposition, however far-fetched some of it may be.) Thus, while I was still an undergraduate, I recognized that I could not fully understand many of the premier texts of the Western philosophical tradition without an excellent knowledge of the Scriptures. I began to study the Bible systematically during my first year as a postgraduate. (For the first decade of that study, I devoted 2-3 hours every day to the endeavour. Thereafter, I have devoted 60-90 minutes to it each day.) I had acquired a pretty good knowledge of the Hebrew Scriptures as a boy, but now I was setting out to read both the Hebrew Scriptures and the New Testament with the eye of a philosopher. During the first 18 months, I read the Bible from cover to cover three times without writing anything beyond marginal annotations. Thereafter, however, I began to compose a passage-by-passage commentary to make sense of the text as I went along. The commentary—which for the first several years was handwritten—has now grown to approximately 3,600 pages. I have written it purely for my own edification, but over the years I have gradually polished it into something that might eventually be suitable for publication. At very few junctures in my commentary does my atheism become apparent. Poking holes in Biblical claims about God is far too easy and is thus uninteresting. Instead, my commentary seeks to understand those claims from the perspectives of the people who advanced them. I am continually asking why the writer of some book of the Bible would think that the ascription to God of a certain property or command or action or accomplishment is so important. Very often, the answer to the question just broached is that the Scriptural authors were resolutely concerned to differentiate their God from the gods of surrounding peoples. For example, the Torah’s prohibition on boiling a kid in its mother’s milk (Exodus 23:19, 34:26; Deuteronomy 14:21)—a prohibition that is the basis of the strict separation between meat dishes and milk dishes in modern kosher cooking—is best explained by reference to the pagan fertility rites that were widespread in the ancient Middle East. Instead of deriving principally from hygienic considerations or from solicitude for animals, the Torah’s prohibition almost certainly stemmed principally from a determination to distinguish sharply between the Hebrew religion and the neighbouring creeds whose adherents paid homage to fertility goddesses by sacrificing kids and calves in their mothers’ milk. My original aim of improving my understanding of Western philosophy has been realised. Though I do not write on the philosophy of religion, my study of the Bible has significantly shaped my thinking about a number of issues in the areas of philosophy on which I do write. Over the years, however, that original aim has come to be supplemented by other reasons for my avocation as a Biblical scholar. Such a pastime not only improves one’s understanding of Western philosophy, but also greatly enhances one’s understanding of Western culture more broadly. While the Bible has heavily influenced many philosophers, it has likewise heavily influenced countless artists and writers and composers (among others). Some of the richness of Western art and literature and music is lost on anyone who does not possess a good knowledge of the Scriptures. Let me offer a single fine-grained example to underscore this point. In the famous scene in Tess of the d’Urbervilles where Alec d’Urberville rapes or seduces Tess, Thomas Hardy writes as follows: ‘But, might some say, where was Tess’s guardian angel? Where was the providence of her simple faith? Perhaps, like that other god of whom the ironical Tishbite spoke, he was talking, or he was pursuing, or he was on a journey, or he was sleeping and not to be awaked’.[1] Now, unless readers know that the phrase ‘ironical Tishbite’ refers to Elijah, and unless readers are familiar with the story of the confrontation between Elijah and the Baal-worshippers in 1 Kings 18, they are likely to miss the full ironic significance of Hardy’s wording. (Indeed, they will probably be rather puzzled by his wording.) In particular, they will not readily grasp that Hardy in his brief discussion of God’s providence—‘the providence of her simple faith’—was redirecting against God a classic and sardonic expression of disbelief in the existence of an alternative deity. A further benefit of Biblical study lies in the literary magnificence of many parts of the Scriptures. The exquisite story of Joseph and his brothers in the final quarter of Genesis is itself sufficient to ensure the Bible a place among the greatest works of world literature, yet a number of other Biblical narratives—such as the story of David and Absalom, and the Parable of the Prodigal Son—are at almost that same level of supreme excellence. Much of the Bible’s poetry (in Job, quite a few of the Psalms, Hosea, Isaiah, Jeremiah, Micah, the Song of Solomon, and so forth) is among the finest produced in any language. Thus, although long stretches of the Bible are tedious or repellent or baffling, a student of the Scriptures encounters many literary jewels as well. Familiarity with the Bible broadens one’s mind in a number of respects. Coming to grips with cosmological assumptions and ethical assumptions very different from one’s own is an edifying venture. Moreover, anyone who examines the Bible with intellectual honesty cannot fail to be aware of its many shortcomings, some of which are egregious. One’s awareness of those shortcomings can temper one’s criticism of other religions. Consider, for example, the current propensity of Muslim extremists in various parts of the world to engage in murderous mayhem. On the one hand, the claim that their evil acts of carnage have nothing to do with Islam is simplistic at best. Anyone who has perused the Koran with intellectual honesty will be aware of the hideous passages on which the Islamist fanatics can and do seize in order to ‘justify’ their terrorism. On the other hand, the perception of a basic divide between the Koran and the Bible in this respect is likewise simplistic. The Bible teems with as many ghastly passages as the Koran. It lends itself to being cited in support of iniquities just as readily as does the Koran. Hence, given that there are no grounds for thinking that the sacred texts of Christianity and Judaism are indissolubly linked to terrorism, there are no grounds for any corresponding accusation against the sacred texts of Islam. An acquaintance with the Bible enables one to recognize this point clearly. The abundance of rebarbative passages in the Bible is another reason for atheists to familiarise themselves with it. Although my commentary seldom gives voice to the atheistic repugnance that I feel toward God, my systematic study of the Bible has made me thoroughly familiar with the numerous discreditable aspects of the Biblical texts. Thus, I can retort knowledgeably to believers who suggest that moral principles are in need of God and the Scriptures as their foundations. Even if the correct basic principles of morality were somehow in need of foundations beyond themselves, the Bible would be too nefarious for the purpose. Those principles would not be strengthened by being associated with the genocidal directives of the God of the Hebrew Scriptures, or with the scurrilous fulminations of Christ against his opponents, or with the Stalin-like gloating of the God of the New Testament at the thought that everyone who has not been sufficiently deferential toward Him will suffer torture for all eternity. Lest the foregoing paragraph may seem too glum, I shall conclude with a relatively light-hearted reason for studying the Bible. A survey of the Biblical texts reveals a host of common sayings that have taken on meanings very different from their original meanings. Hence, a knowledge of the Bible is invaluable for anyone inclined to be pedantic. I could offer more than twenty examples of the sayings that I have in mind, but I have space here for only a few. In Deuteronomy 8:3 and in Matthew’s and Luke’s gospels (with Christ’s response to the first temptation), we encounter the aphorism ‘Man does not live by bread alone’. In the present day, that maxim is almost universally taken to mean that bread is necessary but not sufficient for human flourishing. In its original Biblical context, by contrast, the maxim means that bread is sufficient but not necessary for human flourishing. (In Deuteronomy, bread was unnecessary because God sent manna instead; in the gospels, bread was unnecessary because Christ was able to survive on purely spiritual sustenance.) Another expression almost universally used today with a meaning markedly different from its meaning in its original Biblical context is the claim that certain people are—or behave as if they are—‘a law unto themselves’. When such a formulation is invoked today, it is almost always employed disapprovingly to indicate that certain people arrogantly regard themselves as unbound by the legal or moral restrictions that apply to other people. However, when Paul coined that phrase in his Letter to the Romans 2:14, he was using it commendatorily with reference to righteous Gentiles. Those Gentiles conducted themselves in accordance with the moral requirements of God’s Law even though the Law had never been revealed to them through the Scriptures. Such people were not in need of any acquaintance with the Scriptural presentation of the Law, because they were ‘a law unto themselves’. One further example of a saying that has taken on a meaning at odds with its original Biblical meaning is the assertion that ‘the left hand does not know what the right hand is doing’. In contemporary usage, such an assertion indicates that some endeavour or situation has become muddled as a result of a dearth of coordination between different individuals or between different components of an organisation. Quite dissimilar was the message of Christ when he enjoined his followers in the Sermon on the Mount to refrain from making public their charitable deeds: ‘But when you give alms, do not let your left hand know what your right hand is doing, so that your alms may be in secret; and your Father who sees in secret will reward you’ (Matthew 6:3-4). Christ was counselling his disciples that they should not ostentatiously exhibit their virtues in order to win the esteem of their contemporaries. Instead, they should be so modestly discreet in their almsgiving that even their left hands would not know what their right hands had doled out. To be sure, the Bible is by no means the only source of commonly misconstrued adages. Shakespeare’s works, which are another preoccupation of mine, are likewise such a source. (For example, Hamlet’s remark about ‘a custom more honoured in the breach than the observance’ is hardly ever quoted in accordance with its original meaning.) Still, precisely because the Bible has wielded such an immense influence on virtually all aspects of Western culture, it is a uniquely rich provenance of sayings that have entered into everyday discourse. And because the Bible today is much more often echoed than read, its sayings are frequently misunderstood. Thus, I recommend Biblical study not only for the serious reasons recounted above, but also because it is a wonderful basis for pedantic one-upmanship! Matthew H Kramer Professor Matthew H Kramer is a legal philosopher and a leading proponent of legal positivism. He is Professor of Legal and Political Philosophy at Churchill College, Cambridge, and heads the Cambridge Forum for Legal and Political Philosophy. [1] Thomas Hardy, Tess d’Urbervilles (Broadview Press 1996) 103.

As a key European Union (EU) foreign relations instrument, the European Neighbourhood Policy (ENP) governs the relations between the Union and sixteen countries to the east and south of EU territory.[1] These countries are primarily countries which aspire to become an EU member, or to pursue closer integration policies with the EU in general.[2] The key focus of the ENP is that of stabilising the EU neighbourhood in terms of economy, politics, and security.[3] In exchange for EU financial assistance, countries must meet strict conditions for governance and economic reforms, as articulated in the EU Association Agreements between its own government and Brussels.[4] Association Agreements concluded between the EU and partner countries typically stipulate commitments to economic and human rights reforms to be carried out, in exchange for tariff-free access to parts of the single market, and various forms of technical assistance. In 2011, the European Commission (EC) articulated in its ‘Review of The European Neighbourhood Policy’ that the ENP’s focus was to build ‘deep and sustainable democracy and inclusive economic development’.[5] The Joint Communication issued the same year conceptualised the ENP as a guardian of the ‘stability, prosperity and resilience of the EU’s neighbourhood’, rather than a custodian of democratic advancement, suggesting a slight shift from the original focus on promoting democracy as one of the ENP’s foreign policy initiatives to an emphasis on promoting the EU’s security interests.[6] Nilsson and Silander argue that the paradigm change from promoting democracy to enhancing regional security manifestly confirms the EU’s implicit admission of the ENP’s inadequacies in fulfilling the former endeavour.[7] I argue that the ENP has largely been effective in promoting formal democratic reform, in terms of setting up electoral institutions and legislative infrastructure in the Eastern Neighbourhood,[8] but has failed in promoting democratic values and adopting principles of good governance, for example by implementing anti-corruption policies or empowering civil society. In addition, I suggest that the limited progress of democratic advancement in the EU’s neighbourhood is a result of the ENP’s intergovernmental organisational logic; the existing institutional structure enables elites to strategically adopt an ostensibly democratic apparatus while neglecting the promotion of normative democratic principles. This essay draws on quantitative and qualitative evidence and focuses its discussion on the Eastern Neighbourhood. Conventional literature on the EU’s democratising impact has highlighted conditionality as one of the main causal modes.[9] It assumes that EU target states are rational actors in the international system, motivated to maximise their economic and security interests, and that strategic exchange between actors is conditional upon their relative bargaining power.[10] It follows that the larger the gains target states perceive from adopting the EU’s conditionality requirements, the greater the likelihood of reforming their internal governance structures.[11] While the EU does not initiate coercive intervention under this model, the domestic adoption costs may upset the target state’s internal status quo, particularly if presiding governments are soft authoritarian regimes.[12] Throughout the years, the Southern Neighbours have struggled to gain EU membership; Turkey’s progress has been tumultuous and uncertain, and Morocco’s application was rejected in 1987. Considered against the later enshrinement of the geographic membership criterion, scholars have asserted that the Eastern Neighbours generally have more incentive to adopt democratic reforms as compared to the Southern Neighbours.[13] The Southern Neighbours vary widely in terms of the depth of their economic links to the Union; Scazzieri’s study is illuminative regarding the lesser economic gain these countries perceive from potential EU membership, particularly in view of the substantial government reforms needed to adhere to EU conditionality requirements.[14] The regional strife and political turmoil following the Arab Spring in 2011 has also rendered many of these states hesitant to adopt institutional democratic reforms. The causal mechanism between conditionality and the relative success of formal democracy over substantive democracy has not been addressed thoroughly enough in existing literature and warrants further discussion. To this end, this paper illustrates how conditionality under the ENP is effective in promoting democracy among the Eastern Neighbours, only to the extent that their governments have been able to perceive economic benefits from instituting reforms. I begin by surveying the organisational logic of the ENP and the Eastern Partnership, after which I examine the skewed progress of democratic advancement among the Eastern Neighbours in relation to indicators of formal democracy and substantive democracy. I then discuss how elites have abused the ENP’s top-down operational practices and manifestly slanted the democratic advancement of the Eastern Neighbourhood towards the formal adoption of democratic apparatus, and at the expense of substantive democracy. I conclude by refuting the purported significance of Russian influence as inhibitory towards democratic advancement in the region. The ENP was originally conceptualised as a catalyst of ‘ democracy, rule of law, respect for human rights and social cohesion ’ for states without EU membership prospects.[15] Ever since its official establishment in 2004, this foreign policy initiative has run in tandem with the EU’s policy aim of enlargement.[16] Under this framework, the EU formulates bilateral Association Agreements which set tangible goals for democratic governance. Fulfilment of such conditionalities allow target countries access to economic and technological rewards.[17] Critics have often described the relationship as ‘coercive’ and ‘asymmetrical’; nevertheless, it is largely the EU’s attempt at transforming its neighbourhood through soft, ideational power as opposed to military intervention.[18] The Eastern Partnership (EaP) was launched in 2009 as an Eastern dimension of the ENP; with a particular focus on the Eastern Neighbourhood including Caucasian and former Soviet states.[19] While formal democracy is contingent upon electoral practices and mechanisms, substantive democracy is based not only on ‘citizens’ [participation] in the making of decisions that concern them, but also that decisions must not be served wrapped in a shroud of ignorance’.[20] Measurement of substantive democracy therefore requires an examination of the outcomes of democratic governance and practice, with a focus on fairness, equality, and justice. Insofar as democratic procedures alone cannot overcome inequalities between individuals by mobilising political resources to their benefit, certain democratic principles must be incorporated into governance structures and policies.[21] Addink further operationalises the definition of substantive democracy to encapsulate ‘good governance’ principles such as establishing strong democratic norms, accountability systems, independent anti-corruption institutions, and legal-rational guarantees of media freedom and independence.[22] Building on this, Pridham conceptualises the ENP’s promotion of democracy as a two-track model.[23] Under this model, the ENP promotes both formal and substantive elements, but in a disjointed manner. As a result, a country may succeed in the former while completely neglecting the latter. This is apparent in Moldova’s electoral development: in the early 2000s, Moldova’s parliament required at least 6% share of the primary vote for political parties to be represented in the legislature, 9% for two-member electoral blocks, and 2% for three and more member-coalitions.[24] This arrangement severely undermined pluralism in the Moldovan parliament, as measured by the number of parties as an indicator for formal democracy. In 2005, the European Parliament Resolution on Parliamentary Elections in Moldova directed the country to reduce this threshold to 4% for political parties and 8% for electoral blocks, so that smaller parties could have greater representation in civic discourse. [25] Furthermore, the EU-Moldova Action Plan (2005) exemplifies the formal aspects of democracy by prioritising the ‘the stability and effectiveness of institutions guaranteeing democracy [and] ensuring the democratic conduct of parliamentary elections…in accordance with European standards’.[26] Moldova’s significant degree of adherence to formal democratic reform has not, however, been matched by attention to aspects of substantive democracy. Despite recommendations on the empowerment of civil society, media transparency, and attempts at combating corruption, official descriptions of such initiatives have been equivocal and rarely been scaled against a quantitative benchmark.[27] The stark contrast as observed between indicators of formal democracy and substantive democracy is indicative of how the Moldovan government has pursued the two tracks of democracy with different degrees of commitment. As per this two-track model, it is evident that while the ENP has successfully influenced Eastern Neighbours into adopting formal aspects of democracy through electoral mechanism reform, the latter have not undergone further development in terms of substantive democracy. Inhibitors of substantive democracy and good governance such as corruption and elite nepotism, media repression, and poor political representation of civil society have not been eradicated. As will be explained in the following sections, this two-track model results in the consistently poor scores of Eastern Neighbours in various democracy indicators. In particular, negative trends have been reported, based on heavily-weighted substantive democracy factors. Ukraine’s case further demonstrates the uneven development and entrenchment of formal democracy and substantive democracy. Having consistently improved its electoral integrity per the EU directive, the International Election Observation Mission concluded that ‘ voters [were able to make] informed choices between distinct alternatives and to freely and fairly express their will’ in Ukraine’s 2006 parliamentary elections.[28] In July 2019, the Parliament approved a new Electoral Code that had begun being drafted in 2015, providing for a proportional representation system which combined an open and closed party list system, as well as a new system for local elections.[29] The EU-Ukraine Association Agreement established the primary reform objectives in the country, and following these developments, Ukraine held open and democratic presidential and legislative elections in 2019, marking the country’s first peaceful shift of power since the events of Euromaidan.[30] These examples demonstrate how EU directives have substantially improved formal democracy in Ukraine. Nevertheless, factionalism continues to account for conflictual relationships between elites, at times even leading to constitutional crises; power struggles over anti-corruption reforms between the Constitutional Court of Ukraine, the Ukrainian Parliament, and the President have gripped the country since October 2020.[31] As for media freedom, Ukraine has consistently ranked around 90th out of 180 countries from 2006 to 2020; its Freedom House score of 62 in 2020 only puts it in the ‘partly free’ range.[32]Ukraine’s EIU democracy index has dropped from 6.94 in 2006 to 5.81 in 2020, further demonstrating the dearth of substantive democratic norms in the country.[33] Prevailing corruption problems also remain a contentious issue. Although Ukraine revamped its anti-corruption legislation in 2011 and 2014, selective law enforcement severely hampers its operation.[34] In 2019, Zelensky’s presidency even commenced with the pursuit of a corruption investigation against his predecessor.[35] Although the country’s Corruption Perceptions Index (CPI) score has incrementally improved from 2.8 in 2006 to 3.3 in 2020, anti-corruption campaigns still emphasise form over substance. In Moldova and other Eastern Neighbours, there is a similar trend of unequal development between official (formal) democracy and genuine (substantive) democracy. The EU-Moldova Action Plan established a framework for Moldova’s domestic institutions and foreign policy that was compatible with EU membership standards; the Law on Whistleblowers was implemented in November 2018, following major democracy-related aspects of the EU Action Plan.[36] New regulations provide legal protection for anyone ready to testify about wrongdoings and irregularities, as well as a specialised reporting mechanism.[37] Moldova held its first parliamentary elections in February 2019, adopting a mixed electoral system of one national constituency in which fifty one legislators were elected by first-past-the-post in single-member constituencies and fifty were elected by proportional representation from closed party lists.[38] Nevertheless, while Moldova’s Bertelsmann Transformation Index (BTI) score—which sheds light on the quality of substantive democracy—has seen incremental improvement from 5.40 in 2006 to 5.80 in 2020,[39] this trend is often attributed to the protests in 2009, 2015, and most recently, in 2019.[40] In 2009, in the wake of an allegedly fraudulent election in which the governing Party of Communists of the Republic of Moldova (PCRM) won a majority of seats, civic unrest rocked several Moldovan cities.[41] The movement represented a turning point in contemporary Moldovan politics. Having held snap elections after Parliament was dissolved, the Alliance for European Integration, a centre-right anti-communist ruling coalition, was created in response to the PCRM’s victory in the July 2009 polls, paving the way for closer Moldovan-EU relations and a greater drive to fulfil EU conditionality requirements in the years to follow.[42] After the fall of the PCRM in 2009, the unfulfilled hopes that Moldova may institute governmental reforms of transparency and accountability ultimately paved the way for the 2015 protests, far exceeding the scale of their predecessor. Finally, in 2019, a constitutional crisis and subsequent attempts to form a new government culminated in the positions of President, Prime Minister, and Speaker of the Parliament being contested by competing claims.[43] This unleashed a movement of protests in which opposing factions rallied their support for different candidates. Apart from calls for the government’s resignation and the annulment of recently approved laws, the protests have illuminated how Moldovan-EU relations have transcended the institutional level by galvanising democratic advancement, having socialised the Moldovan polity to expect higher standards of transparency and accountability from their government. With the internalisation of democratic values and good governance principles, these examples demonstrate the inextricability of Moldovan-EU relations from democratic progress and political awakening in the country on the level of both institutions and the citizenry. In comparison, Belarus’ BTI score remained the same at 4.38 throughout 2006 to 2020.[44] It is worth noting that while Belarus did experience protests against President Alexander Lukashenko in 2005, followed by a subsidiary movement in 2006, these were quickly and heavily suppressed by the police.[45] Similarly, Azerbaijan’s BTI score has even noted a 0.37 fall from 3.80 in 2006 to 3.43 in 2020.[46] Although protests against an alleged government fraud in parliamentary elections erupted in Azerbaijan in mid-2005, the movement subsided after five months when the police eventually suppressed riots with tear gas and water cannons.[47] These examples illustrate that progress in various democracy changes remains negligible, if not regressing, among certain states of the Eastern Neighbourhood. I will now consider the reasons for the incongruence between formal and substantive democratic norms as brought about by the institutional framework under the ENP. An examination of the causal mechanism necessitates a dual consideration of the role played by elites as well as the EU policy net. The ENP imposes rigid conditionality requirements on partner countries. As elites in target states fail to perceive reasonable prospects for EU membership, they also believe that there is little to gain from adopting substantive democratic reforms in their countries, since the economic benefits of EU membership are closed off to them. They are also wary of potential domestic costs, as they are likely to bear the largest costs of political instability. Elites therefore strategically adopt formal forms of democratisation (for which benefits from the EU are more easily achieved) while neglecting the development of good governance principles. This problem is exacerbated by the lack of organisational guidelines through which the European Commission may review the progress of substantive reforms in partner countries and adopt signalling measures. As EU-EaP cooperation initiatives have largely adopted a top-down approach, I argue that incumbent EaP government office-bearers strategically adopt formal forms of democratisation while neglecting the promotion of normative democratic and good governance principles. Caiser similarly attributes the phenomenon to elite perception of unlikely EU-membership prospects, as well as a fear of losing power.[48] This discussion warrants a closer examination of the role of elites in hindering democratic advancement. Given the inequality of bargaining power between the two actors, democratisation conditions are imposed by the EU upon EaP states as a crucial criterion to receive economic rewards.[49] The adoption of EU legislation, legal acts, and court decisions in Moldova serves as a prime example—having repeatedly demanded Moldova adopt EU electoral standards and laws, the ENP has demonstrated its leverage over EaP governments via potential economic incentives.[50] Elites seek both to legitimise their regimes and to extract economic benefits from the EU; thus, they strategically adopt democratic reforms, such as legislative overhauls, which are most perceptible to their EU partners.[51] In contrast, improvements in substantive democracy, such as establishing independent anti-corruption agencies, safeguarding media freedom, and empowering civil society, are not only less quantifiable and recognisable indicators of democracy to EU partners, but are also perceived to be potentially disruptive towards the hierarchical entrenchment of the incumbent regime.[52] Civic society in former Soviet states such as Moldova often lacks channels of political representation and participation. Coupled with failed authoritarianism, the circumstances give rise to a political pluralism that renders substantive governance reforms extremely precarious to elites seeking to preserve their power.[53]Furthermore, elites interpret the ENP’s rigid policy conditionality and its reluctance to offer a reasonable prospect of EU membership as indicative of the minimal economic benefits to be gained by adopting substantive democratic reforms.[54] Given that these reforms also create possibilities of upsetting vested interests and decrease support for the governing administration, which may directly threaten elites’ hold on power, their cost-benefit analysis produces an incongruence between formal and substantive democratic norms in these countries. Office-bearers must be convinced of the value of abandoning the old equilibrium—as elites are primarily concerned with preserving their power and vested interests, the incentives towards instituting substantive democracy must, to some extent, benefit them also. In this respect, a parallel may be drawn between EaP states and the Southern Neighbours: as the latter’s geographical location preemptively refutes the possibility of EU membership, they are also less incentivised towards improving the quality of democracy.[55] The 2017 EU-EaP Summit Joint Declaration has negated any possibility for EU membership entry for at least the coming decade.[56] Given that EU membership prospects are expected to be confined within the Association Agreements, elites are understandably deterred from abandoning the current equilibrium to institute substantive democratic reforms.[57] Here, Ukraine again serves as an apt illustration. In keeping with EU recommendations, Ukraine has introduced proportional representation to improve electoral inclusivity.[58] This development did not, however, resolve entrenched issues of factionalism, selective law enforcement, and large-scale electoral fraud, and largely failed to clarify the power distribution between the Prime Minister and the President.[59] Zelensky’s administration has continued to stifle media freedom by banning opposition news outlets such as Yandex and RosBiznes Consulting (RBC), despite EU recommendations.[60] Although an independent High Anti-Corruption Court of Ukraine (HACC) was established in April 2019, the vested interests of the judicial elite continue to threaten the rule of law.[61] During mid-2020, members of the Constitutional Court made a series of decisions which threatened to destroy the HACC.[62] The following August saw the Constitutional Court declaring Artem Sytnyk’s appointment as director of the National Anti-Corruption Bureau (NABU) in 2015 as unconstitutional, a move that was deemed ‘politically motivated’ by officers of the NABU.[63] By autumn, the blockage of a judicial reform initiative was backed by the Parliament, the President, and by twenty members of the High Council of Justice, some of whom face corruption charges. This marks the culmination of democratic backsliding; attempts to adopt transparency reforms are being reversed.[64] Although contemporary Ukrainian elites reportedly identified the institution of democratic reforms as a prerequisite for EU candidacy, they also contended that only formal democratic measures should be implemented.[65] These examples not only demonstrate the endorsement of formal democracy over substantive democracy, but also illuminate the extent to which vested interests have subsumed attempts at improving the transparency and accountability of the government, particularly in view of the low EU membership prospects. The model is also evident in other EaP states. Following EU recommendations, Georgia introduced proportional representation in its 2004 constitutional reform.[66] Although the initiative purportedly promotes pluralism, critics have pointed out that the demarcation of electoral districts do not reflect geographical distribution of voter density.[67] Georgia is yet one more example where the advancement of substantive democracy has been considered subsidiary to that of formal democratic apparatus. The lack of precise organisational guidance is one of the principal shortcomings of this top-down strategy, as it provides elites with substantial flexibility to circumvent the adoption of substantive democratic reforms, and deprives the European Commission of the ability to follow up with countermeasures, should elites fail to meet the original commitments.[68] Although the European Commission can in principle sanction regressions by withdrawing the conditional EU economic benefits, this watchdog function is greatly hampered by the fact that democratic backsliding or stagnation itself is not reflected in the current indicators. To the extent that top-down EU policies neglect the quantification and appraisal of procedural democratic elements, the European Commission remains powerless in closing this policy loophole. This limitation creates an especially undesirable effect for the EU’s normative power: elites interpret it as a sign of weakness or general apathy, creating a positive feedback loop which further encourages the incongruence of formal and substantive democratic reforms. To conclude this essay, I will refute the purported inhibitory effect of Russian influence upon democratic advancement in the Eastern Neighbourhood. Such arguments assert that the Russian administration has interfered with democratic and governance reforms of EaP states to hamper their chances at EU membership.[69] Scholars have argued that geopolitical interests have characterised the Russian administration’s perception of Eastern Europe, meaning that Moscow will seek to frustrate EaP states’ attempts at building harmonious relations with the EU.[70] There is, however, insufficient evidence to suppose a clear relationship between Russia’s autocratic influence and the stagnant democratic development among EaP states. While theoretical predictions associate geographical proximity to Russia with democratic foreclosure, Armenia demonstrates that the success of democratic advancement is also largely dependent on strategic policy formulation. While Armenia abandoned the Association Agreement for membership in the Russian-led Eurasian Union in 2013,[71] the country has articulated plans for judicial reform pursuant to the EU-Armenia justice policy dialogue and continued its partnership with the EU.[72] Alongside the installation of a pro-democracy government following the 2018 Armenian Revolution, these developments have holistically improved its EIU democracy index from 4.09 in 2012 to 5.35 in 2020.[73] It is apparent that the ENP has yielded skewed results in promoting formal democracy over substantive democracy, calling for a thorough understanding of the underlying causes to remedy this situation. This essay has argued that the top-down intergovernmental promotion of democracy has manifestly encouraged elites to adopt an asymmetrical approach towards democratic reforms. Ultimately, attempts to promote the EU’s democratic norms must go beyond the formal apparatus—they must focus on the operational logic of the ENP, and work towards empowering civil society from the level of the citizenry. Dilys Tam So Yin Dilys Tam reads Government and Laws at the University of Hong Kong and minors in Fine Arts. She holds a conditional offer for the HKU Presidential PhD Scholarship, and her forthcoming publication in Springer Law Books Series: Law and Visual Jurisprudence investigates how bilateral investment treaties can be used to facilitate international art repatriation. She is also a mooter, a creative writer, and an active painter. [1] The sixteen countries include Armenia, Azerbaijan, Belarus, Georgia, Moldova, and Ukraine in the East, and Algeria, Morocco, Egypt, Israel, Jordan, Lebanon, Libya, Palestine, Syria, and Tunisia in the South. [2] Florian Carmona, Kirsten Jongberg and Christos Trapouzanlis, ‘The European Neighbourhood Policy | Fact Sheets on the European Union | European Parliament’ (2021) < https://www.europarl.europa.eu/factsheets/en/sheet/170/the-european-neighbourhood-policy > accessed 18 April 2022. [3] ibid. [4] ibid. [5] European Commission, ‘Review of the European Neighbourhood Policy’ (European Commission 2011) < https://www.europarl.europa.eu/doceo/document/A-7-2011-0400_EN.html > accessed 6 June 2022. [6] European Commission, High Representative of the Union, ‘Joint Communication to The European Parliament, The Council, The European Economic and Social Committee and The Committee of the Regions. A New Response to a Changing Neighbourhood’ (European Commission 2011) < https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:52011DC0303 > accessed 6 June 2022. [7]Martin Nilsson and Daniel Silander, ‘Democracy and Security in the EU’s Eastern Neighbourhood? Assessing the ENP in Georgia, Moldova, and Ukraine’ (2016) 12 Democracy and Security 44-61. [8] The Eastern Neighbourhood comprises Armenia, Azerbaijan, Belarus, Georgia, Moldova, and Ukraine. [9] Frank Schimmelfennig and Hanno Scholtz, ‘Legacies and Leverage: EU Political Conditionality and Democracy Promotion in Historical Perspective’ (2010) 62 Europe-Asia Studies 443-460. [10] ibid. [11] ibid. [12] Naim Mathlouthi, ‘The EU Democratisation of The Southern Neighbours Since the ‘Arab Spring’: An Inherently Inadequate Approach’ (2021) 4 International Journal of Social Science Research and Review. [13] Schimmelfennig and Scholtz, (n 9) 2. [14] Luigi Scazzieri, ‘Rethinking The EU’S Approach Towards Its Southern Neighbours’ (Centre for European Reform 2020) < https://www.cer.eu/publications/archive/policy-brief/2020/rethinking-eus-approach-towards-its-southern-neighbours > accessed 22 April 2022. [15] European Commission, ‘Wider Europe - Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours’ (Office for Official Publications of the European Communities 2003) 11-12 < https://www.europarl.europa.eu/sides/getDoc.do?objRefId=31192&language=EN > accessed 18 April 2022. [16]Mor Sobol, ‘It’s the Member States, stupid! The deadlock which bedevils the European Neighbourhood Policy’ (2015) 68 Studia Diplomatica 63-76. [17]ibid. [18] Ondřej Horký-Hlucháň and Petr Kratochvíl, ‘‘Nothing Is Imposed in This Policy!’: The Construction and Constriction of the European Neighbourhood’ (2014) 39 Alternatives: Global, Local, Political 252-70. [19] Frank Schimmelfennig, ‘Europeanisation Beyond the Member States’ (2010) 8 Zeitschrift für Staats- und Europawissenschaften 319-39. [20] Manuel Couret Branco, Political Economy for Human Rights (Routledge 2020) 88. [21] Johanna Severinsson, ‘Defining Democracy in The European Union: Assessing the Procedure and the Substance’ (PhD, Lund University Department of Political Science 2022) 4-22. [22] Henk Addink, Democracy and Good Governance (Oxford University Press 2019) 91–96. [23] Nilsson and Silander, (n 7) 1. [24] The European Commission for Democracy Through Law (Venice Commission, Council Of Europe), The Office for Democratic Institutions and Human Rights of the OSCE, ‘Joint Recommendations on the Election Law and the Election Administration in Moldova’ (Organization for Security and Co-operation in Europe 2004) < https://www.osce.org/odihr/elections/moldova/41959 > accessed 6 June 2022. [25] Nilsson and Silander (n 7) 1. [26] European Commission. (2005). EU-Moldova Action Plan (Office for Official Publications of the European Communities) 4 < https://eeas.europa.eu/archives/docs/enp/pdf/pdf/action_plans/moldova_enp_ap_final_en.pdf > accessed 6 June 2022. [27] ibid. [28] Yhiah Information Agency, ‘Ambassador Maasikas: IMF, EU financial aid, visa-free travel depend on fighting corruption’ (2020) < https://www.unian.info/politics/ambassador-maasikas-imf-eu-financial-aid-visa-free-travel-depend-on-fighting-corruption-11218355.html > accessed 22 April 2022. [29] Oksana Huss and Oleksandra Keudel, ‘Ukraine: Nations in Transit 2021 Country Report’ (Freedom House, 2021) < https://freedomhouse.org/country/ukraine/nations-transit/2021 > accessed 18 April 2022. [30] ibid. [31] Emily Channell-Justice, ‘Can the High Anti-Corruption Court Fix Ukraine’s Corruption Problem? Q&A with REECA Grad Ivanna Kuz’ < https://huri.harvard.edu/high-anti-corruption-court-ivanna-kuz > accessed 20 April 2022. [32] The Economist Intelligence Unit, ‘Democracy Index 2020: In Sickness and in Health?’ (The Economist 2020) < https://www.eiu.com/n/campaigns/democracy-index-2020/ > accessed 18 April 2022. [33] ibid. [34] Andrew McDevitt, ‘The State of Corruption: Armenia, Azerbaijan, Georgia, Moldova and Ukraine’ (Transparency International 2015) 8-11 < https://www.transparency.org/en/publications/the-state-of-corruption-armenia-azerbaijan-georgia-moldova-and-ukraine > accessed 18 April 2022. [35] Al Jazeera, ‘Ukraine probes ex-leader Petro Poroshenko in intelligence case’ (2010) < https://www.aljazeera.com/news/2020/6/10/ukraine-probes-ex-leader-petro-poroshenko-in-intelligence-case > accessed 18 April 2022. [36] Victor Gotisan, ‘Moldova: Nations in Transit 2021 Country Report’ (Freedom House, 2021) < https://freedomhouse.org/country/moldova/nations-transit/2021 > accessed 18 April 2022. [37] ibid. [38] ibid. [39] The Economist Intelligence Unit, (n 33) 6. [40] Cristian Cantir and Ryan Kennedy, ‘Balancing on the Shoulders of Giants: Moldova’s Foreign Policy toward Russia and the European Union’ (2014) 11 Foreign Policy Analysis 397-416. [41] Ellen Barry, ‘Protests in Moldova Explode, With Help of Twitter’ The New York Times (New York, 7 April 2009) < https://www.nytimes.com/2009/04/08/world/europe/08moldova.html > accessed 18 April 2022. [42] ibid. [43] Patrick Kingsley, ‘Moldova Had Two Governments One Has Finally Resigned’ The New York Times (New York, 14 June 2019) < https://www.nytimes.com/2019/06/14/world/europe/moldova-new-government.html > accessed 18 April 2022. [44] ‘BTI Index. Political Transformation’ < https://bti-project.org/en/ > accessed 6 June 2022. [45]ibid. [46]ibid. [47] OECD, ‘Anti-Corruption Reforms in Azerbaijan: Pilot 5th Round of Monitoring Under the OECD Istanbul Anti-Corruption Action Plan’ (2022) < https://www.oecd-ilibrary.org/content/publication/3ae2406b-en > accessed 6 June 2022. [48] Tom Casier, ‘The EU’s two-track approach to democracy promotion: the case of Ukraine’ (2011) 18 Democratization 956–77. [49] Sonja Grimm, ‘Democracy Promotion and the European Union’ in Peace Research Institute Frankfurt / Leibniz-Institut Hessische Stiftung Friedens- und Konfliktforschung, Democracy Promotion in Times of Uncertainty: Trends and Challenges (Peace Research Institute Frankfurt 2018) 16-19. [50] ibid. [51] ibid. [52] Schimmelfennig and Scholtz (n 9) [53] ibid. [54] Heather Grabbe, ‘European Union Conditionality and the Acquis Communautaire ’ (2002) 23(3) International Political Science Review 249-68. [55] Tanja Börzel and Frank Schimmelfennig, ‘Coming Together or Drifting Apart? The EU’s Political Integration Capacity in Eastern Europe’ (2017) 24 Journal of European Public Policy 122–40. [56] Petra Kuchyňková and Juraj Hajko, ‘Ten years of EaP: successes but also new challenges’ (2019) 28 International Issues & Slovak Foreign Policy Affairs 73-83. [57] ibid. [58] ibid. [59] Kenneth Geers, Alliance Power for Cybersecurity (Atlantic Council 2020) 11-16. [60] ‘Russian Media Organisations Banned for Three Years in Ukraine’ (Safety of Journalists Platform, 31 July 2018) < https://fom.coe.int/en/alerte/detail/36211014 > accessed 6 June 2022. [61] Diane Francis, ‘Ukraine’s reforms remain hostage to corrupt courts’ (Atlantic Council, 15 September 2020) < https://www.atlanticcouncil.org/blogs/ukrainealert/ukraines-reforms-remain-hostage-to-corrupt-courts/ > accessed 22 April 2022. [62] Channell-Justice (n 32) 5. [63] ibid. [64] ibid. [65] Geers (n 64) 10. [66] Neil MacFarlane, ‘Afterword’ in Stephen Jones and Neil MacFarlane (eds), Georgia: From Autocracy to Democracy (University of Toronto Press 2020) 229-36. [67] ibid. [68] Morten Broberg, ‘Furthering Democracy through the European Community’s Development Policy: Legal Limitations and Possibilities’ (International IDEA 2010) < https://www.idea.int/sites/default/files/publications/chapters/the-role-of-the-european-union-in-democracy-building/eu-democracy-building-discussion-paper-12.pdf > accessed 6 June 2022. [69] ibid . [70] Jean Crombois, ‘Conflicting Narratives? Geopolitical and Normative Power Narratives in the EU Eastern Partnership’ (2017) 49 Politeja 109-26. [71] Stanislav Secrieru and Sinikukka Saari (eds) The Eastern Partnership a Decade On (European Union Institute for Security Studies 2019) 84-95 < https://www.iss.europa.eu/sites/default/files/EUISSFiles/cp153_EaP.pdf > accessed 22 April 2022. [72] ibid. [73] The Economist Intelligence Unit, (n 33) 6.

In the 1967 gangster road movie Bonnie and Clyde , the often-horrific events of the real-life story are cut with ingenuous humour and sheer innocence. In the bleak landscape of dust bowl America, we are rooting for Faye Dunaway and Warren Beatty from the start, even though we know their love is doomed and they will die in a summary execution in a car riddled with bullets. The historic couple themselves knew this, as Bonnie Parker wrote in a poem: ‘It’s death to Bonnie and Clyde’. Yet we come out of the cinema, or off Netflix, convinced the couple are innocent, if not heroic. As Albert Camus says in The Rebel : ‘Every act of rebellion reveals a nostalgia for innocence and an appeal to the essence of being’.[1] Faye Dunaway and Warren Beatty in 'Bonnie and Clyde' (1967). Used with permission from Warner Bros. One of the things the film, inspired by French existentialist new wave cinema, illustrates is that present-day legal systems have not caught up with philosophical thinking, in the same way the hapless police cars pursue the bank-robbing duo to state lines. Innocence has never been just a passive result of justice when guilt is not found, but a subjective phoenix-like state of childlike being. Camus’ thinking owes much to Arthur Schopenhauer’s book, Die Welt als Wille und Vorstellung : the world as will and representation.[2] For Schopenhauer, as with Bonnie and Clyde, existence is meaningless except for our river of wantings ( Wille ) and what we individually and subjectively make of them. In Bonnie and Clyde’s case, this is their tender love affair and increasingly catastrophic robberies. Schopenhauer in turn was inspired by the poet Johann Wolfgang von Goethe, especially his Faust , where Goethe inverts morality, the true innocent, Gretchen, goes to the gallows, and even the devil Mephistopheles cannot be sure of his outcomes: ‘That power I serve, which wills forever evil, yet does forever good’.[3] In its humanism the Enlightenment turned everything upside down, but not the law. The Faust legend partially derives from the story of Eve and the garden of Eden, where Eve eats of the Tree of Knowledge, and discovers not just sin and the fig-leaf bikini, but free will. This wickedness, paradoxically, led to science, individual reasoning, democracy, the public meeting, and its natural corollary, the jury trial. But the law itself has not embraced either existentialist thinking or, say, the Marxist-inspired structuralism of Michel Foucault, who said we should applaud criminals for keeping the justice system in work. The courts prefer instead to stress guilt, traceable to Eve’s original sin, and dress up in spooky 17th-century costumes to reinforce the point. The call is for ever tougher sentences, yet there is little evidence these would have any effect on crime.[4] In Clyde Barrow’s case they certainly did not, and he even cut off one of his toes to get released early. In the UK, the legal system has a Ruritanian monarchy at its head and is proud of ancient feudal rituals and traditions; in Kafkaesque court documents, it is always R or Rex against the supposedly innocent accused. No former prisoner I have met will admit fully to his crime, even if he has pleaded guilty. The very act of thinking makes us feel like Gods, even if we know nothing of Descartes and cogito ergo sum. Possibly the beauty of the world and looking out at the helter-skelter wantings of Schopenhauer’s Wille make us feel innocent again, whatever we have done, but the law does not take this into consideration. There is this innocent joy of life and appreciation of art, in particular music and language, in the character of Alex in Anthony Burgess’s A Clockwork Orange , so much so that the reader is sickened by his reprogramming at the hands of the state. ‘Oh it was gorgeousness and gorgeosity made flesh. The trombones crunched redgold under my bed, and behind my gulliver the trumpets three-wise silverflamed, and there by the door the timps rolling through my guts and out again crunched like candy thunder […] I was in such bliss, my brothers’.[5] Burgess saw the book as a sermon on free will. Jean Genet, in The Thief’s Journal ,[6] likens convicts to flowers, and his demi-monde is inverted in a way that underscores Schopenhauer’s ideas and those of Jean-Paul Sartre, to whom the book is dedicated. In Genet’s jails and mean streets, as Mick Jagger sings in ‘Sympathy for the Devil’, written after reading Mikhail Bulgakov’s Faust- inspired Master and Margarita ,[7] ‘All the cops are criminals, and all the sinners saints’. To view the legal system as a zero-sum game, where innocence is defined or denied ‘objectively’ in a brief timeframe by a court, or by the police, can have consequences. When the law comes into contact with the ‘street’, occasionally the reaction can show just how philosophically out of step on innocence we have become. The ‘outlaw’ Mark Duggan, of Irish Afro-Caribbean descent, was shot by police on 4 August 2011 after the police had decided he was guilty, but the more humanist ‘street’ thought otherwise and, helped by mobile phone connections, there were days of nationwide rioting and a bill of 100 million pounds.[8] Messing with subjective perceptions of innocence can be costly as well as fatal. Wearing a hijab in Iran is a mark of chastity and obedience. But the killing of Mahsa Amini by the morality police for not wearing one correctly also sparked riots, led by fifteen-year-old girls who are Eve-like in their rebellion and innocence. Paradoxically, rehabilitation of serious offenders could be improved by using, not denying, this mantle of presumed innocence and accepting violent rebellion as part of being human. The Law Society has tried to modernise with publications like ‘Law in the Emerging Bio Age’ and the linked ‘postcards from the next normal’, but seems to shy away from a modern philosophical rethink of jurisprudence.[9] In the picture from the film, Bonnie Parker is wearing a chaste head covering, but she also, wisely, has her finger on a trigger of her Colt Detective Special .38 revolver. Paul Pickering Paul Pickering is the author of seven novels, Wild About Harry, Perfect English, The Blue Gate of Babylon, Charlie Peace, The Leopard’s Wife, Over the Rainbow and Elephant . The Blue Gate of Babylon was a New York Times notable book of the year, who dubbed it ‘superior literature’. Often compared to Graham Greene and Evelyn Waugh, Pickering was chosen as one of the top ten young British novelists by bookseller WH Smith and has been long-listed for the Booker Prize three times. Educated at the Royal Masonic Schools and the University of Leicester, he has a PhD in Creative Writing from Bath Spa University where he is a Visiting Fellow, presented his doctoral thesis to the Bulgakov Society in Moscow, recently completed a Hawthornden Fellowship Residency on Lake Como and is a member of the Folio Prize Academy. The novelist J.G. Ballard said Pickering’s work is ‘truly subversive’. As well as short stories and poetry, he has written plays, film scripts and columns for The Times and Sunday Times . He lives in London and the Pyrenees. A major theme of his novel Elephant , published by Salt in 2021, is innocence. [1] Albert Camus, The Rebel (first published 1951, Vintage 1991) 54. [2] Arthur Schopenhauer, The World as Will and Representation (first published 1819, Dover Publications 1958). [3] Johann Wolfgang von Goethe, Faust (first published 1808/1832, Macmillan 1965) passages 1335-6. [4] See Daniel S Nagin, Francis T Cullen, and Cheryl Lero Jonson, ‘Imprisonment and Reoffending’ (2009) 38(1) Crime and Justice 115-200. [5] Anthony Burgess, A Clockwork Orange (Heinemann 1962) 28. [6] Jean Genet, The Thief’s Journal (Penguin 1967) 1. [7] Mikhail Bulgakov, The Master and Margarita (Vintage 1967). [8] Paul Lewis, ‘'All hell broke loose': Oxford graduate held at gunpoint by police’ Guardian (London, 7 August 2011) < https://www.theguardian.com/uk/2008/jul/09/ukcrime.ukguns > accessed 10 September 2022. [9] Wendy Schultz and Trish O’Flynn, ‘Law in the Emerging Bio Age’ ( The Law Society , August 2022) < https://www.lawsociety.org.uk/topics/research/law-in-the-emerging-bio-age > accessed 11 October 2022.

Currently Professor of Government at King’s College London, Professor Vernon Bogdanor is a leading expert in British constitutional politics and history and has received a CBE in recognition of his extensive contribution to the field. In his most recent book, titled Britain and Europe in a Troubled World , published in 2020, Professor Bogdanor traces Britain’s historical relationship with the European Union in order to understand how Brexit came to be. In this interview, Professor Bogdanor tackles the constitutional issues that the United Kingdom is likely to face in a post-Brexit era, the different lessons learnt as a result of the referendum vote in 2016, and the role that the monarchy has to play in the current British parliamentary democracy . This interview was conducted across 28 and 29 April 2022. CJLPA : What brought you to research and understand British politics? What fascinated you the most about British politics or the British political system? Professor Vernon Bogdanor : Our very strange constitution. The Queen once said that the British constitution has always been a puzzle and always will be. I have tried to elucidate that puzzle. We are in fact one of just three democracies in the world which do not have constitutions. The other two are New Zealand—whose population is half that of Greater London—and Israel, although the Israelis are working towards a constitution. Now, some people in Britain ask, ‘Should we have a constitution?’ But in a sense, that is an absurd question. The real question is: ‘What is there about the air in Britain that means we should not have a constitution, not do what every other country does?’ This problem has become more acute since we left the European Union (EU). In my view, when we were in the EU, we were in fact living under a constitution, namely the treaties of the EU, which provide for a division of power both at the centre between the Commission, the Council of Ministers, the Court of Justice, and the Parliament, but also territorially between the EU itself and the member states. Also, in recent years, the EU has yielded the protection of rights in the European Charter of Fundamental Rights which was enacted in 2009. That led to a remarkable episode in British constitutional history which has not been very much noticed. In Benkharbouche v. Secretary of State for Foreign Affairs [1], Ms. Benkharbouche claimed against the Sudanese embassy unfair dismissal, failure to pay her the national minimum wage and holiday pay, as well as breaches of the Working Time Regulations. The Sudanese embassy claimed immunity under the provisions of the 1978 State Immunity Act. But the Supreme Court ruled that sections of the Act were incompatible with Article 6 of the European Convention providing for a fair trial. The remedy for this would be a declaration of incompatibility which is not a strictly legal remedy, since it has no legal effect. But Article 47 of the EU Charter of Fundamental Rights provides that if rights had been violated by the Convention, they have also been violated by the Charter. So, the relevant parts of the State Immunity Act were disapplied. For the first time in British history, the Court disapplied part of an Act of Parliament because it conflicted with human rights. That, I think, would have Dicey turning in his grave. It was something new and unprecedented. As we have now left the EU, the Charter no longer applies, but Benkharbouche, nevertheless, is an important precedent. The European Charter protects a far wider range of rights than the European Convention. The Convention was enacted in the early 1950s and human rights are, in my view, a dynamic phenomenon. For example, in those days there was no thought of the right to protect the environment which is in the European Charter. Few thought of the right to academic freedom which is in the European Charter. But the most important right is the right to equality in terms of gender, sexual orientation, race, religion and so on which is not in the European Convention. There is also a right to healthcare in the European Charter but not in the Convention. The Convention provides a right to education but not healthcare. Leaving the EU took us out of a constitutional system. We have incorporated almost all EU law into our own law, so that the government and parliament can decide what they want to keep, what they want to modify, and what they want to repeal. That is, of course, a huge task. Incorporation itself is nothing new. For example, our ex-colonies incorporated British law so that they could decide which British laws they wanted to keep. But when they did that, it was because they wanted to develop a constitution of their own. We have done something perhaps unique in the democratic world and instead of entrenching we have been dis-entrenching. We have moved away from a constitutional system to an unprotected constitution. This is emphasised by the fact that one part, almost the only part I think, of EU law that we have not incorporated is the European Charter of Fundamental Rights. This means we have moved from a system which protects rights, to one which does not protect rights. We do have the European Convention, but the way we have adopted it is rather different from almost every other country because judges are not given the right by the Human Rights Act to disapply legislation conflicting with the Convention. All they can do is to issue a declaration of incompatibility. That is just a statement which has no legal effect, and it is then up to Parliament to decide whether to take action. Parliament has a special fast track procedure by which it can take action if it so wishes, but courts in other European countries have much greater powers because they can disapply legislature. This raises a very interesting question because the other 27 member states of the EU do, of course, retain the European Charter. So, I would ask this question: Are our Members of Parliament (MPs) so much more sensitive to human rights than the legislators of other countries in Europe that they can be entrusted with this very important function? I will leave the answer to this question to those reading the interview! It is worth stressing that rights are not solely for nice people like ourselves, but also for very small minorities who may not necessarily be very nice, for example, prisoners, suspected terrorists, suspected paedophiles, and so on—also, asylum seekers, a very small minority not effectively represented in Parliament, also have rights. Brexit raises this issue of whether we should continue to live under an unprotected constitution which does not effectively protect human rights. And there is a further question arising from Brexit. Does the devolution settlement need further protection in Scotland, Wales, and particularly in Northern Ireland? I will discuss devolution a little later. With our strange constitution, law and politics are closely intertwined. Much more of our constitution than in other countries is based on convention. These conventions, in turn, often depend upon popular feeling. For example, we have the case now of Boris Johnson and Partygate. A Prime Minister who has deliberately misled Parliament must, so the Ministerial Code declares, resign. But this convention depends in large part on popular feeling. Are people angry enough to protest to their MPs or do they say that it does not matter too much? A great writer on the constitution, not as well-known as Bagehot, but well worth reading, Sidney Low, author of The Governance of England first published in 1904, said, ‘We live under a system of tacit understandings, but the understandings are not always understood’. That seems to me a very perceptive point about the British constitution. CJLPA : I am assuming on the basis of the points you have just mentioned, do correct me if I am wrong, you are a supporter of a codified constitution in the UK. In light of this, has this been received or acknowledged by figures in the political system? Are there supporters for a constitution at the moment? I can imagine that the current opposition might not be keen on that idea. VB : When we had a Labour government, Gordon Brown who was Prime Minister from 2007 to 2010—and I think it no accident that he came from Scotland—favoured a constitution. If he had been re-elected in 2010, he would have tried to enact one in 2015 which was the 800th anniversary of the Magna Carta—but he was not re-elected. The Liberal Democrats have long been in favour of a constitution, and I think some in the Labour Party are. Perhaps the longer Labour is in opposition, the more likely it is to support a constitution. But the Conservatives are, in general, not in favour, partly because they are the natural party of government in the sense that they tend to be in power most of the time. I mentioned that it was not an accident that Gordon Brown, being Scottish, was in favour of a constitution, for many Scots have never accepted the idea of the sovereignty of Parliament. They say that it is the Scottish people who are sovereign, and that point has been tacitly accepted by Westminster. There was a referendum in Scotland on independence in 2014. The Scots voted against it, but had they voted for it, they would have become independent. There was also a referendum before devolution was introduced. In both cases it was accepted that it was for the Scots to decide, even if their decision went against the wishes of Westminster. So, for the Scots, the central principle is perhaps less the sovereignty of the Westminster parliament than the sovereignty of the Scottish people. That is also accepted in Northern Ireland. If a majority in Northern Ireland were to decide that it wished to join with Ireland, that would be accepted by Westminster. An American once said that in politics where you stand depends upon where you sit. Perhaps that is true in Britain because it may be that the sovereignty of parliament is primarily an English concept. The Welsh government favours a quasi-federal system for the United Kingdom (UK). The Scots believe in the sovereignty of the Scottish people. In Northern Ireland there is a divided community, but there also, the principle of the sovereignty of parliament is overtaken by the principle of the sovereignty of the people. There are, however, two different views about the Northern Ireland constitution depending on whether you are a unionist or a nationalist. CJLPA : Say Gordon Brown is attempting to get re-elected again and he has the idea of codifying the constitution within his manifesto. What is the extent of the risk of the codification of the constitution becoming a politicised issue in the media? VB : I doubt if there is much risk. Enacting a constitution would be a long process because it would require popular consent. Most people in England do not think much about the constitution, although they do in Scotland and Northern Ireland. We would first have to have a body to draw up an agenda; then you would need a Royal Commission which would have to travel around the country having evidence sessions. That would be a kind of learning exercise for the public. Then the government would draw up a constitution and then there would have to be a referendum, probably with a majority needed in all parts of the UK, unlike the Brexit referendum. So, it would be a long process. I do not think it would necessarily be party political. I think, however, that it will be a long time before we get a constitution. It is not an immediate issue, and it is very low on most people’s priorities. Human rights also are very low on most people priorities, though one lawyer, former MP and former attorney general Dominic Grieve, has made the interesting suggestion that the European Convention should include a right to healthcare as the European Charter does, in addition to the right to education. The reason is that the right to healthcare would affect large numbers of people, and therefore it would be more likely that more people would feel they own the Convention, which they do not at present now because they think of it as defending disreputables such as criminals. But they would then own it and there would be more respect for human rights. Otherwise, constitutional issues are a minority concern. There are no mass meetings in Trafalgar Square with crowds clamouring for a constitution! CJLPA : If a human rights issue is quite prominent and has a lot of media following, perhaps it could grab some attention? VB : Only amongst a small group of the intelligentsia, the academics—the chattering classes if you like, not amongst the people as a whole. I do not think academics are very representative of public opinion in general or necessarily have much insight into public opinion. Opinion polls show that enacting a constitution is not a priority. CJLPA : I think you would agree with me that there have been many, but not all, British politicians who have been out of touch with the citizens that they are trying to represent: take the recent Partygate scandal that you mentioned earlier and the fact that it is currently difficult to punish a misbehaving government, or Brexit where even though the referendum was a close result, MPs were evidently not representative of the UK because a majority of them actually wanted to remain. In light of that, to what extent is the current UK political system truly a representative democracy? VB : I think your introduction of the referendum is very important. For, as you say, the majority of MPs were against Brexit, and the government was against Brexit. For the first time in British history, Parliament was enacting legislation in which it did not believe. Legally, Parliament is still sovereign, it could have ignored the referendum, it would not have been unlawful to do so. But, in practice, it was not possible to ignore the referendum. So, Brexit is a milestone in our constitutional history. Not only was Parliament no longer in practice sovereign, it was shown not to be representative of the people. As you know, many in the British political elite were fervent Remainers and did not want to accept the result. The EU does not like referendums either. In 1974, shortly before we were to have our first referendum, the ex-President of the European Commission Monsieur Jean Rey said these matters should be left to trained people. ‘You cannot’, he said, ‘have a system in which housewives should be allowed to decide the future of Britain!’. A lot of the arguments against referendums, in my opinion, are similar to the arguments used against extending the suffrage—that the people are ignorant, that they do not understand the issues, and that political decisions are best left to elites. A French reactionary, Joseph de Maistre, declared that the principle of the sovereignty of the people—which is now a part of our constitution I believe—is so dangerous that even if it were true, it would be best to conceal it! Not only is the referendum now part of our constitution, but there are, what we might call, ‘shadow referendums’, referendums which were not held because of fear of the result, but which nevertheless influenced the political agenda. For example, when Tony Blair was Prime Minister from 1997 to 2007, he very much wanted Britain to join the Euro, but he believed that this required a referendum. However, he never put the issue to referendum because there was not one single opinion poll which showed a majority in favour of the Euro. You may say looking at the experience of continental countries, particularly Mediterranean countries such as Spain, Portugal, Italy, and Greece, that we were lucky not to join the Euro! CJLPA : On the topic of democracy, I would like to ask a question specifically about the role of the British monarchy because monarchs by now are the exception, not the rule. Especially now, in Britain, it is quite difficult to support the monarchy when its role in the UK constitution might be minimal but its influence, as we have seen, has proven to be plenty. What role, if any, does the monarchy have to play in a democratic system? VB : The main role of the monarchy is not constitutional. Its constitutional powers are almost nil. But as well as being head of state, the Queen is head of the nation. She can, as it were, represent the whole country to itself. By contrast, if you have a president, you either have a president such as Macron in France or Biden in America who is head of the executive. They represent not the whole country, but just half of the country. Or you can have a constitutional president without political power which, for example, Italy and Germany have. I suspect that very few people could name the presidents of Italy and Germany, I certainly could not, and the position is usually given to a harmless retired politician who is put out to grass. Do we want that here? President Cameron or President Blair? They could not represent the whole country. This is particularly important with the devolution settlement because any elected person would be either English, Scottish, Welsh, or Northern Irish. The Queen is none of these and all of them at the same time. We are lucky in the Queen because she instinctively understands, what you might call, ‘the soul of the British people’, which it would be very difficult for a politician to do. Unlike a politician, she has no party-political history. No one knows whether she is Labour, Liberal Democrat, or Conservative, or what her views are on politically controversial matters. I think we are fortunate to have a constitutional monarchy. The constitutional monarchies in Europe are very stable, moderate countries: some Scandinavian countries, Britain, the Benelux countries, and Spain. We are lucky that we have never had a revolution because revolutions or defeat in war tend to get rid of monarchies. For example, in Italy the monarchy was removed after the defeat in the Second World War because the king was thought to be associated with fascism, in Germany after the First World War, and in France after the revolution. We are lucky, perhaps because we are an island, that we have never been involved in revolutions or upheavals. In 1945, when we had the first Labour majority government, the American president Harry Truman was visiting Britain and he said to King George VI, ‘I see you’ve had a revolution here’, and the King said ‘Oh no we don’t have things like that’. CJLPA : You say that the monarchy is the ‘soul of the British people’. I would perhaps counter that. You mentioned the Nordic countries and the role that their monarchy has to play. I would say that the level of influence is completely unparalleled. It is true that the power is minimal, but the influence and the presence is not. VB : I do not know if the Queen has much political influence. When has she exerted political influence? I do not think that is right. CJLPA : I was thinking more of the case of Prince Charles. VB : Yes, that is interesting. He has had influence, but not on party political matters. His technique is to raise an issue which he thinks has been hitherto ignored by politicians, for example, the environment and climate change. When the politicians do take up the issue, he steps back. He has also spoken on a number of other issues that he thinks important which are not party political, for example architecture, teaching Shakespeare in schools, and so on. He has said controversial things, but they are not controversial in the party-political sense. He has never spoken publicly about Brexit or whether we should have a Conservative government or Labour government. He is very careful in all his speeches not to appear partisan. He does not speak on advice like the Queen but, out of courtesy, he shows his speeches to ministers. I suspect that if ministers said, ‘Well, look, this does entrench on government policy’, he would back down. He has known since birth what his role will be, and he has been trained and brought up in the constitutional tradition. He has not been party-political, but he has influenced opinion in other ways. I agree with you on that. CJLPA : With race and identity coming up a lot, regarding the institution itself and its imperialist past, rather than the Queen more specifically or the members of the family, I think people disagree that it is representative of the British people. VB : The monarchy in Britain is unlike the other monarchies I have mentioned because it has an international dimension thanks to the existence of the British empire, now the Commonwealth. Of the 54 countries which are members—around a third of the world’s population—15 of them, now that Barbados is a Republic, are Commonwealth monarchies. The rest are republics. The Commonwealth is a voluntary organisation of equals, while the empire was based on domination. But the empire cannot have been quite as terrible as some suggest if almost all of the colonies have voluntarily agreed to join the Commonwealth. The only former countries ruled by Britain that have voluntarily left the Commonwealth are Burma, now Myanmar, and Ireland. Two counties which were not part of the empire—Mozambique and Rwanda—have joined. The Commonwealth gives the monarchy an international dimension. The majority of people in the Commonwealth are not white and not Christian. This means that the monarchy must stand and does stand for racial and religious equality. In her Diamond Jubilee in 2012, the Queen’s first visit was to Leicester which is an example of a multiracial city where integration has proved successful. And in 2004 she made a particularly interesting Christmas broadcast. She spoke of the parable of the Good Samaritan, the implication of which was clear. ‘Everyone is our neighbour, no matter what race, creed or colour. The need to look after a fellow human being is far more important than any cultural or religious differences. Most of us have learned to acknowledge and respect the ways of other cultures and religions, but what matters even more is the way in which those from different backgrounds behave towards each other in everyday life’. She then went on to say: It was for this reason that I particularly enjoyed a story I heard the other day about an overseas visitor to Britain who said the best part of his visit had been travelling from Heathrow and into central London on the tube. His British friends, as you can imagine, were somewhat surprised, particularly as the visitor had been to some of the great attractions of the country. ‘What do you mean?’, they asked. ‘Because’, he replied, ‘I boarded the train just as schools were coming out. At each stop children were getting on and off—they were of every ethnic and religious background, some with scarves or turbans, some talking quietly, others playing and occasionally misbehaving together, completely at ease and trusting one another’. ‘How lucky you are’, said the visitor, ‘to live in a country where your children can grow up in this way’. We can also see the influence of the monarchy in the Queen’s broadcasts on COVID and in broadcasts commemorating D Day and VE Day where she was able to speak for the whole country. In my opinion, the case for constitutional monarchy is unanswerable. CJLPA : To what extent did the countries in the Commonwealth remain within the Commonwealth for economic reasons? VB : That is part of the argument, but one should not exaggerate it because, after all, when countries become independent, they do not ask whether they will be better off or worse off. If you had said to the Nigerians in the 1960s, ‘You will be economically worse off outside when you are no longer a British colony, when you are no longer ruled from Westminster’, they would have said ‘That’s completely irrelevant. We want to govern ourselves’. The Indians and other newly independent countries would have said the same. So, I would not overstress that argument. The Commonwealth is in a way a sentimental organisation which does a great deal of good because one of the main problems in the world is the relationship between people of different ethnic groups and religions. It is often forgotten that the Queen’s Christmas broadcast is not delivered in her role as Queen of Britain but as Head of the Commonwealth in which a majority are neither white nor Christian. I think it must be valuable to bring together people of different countries and different ethnic groups. CJLPA : We know that the Northern Ireland protocol is a particularly precarious issue, and a very delicate part of the Brexit process. We know it has been ruled by the High Court and the Court of Appeal in Northern Ireland as legal. If it is not constitutional, on the other hand, what does that mean for Brexit as a whole, or even just the UK constitution in general? VB : What it means is that at the very least the Protocol must be radically amended. The Protocol may or may not be constitutional. But the courts were asked to pronounce on whether it is lawful—a different matter. They have said that it is lawful, but it does not follow that it is constitutional. After all, a statute that is incompatible with the Human Rights Act is lawful, but it is not constitutional. It would be lawful for the government to have ignored the Brexit referendum, which was an advisory referendum. But most of us think it would not have been constitutional. CJLPA : What is likely to happen from here on in with the Northern Ireland protocol? What are we likely to see? VB : The Northern Ireland Protocol is a consequence of Brexit. Northern Ireland is the only part of the UK with a land border with an EU country. That has become of greater importance since Brexit because Britain will probably diverge from EU rules and regulations. The question is whether the regulatory and customs border should be on the island of Ireland or in the North Sea. Wherever it is, there is going to be trouble because if it is in the island of Ireland, the Irish nationalists are going to be annoyed. If, as is the case, it is in the Irish Sea, the unionists will be annoyed. Brexit goes against the spirit of the Good Friday Agreement or Belfast Agreement—I should say that there is no agreement on what it is to be called. If you are unionist you will call it the Belfast Agreement, if you are nationalist you will call it the Good Friday Agreement. But whatever it is called, the Agreement was an attempt to resolve the Irish problem. It enabled residents of Northern Ireland to identify as British, Irish, or both, and to enjoy Irish citizenship as well as British citizenship. But, with Brexit, if someone decides on Irish citizenship, she cannot access in Northern Ireland the rights of an EU citizen. She cannot, for example, access the European Charter for Fundamental Rights. So, Brexit does complicate the Irish problem. Both John Major and Tony Blair said in Northern Ireland that this would be a consequence of Brexit. Northern Ireland, as it happens, did not vote for Brexit: 56% voted to stay in the EU. But Britain is not a federal state and so Northern Ireland was overruled by the rest of the country. The Northern Ireland courts have been considering the contention by the unionists that the Protocol is unlawful because it goes against the Act of Union of 1800 which provided that there should be no customs barriers between Britain and Ireland. The courts have said that the relevant part of the Act of Union was overridden by the Withdrawal Act which is also a constitutional statute. Parliament well knew what it was doing when it enacted the Protocol, and in so doing, it implicitly repealed the relevant part of the Act of Union. The argument against the constitutionality of the Protocol would be that the Act of Union is absolutely fundamental because it is constitutive of the UK itself. So, it cannot be implicitly repealed but has to be explicitly repealed. That issue may go to the Supreme Court, I do not know whether leave to appeal to the Supreme Court has been given but the unionists are seeking it. CJLPA : Because of the fact that it was brought by staunch unionists to the courts, is conflict almost inevitable? VB : Yes. The withdrawal agreement is a victory for the Irish nationalists. It is a zero-sum game. The Good Friday Agreement, or the Belfast Agreement, tried to avoid the zero-sum game. Both unionists and nationalists could win, one could be both British and Irish. But, in relation to the Protocol, one can understand the unionist position, since the Protocol divides the UK economically. CJLPA : Regardless of how the Northern Ireland protocol is likely to turnout, are we likely to see a chain reaction of similar, but more sovereignty-related, issues in the other devolved nations? VB : Yes, Brexit has caused renewed conflict between Westminster on the one hand and Scotland and Wales on the other, for this reason. When the devolution settlement was made in the late 1990s the assumption was that Britain would stay in the EU. The devolution of some functions, for example, agriculture and fisheries, was fairly meaningless because almost all policy in those areas was determined by Brussels, so there was no real scope for an independent policy in these areas from Edinburgh or Cardiff or, indeed, Westminster. In theory, with the incorporation of EU law back into Britain, all EU powers relating to devolved matters should go to Scotland and Wales. But this raises a problem since we cannot have, for example, four different systems of agricultural subsidies in the UK, especially when agriculture will almost certainly be the subject of trade negotiations. Suppose we seek an agreement with America. The Americans would want to ensure that they had access to the whole of the UK market, not just England. So, in the Internal Market bill, the government reserved some powers which had been devolved. There has been much annoyance in Scotland and Wales and their governments have tried to amend the law through the courts. They have, however, not succeeded since we do not have a federal system. So, Parliament can still legislate on matters devolved to Scotland and Wales. But in Scotland and Wales many say, ‘This may be lawful but it’s unconstitutional, you shouldn’t be legislating on devolved matters without our consent’. So, Brexit has raised problems in Scotland and Wales as well as in Northern Ireland. CJLPA : On a similar note, there is the looming possibility of a second independence referendum. In Scotland, Nicola Sturgeon has promised the Scottish people that in a stable post-COVID era she would propose to them the question of independence. VB : That is possible, but contrary to what many think, Brexit makes independence more of a gamble because there would then be a hard border between Scotland and the rest of the UK. The rest of the UK is Scotland’s largest trading partner: almost all its exports go to the rest of the UK, not to the Continent. So, independence could be economically catastrophic for Scotland. In addition, Scotland gets more per head in public spending than England thanks to the Barnett formula. And she would face the same problem she faced in 2014 of what her currency should be. If it were to be the pound, she would have her monetary policy controlled from London. A similar arrangement caused Greece and Italy many problems with the EU. They were restricted in their economic policy since they had no control of monetary policy which lay with the European Central Bank. If Scotland had her own currency, interest rates might rocket sky high, since the new currency would be such an uncertain quantity. If Scotland joined the Euro, she would have to reduce her budget deficit to around 3%. Her budget deficit is now at around 7 or 8%. The cuts in public expenditure or increases in taxation would need to be huge. They would make George Osborne, the austerity Chancellor, look like Santa Claus! Scotland would not get the benefit of Margaret Thatcher’s EU rebate either, I suspect. So, independence is a less viable project than when Britain was in the EU, but, as I mentioned a moment ago, it might be argued that these economic factors are not really fundamental when it comes to independence. When India and Nigeria became independent, they did not ask whether they would be better off of or worse off. Nor did Ireland when she became independent. Pressure for independence seems to be receding a little at the moment, though it is stronger amongst younger voters than older ones. The current Conservative government will not grant a second referendum but if there is a Labour government dependent on the Scottish National Party (SNP), the SNP might insist on a second referendum as a price for supporting that government. So far, we have been talking about the British problem, but I think Brexit gives rise to great EU problems as well. Donald Tusk, the President of the European Council, said it was a mistake to believe that the factors leading to Brexit are not also present in other EU countries. Brexit, he said, should be a warning signal for the EU. President Macron of France—on the Andrew Marr Show in early 2017—could not guarantee that if a referendum were held in France that it would not yield the same result as in Britain—Frexit. The EU faces problems and I think the main problem is that the original model—the Jean Monnet model, the Jacques Delors model—has reached its limit. As the EU comes to entrench upon national sensitivities, it encourages a populist reaction, particularly in areas such as immigration and control of economic policy. I think it would be better for Europe to develop along Gaullist lines, as a Europe des etats , a Europe of states (De Gaulle has often been mistakenly accused of using the phrase Europe des Patries ). The Commission remains the only body that can initiate legislation. Many find that odd since it is not elected and cannot be dismissed by the voters. Some Gaullists have said that it should become a secretariat of the Council, and that seems to me sensible. The federalists, Jean Monnet and Jacques Delors, wanted the Commission to be eventually responsible to the European Parliament and the Council of Ministers to become the upper house of member states. But Europeans do not regard the European Parliament as their primary legislature. Their primary allegiance is to their domestic legislatures and the European Parliament is seen as part of an alienated superstructure – representing them not us. There is a conflict, exacerbated by the EU, between the political class and the rest. The political class favours integration but the people are sceptical. This is particularly so in France. It was first revealed 30 years ago when the French, thought to be at the centre of European integration, only narrowly accepted the Maastricht treaty. Then, in 2005, they rejected the European constitution. Nevertheless, the elites go ahead regardless and that seems to me foolish. They need to take account of popular feeling. The EU was founded in a different age, the early 50s, when there was much greater deference, and I am not sure it works as well today when there is a demand for greater accountability. So, Brexit contains important lessons for the EU as well as for Britain. CJLPA : What lessons have the member states themselves learnt? And do they have a responsibility for how Brexit played out? VB : I think they need to look at how to combat populism and I have tried to suggest how that might be done. What is remarkable in Britain, contrary to many predictions—and I was myself a Remainer – is that Brexit, paradoxically, has liberated Britain’s liberal political culture. Survey after survey has shown that the public is more sympathetic to immigration than it was. We have developed more liberal attitudes to immigration than most EU member states, and immigrants have more of a chance of finding employment here than in many other European countries. The present government contains six members from non-white ethnic minorities. Angela Merkel’s last government in 2017 had none at all. When we left the European Parliament, we took a large percentage of ethnic minority Members of the European Parliament with us. A number of European countries have none at all. Contrary to what many predicted, we have not become a more insular racist country, we have become a more liberal country. Populist forces seem to have been weakened. The EU must itself learn how to combat populism. CJLPA : After Brexit we saw many far-right parties recoil very quickly from their own plans to exit from the EU. What has the far-right learnt with regards to Brexit? VB : The far-right benefits from general alienation from government, particularly on immigration and on the fact that the EU makes it very difficult for national governments to control economic policy. In the Mediterranean countries—not so much in Italy but in Spain and Portugal and possibly Greece—the far-left has gained more. The far-left has gained in France as well. It is the entrenching by the EU on national sensitivities that is so worrying. If you look at past federal states, many have been built after war—the American Civil War, the German wars under Bismarck, the Swiss war in 1848—and took a long time to form, even in America where everyone speaks the same language. There is not going to be any sort of federation in a Europe comprising so many different national traditions, languages, and cultures for a long time. One might have got it and might possibly still get it if an inner core of the original six got together—Germany, Italy, France, and the Benelux. But there is very unlikely to be a federation of the 27 member states. CJLPA : In light of some of the negotiations being postponed to a later date, when will we see a post-Brexit life? Will we be seeing it anytime soon? VB : Brexit is a process not an event. I think the process will continue for a long time. And it will be some time before we can judge the economic and constitutional effects of Brexit. On these matters the jury is still out on whether Brexit will prove beneficial or not. The jury is also still out on the future of the UK. Will Scotland remain part of it? Will Northern Ireland? No one knows, and I am not going to predict. It is difficult enough for the historian to find out what has happened in the past let alone what will happen in the future. This interview was conducted by Teresa Turkheimer, an MSc student in European and International Public Policy at the London School of Economics and Political Science. Her main interest lies in understanding the causes and effects of inequalities that characterise the labour market today, and is hoping to pursue a career in research in the coming years. [1] [2017] UKSC 62.

Acknowledgements I would like to begin by acknowledging that the land within which I wrote this research paper is Mi’Kma’ki, the ancestral and unceded territory of the Mi'kmaq people. This territory is covered by the ‘Treaties of Peace and Friendship’ which the Mi’kmaq Wəlastəkwiyik (Maliseet) and Passamaquoddy Peoples first signed with the British Crown in 1726. These treaties sought to establish the rules for an ongoing relationship between nations based on respect, not to deal in the surrender of land and resources but in fact to recognize Mi’kmaq Wəlastəkwiyik (Maliseet) title and guarantee their right to livelihood on their land. In the ensuing and continuing years of colonial violence, oppression, and genocide, settlers have actively failed to recognize these treaties and their responsibilities to the peoples whose land they now inhabit as well as to the land itself. Acknowledging territory and Indigenous communities must take place within the larger context of genuine and ongoing work to forge real understanding and cooperation to challenge the ongoing legacies of colonialism. We are all Treaty People. It is important to understand that I am a settler, and therefore my positionality in this research is not from an Indigenous perspective and neither is my interlocutor. While there is much to learn from a critical examination of settler movements within reconciliatory efforts, we must always ensure that we are empowering and frontlining centring Indigenous voices in these conversations. A Note on Language The work of reconciliation asks of us to engage our own language for vestiges of colonial ideology. Anthropology teaches us that our linguistic practices frame the ways in which we think about the world. Research and scholarship, therefore, must account for the implicit and explicit assumptions nascent in the words we use. To begin, the term ‘Indigenous’ is frequently utilized to refer to the original inhabitants of colonized lands, whereby Indigenous peoples are marginalized, exploited, and/or oppressed by the politically dominant population.[1] In this article, I use the term ‘Indigenous’ to refer to the First Peoples living within what are now Canadian borders, who are distinguished from the settlers who arrived in the last five centuries. Although this term is slightly ambiguous and controversial, as it is an umbrella term for a large group of sovereign and unique nations, it is nonetheless useful for identifying patterns that affect the way gallery spaces treat the heritage of colonized peoples. As such, I utilize ‘Indigenous’ to address Indigenous groups as a collective, and wherever possible use Nation-specific terms. My research deals with considerations of gallery practices—specifically the politics of the display of objects. Much research within museology and gallery studies utilizes the language of artifact when referring to those objects of display. I will not do so. Within gallery spaces, artifact is a term that often denotes an object observed: something that is likely found, studied, and ultimately displayed. It makes the object into the things observed by the actor of that encounter. To utilize this language—the term artifact—in my opinion, aligns the collected object with certain rhetorics and curation which are often at odds with the object itself. I will be employing the term ‘object’ to denote their ‘ontological resist[ance to] the curatorial and its apparatus’.[2] Although the language of objects directly objectifies, it does so in an explicit and direct manner that I appreciate. The process of objectification is present in the term itself, and so this process should be foremost in our thoughts when we speak of these displayed objects. With both reference and reverence to their resistance and the processes they have likely undergone, my research speaks of objects—though the term artifact will still be seen in quotations or reference to literature, though I italicize this term to emphasize the distance between the subject in question and the ways one intuits its meaning through the language of artifact . My analysis and findings take up and further explore the language of artifacts and objects. Introduction Anthropological and art historical galleries are critical pedagogical sites. They are symbolic depositories of cultural memory: the autobiography of dominant culture. Galleries, in this way, function as societal institutions of the validation and dissemination of knowledge and human experience as it manifests in art, as well as cultural and natural history objects.[3] The valuation of the gallery or museum space, its praise as one of if not the most trustworthy arbiters and sources of truth, brings urgency to the question of what it says and how it says it.[4] The examination of gallery practices is an especially pertinent concern as galleries have entered an era of reconciliation with Indigenous communities—a time in which the gallery and those who operate within it are asked to challenge their tacit modes of encounter with objects, as well as the ideas and people from which the objects originate, in an attempt to decolonize the space. I make reference here specifically to Canada’s Truth and Reconciliation Commission, which calls for a review of museum policies and practices with the intention of shoring up the continued legacies of colonial violence which insulate themselves within gallery walls.[5] In other words, anthropologist James Clifford diagnosed the gallery space as a ‘contact zone’ in colonial encounters—a crucial stage upon which the dialogue of reconciliation must be done.[6] Critically, this location possesses its own social criterion: tacit modes of encounter that historically excluded and superseded both the needs and desires of Indigenous communities. The requirement of this era, as well as the focus of my research, is to locate systems and structures which uphold colonialism or otherwise impede decolonization efforts in our institutions in particular—the gallery space in specific—and our social relations in general. The reconciliatory effort my research examines are collaborative exhibitions, where settler curators and Indigenous knowledge keepers cohabitate the gallery space and create together the exhibition and display of objects. My research investigates the hegemonic perspective within the gallery encounter, which is challenged by this new collaborative way of ‘doing’ within the gallery. Reconciliatory practices ask of the non-indigenous, settler perspective, who historically dominated the gallery space and the objects within, to make room for another voice to speak, and further to challenge their tacit assumptions and practices within the gallery space. In my research, I interrogate this dynamic by asking: what are the implications of tacit curatorial practices? How do non-indigenous or settler curators change their visual practices when handling and exhibiting Indigenous objects? Further, what are the systemic barriers that they encounter when attempting to decolonize their role in the gallery? Through a critical discussion of a variety of collaborative exhibition case studies, and gallery didactic label analysis, in conversation with a semi-structured interview with a settler curator of a Canadian museum engaged in collaborative exhibitions with Indigenous knowledge keepers, my research seeks to investigate the dynamics of decolonization and repatriation within the gallery on the part of the hegemon, seeking to illuminate the intricacies of these interactive encounters. Theoretical Framework, or, Get Your Bearings The Task of the Gallery A necessary question to begin with is, of course, what was and is happening in the gallery that needs to be challenged and decolonized? What precisely are these tacit modes of encounter that are so problematic? Here, Brian O’Doherty’s analysis of the gallery proves useful. In his 1976 work Inside the White Cube: The Ideology of the Gallery Space , O’Doherty analyzes the relationship between aesthetics, economy, and social context to understand what he describes to be the confrontational nature of the gallery encounter. Specifically, O’Doherty examines the influence that these spaces—or ‘the white cube’—produce over both an artist’s work and the viewer of said work, identifying overtones of control and patronization at the centre of the gallery encounter. He likens the gallery to a church—an institution of power that speaks with great authority—subsuming all those who enter into its grammar, or its ‘way of seeing’. O’Doherty writes: ‘[w]e give up our humanness and become the cardboard spectator with the disembodied eye. For the sake of the intensity of the separate and autonomous activity of the Eye, we accept a reduced level of life and self’.[7] This reduction is the crux of the gallery encounter. Indeed, to display an object is frequently to supplant its original context, utility, and relationality for cold, steely walls with the occasional small textual blurb or video presenting an idea of what was lost. As a sacred space, the gallery removes objects from any aesthetic or historical context. The meaning of the object is then primarily directed by its curation, by the autonomous eye of the gallery, in this disembodied reduction that O’Doherty speaks of. As a contact zone, it is vital that the gallery facilitate, or hold, multiple voices and perspectives instead of favouring one and silencing the other(s). Decolonization efforts within the gallery space can and should be understood, in part, as attempts to mitigate this power dynamic, or monolingual communication where the only voice heard is the curatorial and the rhetoric of power for which it stands, or speaks. The Task of the Curator Within the dynamic of the gallery, the responsibility of the exhibition ultimately falls to the curator. As Alexandra Sauvage contends, the role of curator is akin to that of a collector. Historically, galleries find their roots in cabinets of curiosities or wonder chambers from the Renaissance, where frequently ‘a meaning [of the collection] had nothing to do with the primary functions of the objects collected. Science, nature, aesthetics and mysticism were all intertwined in a logic dependent only on that of the collector ’.[8] Later, taxonomic or classificatory ordering would take hold of gallery spaces, but their collection and organization still ultimately relied on the curator’s particular system of reason, or cultural, epistemic biases. As analyzed by philosopher Walter Benjamin, collecting is an inherently political action; curation is a practice of organizing the world into a coherent whole. Benjamin writes that the collector’s relation to objects is one: which does not emphasize their functional, utilitarian value—that is, their usefulness—but studies and loves them as the scene, the stage, of their fate. The most profound enchantment for the collector is the locking of individual items within a magic circle in which they are fixed as the final thrill, the thrill of acquisition, passes over them.[9] We can align the collecting process with rhetorical functions because the collection depends upon discursive practices; and so, we find it necessary to ideologically interrogate the curator within decolonization practices, as their positionality and role within the gallery are not only inherently political but also saturated with the politics of the one who inhabits this role. Indeed, this ‘magic circle’ within which acquisition affixes the object resonates with O’Doherty reduction theory of the gallery space, the boundaries of which the curator draws. André Lepecki identifies the role of the curator as ‘the management of the modes of visibility, valuation, and discursive life of objects’, controlling or mediating even those more meandering or diffused relations gallery attendees will have with the objects.[10] Yet, let us not forget to address the history of curation in our treatment of its contemporary expression. Since the 18th century, Western curating has been a function of the creation and management of colonial collections. The gallery space was a treasure house and the curator was the guardian of colonial plunder. Indeed, galleries are a medium of colonialism: The[ir] collections were built on conquest (the Napoleonic expeditions, the Benin Bronzes…) and on assumptions of ‘salvage’—the necessity and the right (guaranteed by a linear, progressive History) to collect vanishing or endangered artifacts, as well as written and oral records. Colonial collecting, which reached something like a fever pitch in the late 19th century, conceived of museums and archives as ultimate resting places, repositories for a precious legacy, kept in trust for science, for the nation, for Civilization, or for Humanity.[11] Curatorial practices uphold an evolutionary sequence of history which assumed a vantage point at the end, a prized location reserved for Western colonial powers, which enforced ‘a stable hierarchy of places and times’.[12] Broadly speaking, the gallery space historically operated as a tool of colonialism and imperialism. Modern curatorial practices are attempting a kind of critical intervention, to dislodge both itself and the gallery space from its modern origins and their legacies. The legacy of the gallery stands as ‘the collections of valuable things, and the job of the curator [is] to keep them safe—carefully displayed for public edification, or preserved in storage for research purposes’.[13] The curator stands as a possessor of an authoritative knowledge, which results in the arrangement of objects as vehicles for a unilateral transmission of a particular history. Contemporary curatorial work, in the times of decolonization and reconciliation, is attempting to engage with and articulate new histories and perspectives. Yet what would it mean to collaborate, or cohabit the gallery space, when the milieu and historical criterion of curation was for so long exclusionary and colonialism? The Task of Collaboration Recent trends in galleries and gallery studies, both anthropological and art historical, are rethinking the existing theories and methodologies associated with the treatment of Indigenous collections. These spaces are attempting to open themselves up to collaborative practices, with the aim of maintaining the gallery while imbuing it with the perspectives and needs of the Indigenous communities from which the exhibited objects originate. Ostensibly, this undertaking is a heteroglossic gallery practice—an attempt to present multiple embodied and cultural perspectives, instead of the typical, unilateral directive which O’Doherty describes. Collaborative exhibitions do not ask one actant within its network to absolutely vacate their positionality to make room for the other, even if this perspective is that of the settler who historically took precedence—this would only replicate, though role reverse, the problematic, ubiquitous dynamic of domination O’Doherty identifies. Rather, the two voices and perspectives attempt to speak to and with one another. To put it simply, collaborative exhibitions are a practice against assimilation and towards equitable cohabitation. Anthropologist Charlie Gere, reflecting on Clifford’s description of the museum as a contact zone, argues that the gallery ‘need not be thought of just as a storehouse of colonial plunder, nor a one-way medium, but as a place of interactive communication’.[14] Gere utilizes Clifford’s museal contact zone as a medium to rethink Western colonial curatorial norms, with the intention of challenging and reworking gallery relationships which he argues operate through one-sided imperialist appropriation. Here, we again understand the importance of the endeavour of collaborative exhibitions—their attempt to rethink and rework the encounter between Indigenous communities and settler curators within the gallery space. As Clifford writes: ‘[w]hen museums are seen as contact zones, their organizing structure as a collection becomes an ongoing historical, political, moral relationship—a power-charged set of exchanges, of push and pull’.[15] What the gallery space communicates, through its curatorial practices, possesses a dynamic relationship to the political sphere—both influencing and being influenced by larger cultural relationships and ideologies. The decolonization of the gallery space, as this vital zone of colonial contact, then engages more urgently with broader political moves of reconciliation. The Task of Decolonizing Translation Collaborative exhibitions rely on encounters between Indigenous knowledge keepers and settler curators, where both groups attempt both to speak and be heard to create the conceptual (as much as the physical) ground upon which the exhibition will stand. Collaborative work is ostensibly a process of translation, yet it is one which challenges conventional notions of translation as the rendering of a symbol expressed in one language or media into another—faithfully preserving or conveying the original , or pure, essence of the symbol. Rather, the sort of translation at stake in the gallery is a temporal and open-ended practice. This can be understood with reference to works of feminist scholar Donna Haraway as an alignment towards resonance, or a fluid creation of middle ground between two perspectives instead of a concrete exchange of static symbols and signers. Haraway writes that in decolonizing our language and encounters we have the task of ‘recoding communication and intelligence to subvert command and control’—of moving away from the tacit practices and dynamics of the gallery space that O’Doherty describes.[16] To construct the interactive gallery practice Gere calls for, we can utilize Haraway’s argument that we ‘dream not of a common language, but of a powerful infidel heteroglossia’—that we create such a space where the perspectives of both Indigenous knowledge keepers and settler curators can co-exist in dynamic relation with one another.[17] Yet, this endeavour is not so simple, and often within Indigenous-settler relations we find that settler perspectives often take precedence.[18] To illuminate this trouble, it is useful to turn to anthropologist Brian Noble. His work examines inter-cultural collaborative endeavours between settler and Indigenous communities, interrogating the inequity of these relations which often favour and replicate coloniality. These mechanisms of encounter ‘work by translating one socially embedded form of transaction into the terms or practices of another’.[19] In a 2015 work, Noble argues that there is an inherent coloniality to the middle ground of encounter, writing that settlers in inter-cultural collaborative efforts ‘move within a typically colonial middle ground between Indigenous politics and state policies’.[20] There is a dominance of settler definitions and perspectives within these dialogues, and so the resolve and practices the encounters produce tend to favour and replicate colonialism. However, that different worldviews tend to cancel each other out is a problem not of knowledge, but of certainty. Feminist scholar and political theorist Linda Zerilli argues that ‘certain epistemic commitments have come to define discussions’, which is to say that our ways of seeing overrides that which exists, or that which we attempt to undertake.[21] As an example, when I walk, the knowledge that I have two legs does not enter into the act of walking. In Zerilli’s account, we are often certain about things without taking them up as objects of knowledge, instead engaging with them more immediately, as a form not of thought, but of action. Zerilli contends that one does not experience one’s hinge propositions—those truths one takes for granted reflexivity, such as tacit gallery functions—as an object of cognition, but rather one acts them out: in daily habits and practices. It is on the level of the routine or the everyday that we uphold colonialism, and so too it must be at this level that we dismantle it. We must not, however, confuse this task as a prelapsarian undertaking, whereby we might return to the garden of ideas, encounters, and gallery spaces unmarred by colonialism and imperialism. Indeed, Haraway asserts that there is no site of unmediated knowledge, no location free from politics, and that the task of decolonization is ‘not about the false vision promising transcendence of all limits and responsibility’ but rather ‘turns out to be about particular and specific embodiment’[22] For Haraway, politics is an embodied instinct; and similarly, for Zerilli, politics takes place at the register of everyday action. Zerilli takes up Haraway’s ‘specific embodiment’ as the conscious practice of acknowledgement— the passionate commitment to admitting another’s worldview into your own without the assimilation or subsumption of either party. She writes that principally, on the level of interpersonal translation, this posture of acknowledgement is the recognition that ‘to make a claim is to speak for someone and to someone’—that we must recognize both ourselves and the other as constituents in the political encounter.[23] In the story told by my literature, the decolonization of the gallery space emerges as a complex and relational task, whereby settlers must challenge and overcome ingrained structures of colonialism to move towards more inclusive and just practices. Within collaborative exhibitions in particular, as an enduring relationship of mutual obligation, settler curators seek to facilitate the equitable cohabitation of the gallery space through dismantling the old hierarchies of reductive and exclusionary social criterion. However, in the attempt to bring decolonial theory into praxis in the gallery space, we often find an impasse of translation between settler curators and Indigenous knowledge keepers: the terms they use, even in the same language, have discontinuities in what they mean to each—and settler, colonial definitions often invade this gap. Taking acknowledgement to be the principal motion of both revealing and dismantling the harmful structures of gallery space, the focus of my research was to locate the barriers and aids to this endeavour within collaborative exhibitions. Methods and Methodology My research explored the experience and interpretations of settler curators working with Indigenous knowledge keepers within collaborative exhibitions. As my objective was to examine the condition of reconciliatory movements in the gallery space as they interact with and operate under the institutional expectations and functions of gallery space, my research gives attention to the shifting conceptions settler curators engaged in this work possess as they relate to their work, themselves, and the objects under their care. The qualitative method of semi-structure granted me access to the nuances of these decolonial efforts, with an emphasis on the lived and felt aspects of this work. Further, the semi-structured interview style allowed me to introduce several topics of consideration but still granted space for my interviewee to engage collaboratively in the direction of our interview—to reflect the participatory nature of my data, I henceforth refer to my interviewee as my interlocutor. Indeed, I must note that my interlocutor frequently anticipated my questions, charging into the ideological weight and history of their actions while describing their experiences as a curator working within a collaboration exhibition. The inclusion criteria for my research required my interlocutor to self-identify as a settler and to have worked or be working with Indigenous knowledge keepers in gallery spaces. I recruited via email. We conducted the interview via zoom which lasted approximately one hour, focusing on my interlocutor’s participation within collaborative exhibitions. With my interlocutor’s consent, our interview was audio-recorded and transcribed. His data was anonymized. All references to specific exhibitions were omitted to protect the privacy of my interlocutor and their collaborators. The COVID-19 pandemic, and its ensuing disruption of not only the gallery but the global community, necessitated that I supplement the scarcity of available curators with case studies and examinations of gallery didactic labels. My data therefore consists of one in-depth, semi-structured, qualitative interview with a Canadian settler curator whose work currently centers on collaborative exhibitions with Indigenous knowledge keepers. I utilized our interview to illuminate and further explore the findings of the following case studies: The Portland Museum & Tlingit Elders, The Glenbow Museum & Blackfoot Elders, and The Kwagiulth Museum. The scarcity of my data, as well as my qualitative approach, impairs my research’s claim to representability. Under ideal research conditions, a series of interactive interviews in person and in gallery spaces would provide an embodied consideration into the settler curators’ evolving relation to the gallery space. Further, with more time, a longitudinal study of gallery spaces throughout the process of a collaborative exhibition would shed further light on the nuances of this decolonization effort. However, the scope of an undergraduate thesis limits my ability to conduct extensive or long-term research. My research is a brief, reflective look into the particular experiences of settler curators as they attempt to decolonize the gallery space through their participation in collaborative exhibitions with Indigenous knowledge keepers. Analysis, or, What’s in a Name My research uncovered that the tacit postcolonial structure of the gallery space is frequently at odds with the task of decolonization. I found that the gallery maintains an economy of accessibility of the object, or display, where the very language proper the gallery space frequently precludes Indigenous agency and meaningful collaboration. My interlocutor often found the implications of certain terms to impede his decolonization efforts and so it became necessary for him to change the label he used to describe both himself and his work. The tacit process of curating an exhibition frequently undermined my interlocutor’s practice of acknowledgement—disrupting his posture of attentiveness to the implications of his presence, language, and routine practices. In our interview, I found a puzzling maze of discrepancies which divided the role of the curator from the task of collaboration. My interlocutor attempted to hold together these disparate modes of being in an unresolved inner dialogue. The endeavour of decolonization therefore inevitably tripped him up as he tried to unify these two realms.[24] Due to this harsh polarization, I found it best to take a dialectical approach to uncover the task of the curator in this era of reconciliation and to illuminate the corollaries between the ostensibly contrasted ways of being. The principal areas of concern of my research were the role of curator, their approach to the collection, and how they situate and showcase the collection to the public. I labeled these categories curator/keeper, artifact/object, and past/present to reflect my dialectical approach—whereby I juxtapose previous and novel conceptions to illuminate and isolate the trouble of these gallery practices. Curator / Keeper I use ‘keeper’ sometimes. To me, it makes a little more sense. It maybe has a different nuance than curator…’ At the start of our interview, I asked my interlocutor to describe his current role. In answering this first (and ostensibly basic) question, my interlocutor revealed the bifurcated nature of collaborative practices for settler curators. He described himself as both a curator and a keeper—the former when he spoke of his official title, and its designated responsibilities, and the later when discussing decolonizing work, principally through reference to collaborative exhibitions. This is the first discrepancy—the definition of custody—and so the question became what stood on either side of this divide? And further, why was it there to begin with? To curate is to collect, research, and study artifacts . My informant reflected a fidelity or obligation to the gallery space when he spoke of curating: all instances referred to a duty to preserve and uphold his institution’s discourse. He spoke of collecting artifacts under the purview of the gallery space’s facilities. This definition of curation reveals undertones of its heritage in the colonial history of the gallery space, where the curator was the guardian of imperial plunder and ideology.[25] As will become increasingly clearer, my interlocutor is keenly aware of the colonial traps precarious through curatorial practices. My interlocutor described traditional curating as ‘bringing together a bunch of materials in a new way to tell a story in three-dimensional space’. Here, we see the gallery position curator as the authority over the collection, bringing together disparate objects to tell or maintain a story of their own choosing. Curating leaves little room for meaningful or equal collaboration. Further, the collected objects appear to belong to the gallery, affixed by the curator absolutely into this ‘magic circle’ of the collection which divorces the objects from their living relations.[26] My interlocutor noted this problematic dynamic of curation when he later remarked that the etymological history of the term curator initially referred to ‘a keeper of souls’. This reflects O'Doherty's description of the gallery as a space of confrontation and not of collaboration. The primary characteristic of this role is the maintenance of ownership, putting forth an allegiance to the gallery space before the objects and cultures it houses. Within collaborative exhibitions, this dominant posture estranges the curator from the task of collaborating with Indigenous knowledge keepers. By contrast, to keep is to steward, care for, and share objects. My informant spoke of keeping when he described his role within collaborative exhibitions and his responsibility to both his collaborators and to the collection. For my interlocutor, this term denotes ‘caring for not just the objects, but the communities from which they come. You’re helping preserve things that are important to them that are in our storage [emphasis added]’. With this claim, my interlocutor highlights how the usage of the term keeper—and ultimately, the embodiment of this role—works to decenter the object’s placement in the gallery space and focalize its living history. This new function is not simply the keeping of souls, but the recognition of the complex political bodies from which they originate. Further, the recognition of the object’s living relations and social life reflects the temporality of keeping, against the curator’s more absolute ownership. In identifying with the role of keeper, my interlocutor sought to distance himself and delineate his practice from the colonial heritage of curation and work towards engaging the perspective and needs of his collaborators. The most urgent reason why my interlocutor used the label keeper was to equate his work to his collaborators. He discussed intentionally utilizing this term when working in collaboration with Indigenous knowledge keepers to forge a ‘connection between both of us using that term’—to show that ‘ we are all keepers of tradition ’. In identifying with the label of keeper, my interlocutor sought to equate his position, responsibilities, and authority with that of his Indigenous collaborators. The process of identifying with the label of keeper works towards the dissolution of semantic distinctions and barriers between settler curators and Indigenous knowledge keepers within the gallery space. Case Study: The Portland Museum & Tlingit Elders In 1989, the Portland Art Museum collected a diverse group to discuss its Rasmussen Collection of Northwest Coast Native American Art. Museum staff, art historians, and Tlingit Elders accompanied by translators to discuss the re-installment of the collection’s exhibition. The curators presented objects from the collection to the Elders for comment one at a time, with the expectation that they disclose the objects’ histories—how each object was made, by whom, and for what purpose. The museum staff assumed the Elders would provide the origins and context of the objects. This was not the case. Instead, the Tlingit Elders ‘referred to the regalia with appreciation and respect, but they seemed only to them as aides-memoires , occasions for the telling of stories and the singing of songs’.[27] The objects in the Rasmussen Collection, the focus of the consultation, were left at the margin: ‘[f]or long periods no one paid any attention to them’.[28] The session brought forth voices, songs, dances, living stories and experiences. Unfortunately, no staff members at the time understood how to reconcile the ceremony they had witnessed with the gallery’s practices, and the session was archived—suspending not only the insights but the desires the Tlingit Elders articulated. We can see the dynamics of curation play out in the structure of this meeting, and how ultimately this structure precludes Indigenous agency. At the basement meeting, curators presented objects from the collection to the Elders for comment one at a time . Immediately, we can understand that though this gathering was meant to be an act of collaboration, the curators maintained ownership over the objects—presenting them in their own order, not sharing or allowing the Tlingit Elders to come to their own objects on their own terms. The curators presented the objects with the expectation that they reveal their histories, with the intention of up-keeping and maintaining their ownership of the objects. While collaboration was intended, the curators stood between the objects, their living relations and originating community. In this way, curating speaks of artifacts, absolutely belonging to the museal space while keeping speaks of objects, with living relationships that extend beyond the gallery walls in which they are temporarily housed. Artifact / Object I’m struggling with those terms and that’s a good thing. It’s an active thing. I don’t have it figured out. Objects and artifacts. I think I use them for reasons similar to why I use curator and keeper… From an anthropological standpoint, an artifact is a human-made item which discloses vital information about the culture and society of the humans from whom it originated. Within the gallery space, however, ‘artifact’ denotes a process of discovery and examination which then arrives at the eventual presentation. The curator rearticulates the relations of the object, subsuming the particular to speak to the general public. My interlocutor was keenly aware of the implications of an object’s placement in the gallery space, and purposely spoke of his collection as such—as objects—over and against the language of artifacts. This is the second discrepancy: the tension of one’s approach to the collection. Throughout our interview, my interlocutor spoke of consciously utilizing the term ‘object’ to dislodge his approach from the gallery’s system of abstraction. For my interlocutor, the term artifact reflects a process of embalming. He described it as the petrification of the object into a ‘final, unconnected thing’ that is ‘divorced and stripped of all the context processes around it which gives it a false impression of what you’d call objectivity’. The term artifact speaks of objects displaced, removed from their original context to be supplanted and suspended in the gallery space. This motion simultaneously centralizes the gallery’s presentation of the object and mystifies its construction, which enables the misappropriation of objects into false and otherwise biased histories. The term ‘artifact’ is homogenous precisely in its opposition to the heterogeneity identified as locality—the richness of an object’s particularity. My interlocutor discussed the deterritorialization of the object: the manner in which its ideological and physical location in the gallery space effectively abstracts the object from its context, utility, and relationality. What my interlocutor called the ‘false objectivity’ of the gallery, and it is precisely the control and patronization of the object O’Doherty speaks of. My interlocutor also described this as the process of ‘artifact-ification’ where the gallery suspends the object without relative time, place, or space. Instead, O’Doherty’s white cube surrounds the object with typically stark white walls and concrete floors which present the idea of objectivity and universality through its lack of specificity—presenting a view from nowhere which emboldens the object to a silence par excellence . To resist this atrophy of the object or its ‘artifact-ification’, my interlocutor described consciously reconstituting his language, speaking of objects rather than artifacts. This term, for him, acknowledges the various perspectives each object contains and the multiple and on-going relationships in orbit around it. He simply stated that ‘there is something about [the term] ‘object’ which is a little more open’. It contrasts and brings to the fore the gallery’s language of artifact as speaking to a static notion of the past. My interlocutor utilizes the term object to acknowledge the legacy of colonial violence and domination in the gallery space, claiming succinctly that ‘it brings out some of our biases in the Western perspective that we turn objects into unconnected things’. In employing the term ‘object’, my interlocutor decentralizes the gallery’s ideological determination on the object, as an artifact of a fixed past, and turns towards the object itself, as a living being enmeshed in multiple living histories. The term object, however, is not without its own set of issues. My interlocutor describes continually re-evaluating his linguistic practices as he continues to work with and learn from his Indigenous partners. Indeed, the term object is often deeply problematic, as it isolates the object in its immediacy and divorces it from the rich particularity of its context. My interlocutor described an interaction he had with an Indigenous artist who resisted this term as ‘[their] work is a process and the actual thing [the artwork] is just part of that process’. The term object for this Indigenous artist put the focus on their piece as a final product and not as an ongoing set of relationships. My interlocutor reflected a need to be flexible with his grammar, and recognize that the language of the gallery must come from the communities from which the objects originate. His use of the term object is an active practice which reflects his effort to recognize that the gallery’s way of interacting with objects is often irreconcilable with the originating communities’ needs and desires. The power of the curator as an individual, however, has real-world limitations. This ‘artifact-ification’ which my interlocutor described comes from many essential and inconspicuous aspects of curation—of putting together a show. The act of working in the gallery under the purview of his curatorial responsibilities often disoriented my interlocutor's attentive posture of acknowledgement towards certainty—of curatorial doing without knowing or of acting without necessarily engaging the implications of his actions. Indeed, my interlocutor identified the bureaucracy, or tacit functions of his vocation, to debase the object and convert it into an artifact. Namely, he identified the process of acquisition and the creation of exhibitions as a task which muddles his attempts at mental decolonization. The Trouble of Acquisition We have to use FedEx. We have to ship it here. We have to go to the conservation; and I wonder will that practice alone reinforce things that might not really fit with the community we're working with? The ways in which galleries ‘acquire’ their collections, or have objects brought to the gallery is an act often alienated from reconciliatory efforts. My interlocutor described how these frequently unceremonious acts, which appear to be of little consequence, are in fact ideologically loaded and posture the curator towards the gallery and away from the object and its community. He cited specifically how many objects enter the gallery through FedEx and other commercial couriers, which complicates his decolonization efforts as the object’s living relations and dynamic value are reduced when he fills out insurance papers. He stated that the process of FedExing an object ‘reinforces things that go against what we want to do, a lot of invisible processes that we do that maybe shape our conceptions and actually might create problems’. Quantifying cultural history is a reductive and colonial act. My interlocutor described it as an ‘invisible practice’ or part of curation which reinforces the gallery’s grammar of encounter, reconditioning him to move towards the object as an artifact. The task of acquisition flustered my interlocutor’s posture of acknowledgement, as he was torn between his curatorial duties to acquire new objects for collection and his reconciliatory responsibility to respect and acknowledge the object’s living histories. To put it simply, what can it mean to receive a sacred object in much the same way one acquires a box of pens? The Trouble of the Exhibition Sometimes we just need an object. On some level we know that this object is part of a community and of a knowledge system that isn’t necessarily material, but at the same time, when you're working within a set of expectations of a show… The structure of exhibitions, as hubs of materialism, by virtue of their aesthetic structure frequently subsume the object into an ethos of indiscriminate utility. My interlocutor discussed how the very process of putting together an exhibition often distorted his relationship to the object. He instanced specifically how the aesthetic needs of a show—organizing a pleasing and dynamic space—would occasionally take precedence over the meaning of the object. My interlocutor ascribed this problem to the innate materialism of the gallery space, which frequently dominates the immaterial aspects of objects in service of the celebration of the visual. He contended that the current practice of exhibiting the object is frequently an issue, as it cloaks the interconnected and often intangible relations of the object with its ability to fill empty space. My interlocutor described this as ‘operationalizing’ the object, a process which produces immense mental strain in the bifurcation of the presence of the settler curator in the gallery—at once responsible to manufacture an exhibition and also to consider the delicate meaning and relations of the object. The problem, for him, is how this locality conditions him away from the object as ‘just material relationships and processes’ instead of as ‘part of an interconnected web of knowledge’ which frequently occurs during the exhibition process. Contemporary collaborative exhibition operations sever the task of collaboration from the work of curation. Indeed, equal treatment does not decolonize the gallery space per se —my interlocutor stressed that there must be equity, or respect for the particular meanings and relations the object possesses. To put it simply, what is left of the meaningfulness of particular objects if we can replace them on the gallery wall? Case Study: The Glenbow Museum & Blackfoot Elders[29] In the 1990s, The Glenbow Museum and Blackfoot Elders came together to create the collaborative exhibition Nitsitapiisinni: Our Way of Life . The Blackfoot Elders agreed to share their cultural knowledge and objects under the caveat that the museum staff participate in Blackfoot ceremonies. They ‘reasoned that if the Blackfoot invited museum staff to ceremonies, staff members would witness firsthand the important role of bundles [of objects] in the community, and would appreciate the need for the bundles to be returned’.[30] The Glenbow settler curators spent significant time in Blackfoot communities at local events and ceremonies to ensure that every ‘element—design, conservation, scripting of text—embodied Blackfoot perspectives and respected cultural protocol’.[31] The settler curators participated in Blackfoot ceremonies to transfer the bundles in gift exchanges between the two parties. The Glenbow Museum repatriated the Blackfoot objects it had housed, but to my knowledge the Blackfoot community continues to loan their objects for display through ceremonial exchange. This process of ceremony challenges the ‘artifact-ification’ which often plagues acquisition through sustaining the living relations of the object. The bundles persist as occasions of social exchange and not as static units of history. The middle ground of this exhibition is the radical decision on the part of the Blackfoot community to include settler curators in their ceremony. This important caveat to the ordinary economy of acquisition forces settler curators to acknowledge and reckon with the object’s living relationships. The Blackfoot extension of community reterritorialises the object—proclaiming the object as a deeply rooted and connected thing. Such a cultural and political achievement decentralizes the object’s placement in the gallery and highlights the transient nature of stewardship. This act of acknowledgement recreates and continues the object’s connection to its community and its embodied position in the present. Past / Present It's not just a repackaging of old things. It's actually the relationships, the discussions, the exchanges, the tensions, the confrontation with different worldviews that's knowledge generating. So I think in the process itself we're all learning new things… The disorienting pull of both the gallery curating and collaborative keeping of artifacts and objects unfolds in how a settler curator displays the collection. In the dizzying grammatical cleave of collaborative curation, what becomes of the language of the exhibition? My interlocutor outlined two principal and conflicting articulations of the collection: text-based and collections-based exhibitions. The former comes from established literature and historical narratives, operationalizing objects to present or enforce pre-existing ideas about a particular culture or period of time—the tacit curatorial way of organizing an exhibition. The latter comes from the collection itself, engaging and centering the living histories inherent to the object—which is the call of collaborative exhibitions. My interlocutor described the tension within exhibition assembly as acknowledging the object’s placement in historical narratives without erasing its presence in the present. This is the final discrepancy—the question of how to speak of objects, or where to locate them in time. The curator stands enmeshed in multiple, overlapping and often contradictory histories and is tasked with translating the rich life of the object to the audience. Throughout our interview, my interlocutor reflected a tension of attempting to situate objects in the present, which is to speak of them actively as a means of opening them to both the audience and his collaborators, against the gallery textual milieu. Text-based exhibitions stand in the past—the objects firmly sealed in an untouchable history. My interlocutor described this process of exhibition generation as ‘going through old catalogues and books and then turning it in into a three-dimensional [show]’. The meaning and social life of the object are then external—coming from discourses of which the object is not an active constituent. This lack of agency extends also to both the Indigenous knowledge keepers as well as the settler curators as the gallery space treats history as sacred, sealed and untouchable—the relics of which the gallery displays.[32] My interlocutor succulently critiqued this type of exhibition as ‘just a repacking of old things’—where both the objects, the curators, and collaborators are able to truly touch or impact the homogenous narrative the gallery space perpetuates. Collections-based exhibitions stand in the present—the objects themselves and their active relationships generate the content of the exhibit. The internal life of the object as it relates to its creator, the curator and collaborators, and the viewer is the principal focus of these shows. The principal actants within the gallery space—namely the curator (and their associates), the viewer, and the object—are all acknowledged within this exhibition process. Here, the gallery assumes nothing of their particular way of seeing, neither does the thesis of the exhibition subsume the idiosyncrasies of their experience, but rather illuminates and celebrates the dynamic perspectives of all involved actors. My interlocutor described collections-based exhibitions as a process rather than as a product—the work is what he described as ‘knowledge-generating’ through centering the present and active encounter with the object. The introduction of collections based exhibitions calls forth the problematics of text-based exhibitions. The ability of the object to sit and speak in the present goes against the tacit functions of the gallery space which prefers to seal the object in the past. My interlocutor identified this as a major concern of contemporary curating, and the struggle he faced most often. This is a major concern of contemporary curating, and much of this battle exists in the didactic labels of the exhibition. The Task of Labels [Instead of] going through an exhibit as data, this false objectivity of third-person and false neutrality of a museum voice, I think I would enjoy it if someone was just speaking to me… My interlocutor identified a major breakthrough in his current exhibition when one Indigenous collaborator suggested that they write the didactic labels in first person perspective—written as if someone was speaking directly to the viewer. Didactic labels in the gallery typically disclose the history of an object—how it was made, by whom, with what materials, and for what purpose (Figure 1). Curators place them alongside objects to help guide viewers through an exhibition—labels function to frame the object, focusing attention on certain aspects and histories. Historically, didactic labels deal in the materialism of the object, which aligns it with certain colonial rhetorics in the gallery space. The new first-person labels my interlocutor described sought to counteract this by utilizing active language which is descriptive to the emotional or intangible relations of the object. To illuminate this, I constructed two templates for these types of didactic labels to showcase their structure and priorities. Figure 1: Third-person didactic labels Figure 2: First-person didactic labels Figure 1 presents a static object. The abstract, or externally focused third-person or omniscient label speaks of a textual history rooted in materialism. Its structure is prosaic, a list of facts occasionally aided by a brief anecdote which supports this reductive reading. This method notes the artist or maker as well as the medium as matters of fact, not storied processes of labour and care. This didactic label positions itself as objective through its abstract description—it presents what my interlocutor describes as a ‘final, unconnected thing’, or an artifact. Figure 2 welcomes readers to engage a living object. The prioritization of narrative centres the object's relationships. This welcomes readers to the social life of this object, as the evocative language and accounts bring the object to life. Further, the first person perspective highlights that the label is but one story told about the object, creating space for other accounts. First-person labels seek to speak-with and not speak-of an object’s history. My interlocutor described them as ‘authentic’ and ‘genuine’ opposed to the ‘false neutrality of a museum voice’. The decision of what to write and how to write it informs what a viewer takes away from an exhibition and what meaning they glean from an object. For my interlocutor, the new practice of first-person labels works towards breaking down the gallery’s authorial domination, as it firmly situates the object in the present. Viewers moving the gallery no longer interact with objects as data upholding the thesis of the gallery, but rather as sites of meaningful encounter. This fundamentally stripped down the distinctions and authorial dominance. Case Study: The Kwagiulth Museum The Kwagiulth Museum and Cultural Centre at Cape Mudge (Wei Wai Kai Nation) opened in 1979. The collection—the Kwagiulth’s objects—were not merely to be indiscriminately seen or leered at in showcases, but to be respected and understood as ‘embod[ying] the ineffable [and] re-actualizing the ancestors’.[33] For the Kwagiulth community individual objects embodied specific names and stories, crests and privileges, which could only be transmitted and inherited through Potlatch, particularly through those ceremonies marking the institution of marriage. Kwagiulth Elders warned against dividing the collection into exhibitions, as they left it would ‘stir up the part and lead to as much resentment as the confiscation itself had done’.[34] The division was however unavoidable within the constraints of the gallery space, and it therefore became imperative to articulate the object’s social life—’account for what the objects were, to whom they belong and who their putative ‘heirs’ were to be’.[35] Ultimately, the gallery displayed the objects in strategies found in typical gallery exhibitions—enclosed in glass cases and mounted on walls. The Kwagiulth exhibition however, attempted to subordinate its own aesthetic as a repository of family owned properties through label text written in the present tense and bearing the names of each item’s current owners. The visceral and direct tense of the Kwagiulth Museum triggers overlapping and often disputed histories of its objects. The personal perspective shifts our thoughts to the impact of this inequality on the lives of ordinary people. In calling attention to the present, living, and continuing relations the objects have outside of the gallery, this exhibition zeroes in on problematic assumptions typical exhibition language perpetuate. The power of situating the gallery in the present is that the object then displays an inventive process of fluid knowledge. Although, crucially, the Kwagiulth Elders were uncomfortable with the processes of exhibition as the false capitulation of objects, the use of first person language and situating the collection in the present seeks to retrieve the social life of the object. The introduction of collections based exhibitions calls forth the problematics of text-based exhibitions. The ability of the object to sit and speak in the present goes against the tacit functions of the gallery space. It is the curator’s role is to arrange an authoritative message for the public through exhibiting objects in a manner calculated to render that message visible. The usage of first person perspective illuminates this process of construction, and reconstitutes the gallery space as one storyteller of many. Conclusion, or, Is it Possible to Negotiate the Constitutive Limits of the Gallery Space? At the start of our interview, my informant discussed the notion of ‘airwaves’, or the space one takes up in talking, especially in popular media and discourse. He described being attentive to the priority his voice, as a settler, often receives in discussions of collaborative exhibitions and decolonizing gallery spaces practices. It occurs to me that one may perceive my research as an attempt to discover if there was a way for settler curators, or for the gallery itself to be constructed in such a way that they could be impervious to perpetuating colonial violence. Indeed, much literature on decolonizing the gallery space participates in a discourse of ‘redemption’—attempting to salvage from the histories of violence relations of democratic, non-hierarchical exchange that are to govern contemporary gallery spaces as free and equal contact zones.[36] The essential take away I found from my research is that this kind of redemption is not possible—and that thinking this way, thinking there is or could be an absolute and monolithic solution, is part of the problem. We cannot construct the proper or perfect posture for this makes us artifacts of our present which will soon be the past as we continue to learn and live with others. Keeping objects in the present currently works for my interlocutor as a practice of acknowledgement which illuminates the colonial vestiges of curating artifacts in the past, but even now these ways of being do not always meet the challenges of decolonizing the gallery space and succeed. Keeping antagonizes the implications of absolute and dominant ownership nascent in curating, yet still finds itself tripped up when it performs bureaucratic tasks. To use the language of objects illuminates the embalmed nature of artifacts, but this language still falters when assembling exhibitions. The position of the present in the gallery space seeks to salvage the internal life of the object, yet its mere presence in the gallery is an abstraction. Reconciliation in the gallery is an active process, something that we must continually work at together for there can be no personal reckoning. To shore up the violence of the inherited body or institution—of which the gallery space is but one of many—we must be in dialogue with others, specifically those communities against which these institutions continue to perpetrate harm. To reconcile, from the Latin ‘re-’ meaning back and ‘conciliare’ to bring together, expresses an ardent force towards another. This is not to dismiss the vital work and reflection that settlers, and others in privileged communities must undertake, but to recognize that the true meaning and value of our actions are found in community, in being-with and being-towards others. If we posit that the purpose and function of the gallery space is to disseminate knowledge, entertain, and preserve objects related to the human story, then the essential question we must ask of ourselves is: who is this for? As we locate vestiges of colonialism intrinsic in the ways our galleries function, we must critically engage how current practices are in fact antithetical to their intended practice, namely of education and empowerment, and investigate the ways in which they uphold, often invisibly, structures and ideologies which continue to alienate and harm racialized and marginalized communities . Caroline DeFrias Caroline DeFrias (CDF) is an artist-academic, currently operating in Mi’kma’ki territory in Kjipuktuk (so called Halifax, Canada). Their work, through a variety of mediums and disciplines, seeks to explore the construction of gallery space and the encounter of the art object, notions of inheritance and identity in relation to immigration and (re)settlement, as well as the ethics and pathos of the archive. They hold a Combined Honours with distinction Bachelor of Arts from the University of King’s College in Social Anthropology and the Historiography of Science, with a certificate in Art History and Visual Culture, and are pursuing a Masters of Fine Art in Art History from Concordia University. [1] United Nations Declaration on the Rights of Indigenous Peoples (2008). [2] André Lepecki, ‘Decolonizing the Curatorial’ (2017) 47(1) Theater 102. [3] J Parker, ‘Beyond Learning: Exploring Visitors’ Perceptions of the Value and Benefits of Museum Experiences’ (2008) 51(1) Curator: The Museum Journal. [4] Ray Rosenzweig and David Thelen, The Presence of the Past: Popular Uses of History in American Life (Columbia University Press 2000). [5] ‘We call upon the federal government to provide funding to the Canadian Museums Association to undertake, in collaboration with Aboriginal peoples, a national review of museum policies and best practices to determine the level of compliance with the United Nations Declaration on the Rights of Indigenous Peoples and to make recommendations’. TRC Call 67 < https://www2.gov.bc.ca/assets/gov/british-columbians-our-governments/indigenous-people/aboriginal-peoples-documents/calls_to_action_english2.pdf > accessed 6 June 2022. [6] James Clifford, Routes: Travel And Transformation In The Late Twentieth Century (Harvard University Press 1997) 188-219. [7] Brian O’Doherty, Inside the White Cube: the Ideology of the Gallery Space (University of California Press 1976) 10. [8] Alexandra Sauvage, ‘To Be or Not to Be Colonial: Museums Facing Their Exhibitions’ (2010) 6(12) Culturales 104. [9] Walter Benjamin, ‘Unpacking my Library: A Talk about Book Collecting’ in Hannah Arendt (ed), Illuminations (HarperCollins 2019) 61. [10] Lepecki (n 2) 102. [11] Clifford, ‘The Times of the Curator’ (2011) 7(4) Collections 400. [12] ibid. [13] ibid 402. [14] Charlie Gere, ‘Museums, Contact Zones and the Internet’ in David Bearman and Jennifer Trant (eds) Museum Interactive Multimedia 1997: Cultural Heritage Systems Design and Interfaces: selected papers from ICHIM 97, the Fourth International Conference on Hypermedia and Interactivity in Museums, Paris, France (Archives & Museum Informatics 1997) 59. [15] Clifford (n 6) 192. [16] Donna Haraway, ‘A Cyborg Manifesto: Science, Technology, and Socialist-Feminism in the Late Twentieth Century’ in Simians, Cyborgs and Women: The Reinvention of Nature (Routledge 1991) 22. [17] ibid 28. [18] We need look no further than the current lobster lawsuit between the Mi’kmaq and non-Indigenous fishers with centers on the questions of the definition of ‘moderate livelihood’. The Peace and Friendship treaties states that Mi’kmaq have the right to hunt, fish and gather for the purposes of earning a moderate livelihood—a term left ambiguous and without definition from the Canadian state to this day. In ensuing configurations, the settler state dominates the meaning of this term and so regulates Indigenous fishing. Cf. Katie Dangerfield, ‘Why the term ‘moderate livelihood’ is at the centre of N.S’.s fishery dispute’ ( Global News , 23 October 2020) < https://globalnews.ca/news/7405129/nova-scotia-fishery-dispute-moderate-livelihood > accessed 6 June 2022. [19] Brian Noble, ‘Niitooii—‘The Same That Is Real’: Parallel Practice, Museums, and the Repatriation of Piikani Customary Authority’ (2007) 44(1) Anthropologica 338. [20] Noble, ‘Tripped up by Coloniality: Anthropologists as Instruments or Agents in Indigenous—Settler Political Relations? (2015) 57(2) Anthropologica 428. [21] Linda Zerilli, ‘Doing without Knowing: Feminism’s Politics of the Ordinary’ in Cressida Heyes (ed) The Grammar of Politics (Cornell University Press 2003) 131. [22] Haraway, ‘Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective’ (1998) 14(3) Feminist Studies583. [23] Zerilli (n 21) 148. [24] Noble (n 20). [25] Clifford (n 11). [26] Benjamin (n 9). [27] Clifford (n 6) 189. [28] ibid. [29] The term ‘Blackfoot'' was not an Indigenous term used by this group to identify themselves. They recognized themselves by their tribal names: the Peigan, which includes the Amsskaapipikani or Blackfeet in Montana and the Apatohsipikani or Pikani in Alberta; the Kainai, or Blood, in Alberta; and Siksika, also in Alberta. Each group is distinct, with its own customs and political leaders. They share cultural practices such as the ookaan and speak dialects of the same language. More recently, they have joined as a political body, adopting the Western term ‘The Blackfoot Confederacy’. Cf. Cara Krmpotich and David Anderson, ‘Collaborative Exhibitions and Visitor Reactions: The Case of Nitsitapiisinni: Our Way of Life’ (2005) 48(4) Curator: The Museum Journal. [30] Krmpotich and Anderson (n 29) 380. [31] ibid 381. [32] O’Doherty (n 7). [33] Barbara Saunders, ‘Kwakwaka'Wakw Museology’ (1995) 7(1) Cultural Dynamics 44. [34] ibid. [35] ibid 45. [36] Ben Dibley, ‘The museum’s redemption: Contact zones, government and the limits of reform’ (2005) 8(1) International Journal of Cultural Studies.

A front-runner in the fight for equality and justice, Professor Judith Butler is one of the most influential philosophers of the past century whose work has transformed the field of queer and feminist scholarship. By redefining what gender means and how it is displayed, Butler has broken down societal and cultural barriers, and, most importantly, allowed others inspired by their work to finally understand their identity and their place in the world. Both an activist and a scholar at UC Berkeley, they have also worked to blur the lines between the academic and public spheres, redefining what it actually means to be an intellectual in the current era. In this interview, Professor Butler delves into the increasing censorship of gender studies, discusses the unjust treatment of war victims, and reflects on their career thus far. This interview was conducted on 10 May 2022. CJLPA : For the interest of our readers, could you tell us about your story and your professional trajectory, how you got to where you are now? Professor Judith Butler : I was trained in philosophy at Yale University and in Heidelberg in Germany and was meant to be a somewhat classical continental philosopher. I studied Hegel, Marx, Kant and I continue to love that work but I did enter the world of gender studies and gender politics in the late 1980s, in part because I suffered discrimination on the job market on the basis of my gender presentation and sexual orientation. I realised I couldn’t get past those obstacles easily and so I thought that I should probably write about it, make it my theme. As a result, I produced scholarship that is a melange of continental philosophy and feminist theory. I’ve also been active in human rights organisations including a former organisation called the International Gay and Lesbian Human Rights Commission, but also the Center for Constitutional Rights in New York City—and I am involved in Jewish Voice for Peace and engage in activism for Palestinian rights of political self-determination. I also continue to consult with a wide number of countries, policymakers, and feminist, queer, and trans activists on gender politics, trying to fight the anti-gender ideology movement which has turned out to be quite influential and destructive. In fact, I’m writing a book on that topic now. CJLPA : You mentioned your work in gender studies as well as your work with regard to feminist theory. Are the two inextricably linked or are they two separate entities, and should they be regarded as so? JB : They’re interlinking projects. They’re not the same but I do not think it is possible to do work in one area without connecting with the other. Both of them are important academic forms of inquiry, and they each need institutional support. Many scholars would not be able to distinguish between what is feminist studies and what is gender studies, since gender is at the heart of both forms of inquiry. Indeed, as academic fields, they are also related to social movements, often teaching literature generated within the context of social movements. And they both require institutional support. Even when one is doing scholarly work in feminist studies—let’s say one is working on renaissance literature or psychoanalytic theory, or something that feels very academic and not particularly activist—one still needs to have an institutional space where that can happen. I need funding for my research, I need a job, or I need a fellowship—in other words that research has to be supported. It cannot be censored, it cannot be criminalised, and my programmes cannot shut down otherwise I can’t do my academic work. So, we might say that even the most self-referential academic work is still dependent on institutional support of some kind: publishers willing to publish, or universities establishing programmes that are keeping them alive. Our academic work depends on institutional conditions that are of public concern, and under certain circumstances, we can be censored or criminalised or our programmes can be shut down, at which point we can’t do that academic work. So, the politics of the problem are in some ways linked to the academic activities themselves. That said, I would say that not all feminist theory has to immediately say, ‘Oh and here’s the activist implication of what I just wrote’. I don’t think so. Sometimes we are trying to understand the world, we’re trying to reconfigure how we understand social relations or history or even the psyche, we’re undertaking projects that are academic in nature that may change people’s understanding and maybe even change their lives or their activism. But I don’t believe we have to justify our academic work through its activist potential, nor do I think we always have to lay out what the activist potential is. CJLPA : Is this a source of frustration for academia, and is there a way to change that? JB : There are two sorts of problems. On the one hand, we are fighting censorship across the world. In India, they closed down something like 40 gender studies programmes, in Hungary gender studies had to move to Vienna, along with the entire university: the Central European University. They were shutting down gender studies because gender is apparently this terribly frightening and destructive ‘ideology’ according to those who oppose it. And now we’re seeing legislation that seeks to keep the word out of certain languages, or keep gender studies and critical race theory out of curricula—both of which have become caricatures, phantasms by those in the positions that criticise them or seek to censor them. So, we do have to be able to say, ‘Look, what we do is open inquiry’. And that’s what universities are supposed to be supporting. We’re asking key questions. We are discussing and debating, we clearly don’t all hold the same view. This is a field of study like other field of studies where there are methodologies that are contested and discussed and revised. There are norms of research and ways of proceeding that are academic in character, and that have as their aim an open-ended inquiry to know something better, to find out what is true or what is real. That is what we do as scholars. We need to defend the study against those who would caricature it, demean it, and substitute a frightening phantasm for the complex work that we actually do. On the other hand, very often in the classroom these days young people want to know what one’s own political position is or what political position they should take immediately on an issue. Sometimes, when you’re asked to take a position, for instance, are you for or against gender studies, it is important to take a step back and question whether gender studies is a monolithic thing that any of us could, or should, vote on in that way. Maybe the reduction of gender studies to a monolith to which we say yea or nay is precisely the problem. As somebody for whom critical thought requires a willingness to call a framework into question, I don’t want to have to take a political position if I don’t like the way it is framed, when it is the frame that is politically problematic. That’s where a critical form or reflection becomes important and that’s also part of pedagogy: we have to ask people to think through their positions, the way they are framed, what they imply, which is precisely not the same as prescribing a certain position or training them how to take them. CJLPA : On the note of critical thinking, how can one be a gender conscious researcher, whatever the field may be? JB : Well it’s interesting, you know I’m reminded of EP Thompson’s very important work on the working class, and he did quite an impressive job in treating the working classes as a kind of subject, and what they underwent, and how this was produced in time and in history—a very textured and persuasive work that had, and continues to have, enormous influence in the field of social history. And my friend Joan W Scott came along and said, ‘Oh I just love this work but he’s missing something, which is that the world of work and the world of the public is already gendered’. It was not a factor or something added onto a class analysis, but it informed the very way in which we conceptualise the working class subject. Further, what Scott proposed was that gender operates through a wide number of fields as an active and consequential presupposition. Gender doesn’t just describe gender identity, as many people now assume. An entire public world might be gendered in the sense that it’s structured by certain masculine values or presumptions that are not always marked. What, for instance, is the gendering of the public sphere? Is the public sphere presumptively masculine and, if so, how we can read that? Even now, with the war in Ukraine, we don’t see much commentary on the gendering of the war, but it’s very much there. There is a form of masculinism at stake for Putin, but also for Zelenskyy whose t-shirt and appearance re-enforced a form of heroic masculinity—the fighting man. How many women can assume that position? What does it mean that this heightened militarism and even the resistance some of us support, relies on certain ideas of embodiment: able-bodied, willing to fight, capable of fighting, of the age in which you could fight, and masculinised?—with an occasional woman with the shotgun looking like a Kurdish fighter who we’re supposed to appreciate for the feminism she represents. The recent reports on sexual violence at the border or in family homes in Ukraine are just absolutely appalling, which is why the recognition of gender-based violence is so important for legal and public policy. I think we do need to think about gendered practices, gendered spheres of life and not just gendered persons. CJLPA : On the topic of gender, you’re most well-known for your ground-breaking theory JB : of gender performativity which was introduced most famously in your book Gender Trouble in 1990. On the note of the Ukrainian war, as well as the gendered reporting of the war and the gendered war itself, if gender is performative, who or what dictates the script in the current era? JB : In general, you can try to dictate a script—people do try, and sometimes scripts seem to be pretty strongly dictated when strong directors are at work, and actors are willing to acquiesce to their will. In such cases, scripts are fixed in place—but I think in fact there’s some contingency and unexpected turns in scripts that, if I follow your metaphor, are a bit more improvisational, sometimes departing from the script, or sometimes shredding the script. For me, there may be gender norms that prescribe what we should do, but even in the act of apparent compliance, we can be departing from the norm, even contesting its power. Obviously, there is a hyper-gendering of issues going on right now, not only in the war, but in a wide range of political efforts to deny reproductive freedom, LGBTQI+ rights, and debunk gender studies. Obviously, Putin and his version of masculinity has been commented upon at length, but I would underscore the public and shameless form in which he displays his willingness to destroy and to subject the most vulnerable people to violence. This is a sign of the kind of masculinity he values, one measured by the shameless infliction of harm. It is important to remember that there is no one masculinity, no single norm that organises the appearance or operation of masculinity. With Putin, we see a lethal version of masculinity at work. For instance, Masha Gessen has written about Putin’s masculinity in a way that I think is pretty interesting, and then of course in the Boston Review, just recently, there was an important statement by the Director of Gender Studies at Kharkiv National University, her name is Irina Zherebkina, and she’s a translator who, in fact, translated some of my work and some of the major work of feminist theory from across the globe. She understands the attack on gender and feminism as a key component of this war. Putin himself named ‘gender’ as a potential threat to the spiritual values of Russia in his policy statement on national security in 2015. CJLPA : Does performativity extend to other forms of identity? Whether that be race, disability, class, religious association, to what extent is identity in these instances on the other hand performative? JB : I said gender was performative over 30 years ago and I’m not sure I would hold to the exact same position I put forward then. It’s interesting the positions you write about when you’re unemployed. I did have a temporary position at the time, but I think that when we say gender is performative, we don’t mean that it’s only performative or that’s the only thing we can say about gender. It just means that people generally have to establish their gender within a grid of legibility, or that gender is established through various means. Though the ways in which we do in a daily way unconsciously or consciously assert gender or establish it, suggests that it needs to be asserted or established, it could go another way. And it is never fully or exclusively in our power to do that establishing. There’s no natural necessity about the ways in which gender becomes available to us, which is not to say that nature plays no role or that volition is all that matters. Gender is established and re-established through various powers, and always through processes articulated in time and space. Performativity doesn’t mean it’s all fake or false or artificial, and it surely doesn’t mean that it’s fully chosen in the sense that ‘Oh, I can choose whatever I want to be today’. It means only that gender is negotiated for us before we have any agency, and we come to negotiate it in quotidian ways in time. It is not established once and for all through sex assignment, and even sex assignment cannot stabilise sex through time. As I have moved through the world, there were times where I would walk into a bathroom or locker room, because I’m a swimmer, and be told that I’m in the wrong one and I’m pretty sure I’m in the right one. Once in China I was not able to speak the language, so I literally took my shirt off so that they could see, then they were, ‘Ohhh ok, ok, ok, ok!’ But like, what did I have to do? It wasn’t immediately clear. I mean there’s some ways in which cultural legibility works this way. Obviously not just about myself, but a range of people who deal with how they are perceived, what they have to make clear time and again in order to be known or recognised or even to pass into or out of regulated spaces. This happens differently with disability. Sometimes you have to let it be known. It doesn’t mean that your disability is a performative effect in the sense that it has no substantial reality; on the contrary, the problem is that if you seek to make yourself known, legible, recognisable, or seek to evade forms of recognition that imply criminalisation or pathologisation, then a kind of orchestration of the body becomes important, a way of making plain or public one’s bodily situation, quite regardless of whether or not one has a visible disability. There are, of course, many misunderstandings about performativity because it draws on both linguistic and theatrical traditions. In my view, it cannot be reduced to either domain, but rather names their interconnection, the site of their overlapping. For those who take performativity to be a theatrical mask that you put it on and take it off at will, performativity is a bit of entertaining fakery. Although masks, as we know, can have much more important meanings in dance, religion, and rituals. The example of drag that I offered in Gender Trouble became inadvertently exemplary for some readers of what performativity means. A number of women do get up and ‘put on their face’ and ‘fix their eyes’ and ‘do their hair’. These are just daily ways of crafting, inspired by both anxiety and, presumably, gender idealisations of various kinds. One might not describe such activities as a gendered kind of crafting, but it is a gendered kind of crafting, just as some sorts of activities seek to de-constitute those norms on purpose, or engage in another way of doing gender that doesn’t really work with masculine and feminine, either exposing a gendered spectrum, or a position outside the spectrum as it has been established. At the same time, and equally importantly, we’re done to by norms, by the unconscious, by others; we’re undone and redone by norms that work on us in ways that we can neither track nor control. We’re not just crafting ourselves in some radically agentic way; we are struggling with the ways in which we were treated and situated and formed over time, and that’s why it’s a struggle rather than an arbitrary expression of personal liberty. On the issue of race people have thought, ‘Oh well does Butler think that somebody could just say: ‘Well I’m Black’, when they’re not Black, when they have no Black formation, they have no Black legacy, they don’t come from Black parents or a Black world, they just have decided that they feel Black and they want to say they’re Black. Or they want a fellowship, so they falsely claim they’re Black, or they want to belong to a certain community and deceive people in order to achieve that sense of belonging. We’ve seen people who have lied, who have fraudulently appropriated racial or cultural identities, including indigenous ones, and these are all unethical actions. That is not performativity—that is lying. For me, performativity is actually a way of challenging restrictive and oppressive norms, but cultural appropriation is an example of racial oppression. Sometimes one has to make plain what one’s background is, the community from which one comes, the sexuality that is one’s own, or the gender that represents one’s lived reality. In those cases, performativity does not create that history or sexuality or lived reality, but it does make it legible, and sometimes for the first time, or against a way of saying and naming that leaves one effaced and erased. Performativity seeks to break through that erasure, but cultural appropriation is a form of erasure. Obviously, we have to be able to understand the situations in which performativity is operating in order to evaluate its effects. We can, for instance, ask how racial norms consolidate racism through forms of performativity, in which case performativity is a way of analysing a social issue, but not, by itself, something to be celebrated or condemned. It helps us to see how reality is construed, how intelligibility is established and contested, and we might sometimes like that contestation, and sometimes not. Performativity is not its own frame of reference. CJLPA : On the note of the changing terms of reality—you also briefly mentioned your example of Drag queens—what role, if it plays a role at all, does art have to play in performativity? JB : At the time that I used the drag example, I wanted to show that what counts as feminine and masculine can change, and that some traits we take as natural or fixed are, in fact, constituted over time by virtue of practices and repeated styles. But the example was taken to be exemplary of performativity itself, and that produced some consequences I neither anticipated nor wanted. For instance, some drag performers do, in fact, clothe themselves and act in certain ways under very specific conditions, but then ‘return’ to their truer genders in everyday life. This is, of course, not the same as what happens with trans people who are living their gender reality in every aspect of their lives. The idea of a punctual, discrete, and transitory performance was reinforced by the example of drag, but, in fact, gender as lived is another matter. I did not clearly grasp the implications of that example when I wrote about it nearly 35 years ago, but I see it better now. For those who quite legitimately want the reality of their genders recognised, or who prefer to use the language of sex to describe their trans lives, it is important to underscore that sex can be reassigned, that genders can change, and that the sex or gender arrived at by trans people designated their reality. I believe that performativity can still describe that reality, since the language and recognition is achieved by various means. I would now say that gender is the apparatus through which sex is assigned, established, and re-assigned and re-established. Gender is not the cultural form that natural sex assumed, but the process through which that assumption and establishment takes place. In this sense, it is not an identity, but the process through which identity is established. Similarly, performativity is not fluff or artifice, but rather the name for the very consequential process by which subjects are formed and come to identify themselves, establish their reality, and demand recognition. Art is enormously important for me. It was what I missed most, aside from friends, during the pandemic. It has the power to embrace and fix my mind, claim my attention and transform me. CJLPA : Is it a vessel for power or is it more a platform for self-expression? JB : If we are speaking about art or artistic practice, or art objects, we have approached a complex problem. Personally, I love going to museums even though I understand the critique of museums and love both public art and performance. I am also drawn to abstraction, even though I understand the critique of abstraction from several quarters. I’m very often interested in when a painting is finished, in what year, and seek to understand how history is refracted in non-representational modes. That doesn’t mean I don’t love realism, but I do wonder about the ways in which it has been written about. Lukacs interests me, for instance, but his writing also maddens me. Is it realistic to imagine that society gives itself to us as a totality? I suppose I am always somewhat ambivalent in museums. I might want to burrow myself within the frame in order to take in what that painting is asking of me, but it’s very hard as I move around a museum structure not to be saturated with capitalism, with the hurting feet of the guards, the cost of membership, and, of course, the cost of the artworks themselves. One is, after all, roaming around a market. I remember one day I had fully enjoyed a day inside the Whitney in NYC only to exit and find people I knew protesting members of the museum’s board, Warren Kanders, who eventually resigned because his company was selling tear gas used against protestors! How do I allow myself that absorption in painting, that sense of renewal and reconfiguration, that can happen within a frame, or within a play, or even in a performance piece that is provisional without thinking about the infrastructure, who’s paying, who’s profiting? I suppose I am influenced by Brecht who cautioned not only against identification, but absorption as well. I’m very interested in performance studies, and luckily taught in the field a couple of times at UC Berkeley with my colleague, Shannon Jackson, so seeing what happens when performance moves off the proscenium and into the street or various public spaces is important to me. Performance can become part of a strike against museums or other corporate entities, and that counterpoint is very powerful. In general, there is a performance dimension to strikes and protests that is very important for the articulation of political rage but also political sorrow. We see a lot of improvisational art and performance in the Movement for Black Lives, as Patrisse Cullors has shown. I am also aware of the power of plays that were written in classical Athens but have enormous power in contemporary life: Esperanza Spalding’s rendition of Iphigenia is one. But Antigone remains ever-generative; Antigone was played under dictatorial Argentina and then post-dictatorial Argentina. Antigone was played in Colombia, in Ecuador. Colombians in exile performed the play in Mexico City; it was performed in Palestine on a rubble of rocks that used to be somebody’s home, changed into a platform. The Jenin theatre project on which I served on the international board, was all about turning political rage and sorrow into art, especially photography and performance. I think for me, some of the most emotionally powerful and life-changing, but also conceptual-framework-changing events have happened through powerful, powerful performances and powerful art, including poetry. We could document, as well, the way photography has changed our experience of illness, of war, of science, of the virus in ways that have enormous social and political implications. CJLPA : You say how walking through a museum and seeing certain frames, paintings, sculptures, whatever they may be, emotionally affects you, and that art has both positive and negative aspects. I can also see how that could be a source of anxiety for many people, not being able to, for example, walk through the museums and enjoy the art available without the knowledge of how it was retrieved—take, for example, the current scandal with the British Museum and how they retrieve certain historical items. How do we manage that anxiety? JB : I followed Christopher Hitchens’ writings on the Elgin marbles scandal, and I thought it was among the better things he did, really instigating that campaign to return the marbles to Athens. I’ve seen the partial display of those marbles in Athens as well as in the UK, and I’ve deliberately gone between the two sites to see what was stolen and how it was presented by the British Museum. I won’t not go see stolen art, but then part of looking involves seeing how the stealing is framed, and how the frame effaces the crime. Something similar happened in France after the opening of the Musée du quai Branly and art stolen from Africa was identified. After being petitioned by Felwine Sarr from Senegal, Macron agreed to return the art to Africa. Reparations of this kind are crucial to exposing the continuing colonial legacies at work in the art world, including legacies of military destruction and pillage. The repatriation of artworks is a counter-imperialist move that we need to examine and continue to think about, including the way that those legacies have contoured the canon of art history itself, as Banu Karaca has demonstrated. The history of looting is also something we look away from when we become absorbed in the work of art, but maybe we can somehow have both. There are aspects of capitalism, imperialism, and colonialism that enter into my ‘seeing’ when I go to museums, but it does not fully preclude becoming claimed by a work of art. It is that seeing moves from one dimension to another, and that the one is always hovering in the background of the other. I think we can allow ourselves that absorption, but also try to figure out what the institutional and labour conditions for this beautiful encounter I’m having are. It doesn’t destroy it for me, but it needs to be part of what I take in when I go. CJLPA : I’m particularly interested in your notion of grievability and your work in the field of necropolitics more generally, and I wanted to ask you a more topical question on this basis. I was wondering whether grievability could be applied to describe the differences we see in the treatment of war victims. Are there differences in the grievability of war victims, for example, in Ukraine compared to Palestinian citizens, or Syrian refugees? And if there is, how do we minimise this? JB : I think there’s no way to think about war without thinking about those who are fleeing war, and that means that we’re thinking about borders and detention practices. Wars are often about contesting or claiming borders, as we know. They can be ways of moving borders or breaking borders. But the border, wherever it is, is the place for the gathering of refugees and the treatment of refugees, the negotiation of alterity, citizenship, and rights of mobility, even rights of existence. Some people, following Michael Walzer, make a distinction between just and unjust war and, according to that framework, an unjust war is obviously being waged against the Ukrainian people (as of 2 June 2022). But is it right to say that the Ukrainians are waging a just war? Or is it better to say that they are engaged in a fully legitimate resistance to military aggression? Those kinds of debates centre on established nations, but let’s remember that nations get established through establishing territorial boundaries and regulating rights of passage. On the border with Poland, radical social inequality accompanies, and qualifies, the general admiration for Polish hospitality. Some refugees merit hospitality, but others clearly don’t. I’m reminded of Mahmood Mamdani’s book Good Muslim Bad Muslim where he argues that the Muslim who can assimilate well, the one who is well educated, who shares cultural or class behaviours and values with Europeans, including secular commitments, stands a chance of becoming the good one. But the one who holds out, affirming their community of belonging, participating in religious or cultural activities that deviate from dominant religious, cosmopolitan cultures, is usually deemed bad or suspect, not only because they adhere to certain religious practises, but because they are seen to adhere: they are publicly regarded as adhering to that community rather than assimilating to a national one, or they wear something that announces that they are in fact religious, or that they belong to a religious tradition and community. I recall Mamdani’s distinction because at the borders of Europe, we are witnessing mechanisms that distinguish between good and bad refugees. It’s been the case for some time that wealthy people can buy their way into citizenship in places like Spain, and that other European nations demand to see bank and investment accounts in deciding who can come in and who can stay. Even as Angela Merkel invited Syrians to Germany—and that was a great thing that she did—she discriminated against a number of North Africans at the border and did not open that same door to them. These are all examples of social inequality, but also decisions about whose lives are worthy of supporting and whose can be abandoned. For those who make those decisions according to national policies, they are all the time distinguishing between those lives that are legible, intelligible, valuable, and those that are clearly not. Even if they never say it to themselves, they are deciding whose lives are dispensable, can be tossed, or can be left to die at the border or drown at sea. For instance, in Honduras, people are living in conditions at borders that not only put them at extreme risk for COVID, but also, now, other diseases. They are living in unsanitary conditions, or without basic medical or health provisions. They are a population that is left to become ill, made increasingly susceptible to illness and to death by the lack of infrastructure provided. Maybe nobody is shooting them or bombing them, but some powers are letting them die. This is a form of slow violence, as Rob Nixon has said. That letting the population die in a way that many countries do—and I think Europe does this as well in its maritime restrictions on immigration over the Mediterranean—constitutes the second form of death-dealing that Foucault describes in Society Must Be Defended. The first might be understood as the deliberate decision of sovereign powers to declare war or sentence someone to death. Putin is emulating that form of sovereign power as we speak. But then there’s this ‘letting die’, which usually happens through policy or through neglect and dispensability. Neglect can be unthinking or it can be deliberate policy, as when Malta turns back leaky vessels filled with migrants. I think that by letting them die, we can call it necropolitical as Achille Mbembe has, I have no problem with that and I use that term myself, but sometimes those forms of death dealing are intertwined and I think we do see that in war. CJLPA : In light of that, should there be a criteria or international law in place so that countries, or specific countries, keep their borders open and welcome refugees with open arms? JB : I think there’s clear racism at the border of Poland, and the Polish government was clearly happier with Ukrainian refugees than with refugees coming from Afghanistan or Syria or North Africa. At work is both racial and religious discrimination. It’s also part of this assimilationist logic that says, ‘Oh you can come to a European country, but you must assimilate to this culture, or be regarded in advance as capable of that assimilation’. Why does anyone make a demand of that sort? Why can’t anyone come and actually change the country, change and enrich the culture of the country? Inviting migrants in implies agreeing to be transformed by new members of the society and, yes, becoming a different country. Yes! Allow the country to evolve into a more international, transnational region, that’s actually enormously hopeful. Multilingualism, that’s no less than fabulous, especially when educational and cultural institutions provide for that, and support that vision. So, although we surely need firmer anti-discrimination laws at the border, that only goes part of the way toward realising the new vision of society that is required. We also need to strengthen international covenants to stipulate that all stateless people have the right to belong somewhere, and that it is the obligation of every state to admit people from whatever origin or location for asylum procedures and to give their petitions fair, transparent, and comprehensive reviews on a non-discriminatory basis. Also, it will be imperative to rethink the state not just as a sovereign entity that defends its borders through military means and hyper surveillance but considers its borders as a portal and a threshold. The border should be rethought as portal and threshold, the site of translation, exchange, and movement, and the state should be rethought as a set of dynamic relations with other territories, regions, and states. It should be defined by that relationality rather than by its sovereign defensive position. CJLPA : What advice would you give to aspiring researchers, students of inequality, or activists? JB : I would say that if you’re a researcher in a university, make sure you do not stay fully enclosed within the university, that you don’t treat the university walls as protection and enclosure. You actually need to insist that those walls become porous and that the communities around you, the broader world, enter the university and help to decide the purpose and plan of research. I think that academics can become very self-referential within the university, and I believe some of the anti-intellectualism on the right comes from not really understanding what we do in universities and why we do it. I think there’s also anti-intellectualism on the left or on the part of those who believe that the internet provides more knowledge than any possible classroom. I don’t know about this term, ‘scholar/activist’, I don’t know if I am that or not: sometimes I’m just a scholar, sometimes I’m just an activist, and sometimes I’m blending, so I don’t really know how to reflect upon that distinction. But I think learning how to go out into the world through other platforms and making our knowledge known, and explaining its value, and handling the challenges to it in various kinds of venues, whether it’s online or in person, is a really important thing for academics to do. If we work in public universities, and the public cannot understand the value of what we do, they will seek to defund us, especially during austerity. Besides, it sharpens our thinking and it connects us with people, so we don’t become hermetically sealed within academic life and too neurotically self-referential. The academy is a place where neurosis can breed dangerously, so one needs to remember to stay connected to a larger world; it lifts one out of oneself and reminds us that we are not the centre of the world. I do think academics at the start of a career should be afforded the chance to wake up in the morning and feel passionate about what they do. Don’t pick the topic that you don’t love because you think it’ll get you somewhere professionally: No. Especially if you’re writing a dissertation or a first book, you must want to see that page when you wake up. You must be eager to get back to where you left off. But that means you have to find your desire and stay with it, and trust that it will yield something that’s valuable to you and to others. CJLPA : At this moment in time what is your current research interest, what are you working on, and what was your motivation behind this interest? JB : Well, I’m writing a book called Who’s Afraid of Gender? which is a critique of the anti-gender ideology movement. I’m trying to take apart their arguments while tracking the phantasms that haunt their thinking, which show the limits of argumentative discourse. Of course, it’s hard to argue with somebody who won’t read the work in question but nevertheless has a firm idea of what it is about. One is confronted with a highly phantasmatic side of anxiety and fear. One also has to think about how to address that. If you can’t work at the level of argumentation and evidence, how do you proceed? How do you address somebody’s massive anxiety and fear and hatred? So, that’s my problem and I’m trying to confront that question. And then I have a long-standing project on Kafka on the law—I guess we could have talked about that—where I am trying to understand, in general, how his writing relates to indefinite detention. Indefinite detention has become the most common carceral practice in the world, and Kafka had a developed premonition about how it works. In particular, he was interested in the status of legal systems when the sequence of a trial and punishment is reversed, that is to say, when one is found guilty first and then the trial and its deferment becomes an indefinitely extended form of punishment. So, I’m also interested in how Kafka thinks about the architecture of law because law is both a temporal and spatial problem in his work. When it takes architectural form, law comes to resemble prisons and their impasses. His literary writing collapses narrative into carceral space and its impasses. CJLPA : What kind of course is feminist philosophy currently taking? JB : I think there are several things going on. I think Black feminism has enormous influence not only in the US and UK, but throughout Europe, Africa, and Latin America. There’s a great deal of work being done by contemporary feminist philosophers on race and gender, but also prison abolition. We have to think about abolitionism as a form of Black feminist philosophy. There continues to be work being done in the philosophy of science relating to reproductive freedoms, personhood, the question of life, care, and the technologies of both reproduction and sex assignment. There is also a fair amount being done on feminist movement politics, especially the feminist strike, bringing forward the work of Rosa Luxemburg into contemporary feminist politics, and a great deal of reflection on both resistance and revolution. Many feminist philosophers are interested in how we think about desire and affect in politics. To answer that question, many feminist philosophers go back to Spinoza or bring Spinoza forward into the present to try to do that—I find those positions very interesting even though I cannot always go along. Decolonial feminism is important for philosophy and for several other fields, engaging feminist thinkers who have written extensively on colonisation such as Rita Segato and Françoise Vergès. CJLPA : Do you have any career memories or regrets that you have as a philosopher or as an activist? JB : I think that Gender Trouble was written when I was trying to secure a permanent job, and I think it was kind of trapped in the French discourse of the time in the US. It was written in a more difficult style than it should have been. Despite its difficulty, it remains popular and people still read it. Perhaps I could have shown more clearly how I was influenced by social movements, especially AIDS activism and LGBTQI emergent movements, but also the history of feminist thought, including Black feminist thought and poetry. I wish that I could have written that book for a broader audience and perhaps with a broader citational base, but I somehow imagined that it would not have much of a life. Of course, I have many regrets in my career, and there were times when I responded to a plea from a friend that ended up putting me in a morally compromised position. I cannot undo that kind of mistake, but I can now live my life differently. One has to be humble in relation to one’s errors, affirm the errancy, as it were, to become a more attentive and responsible person. On the other hand, I have been gifted by the connections that my work has made among readers and translators, the latter group being some of the most important intellectuals I have met. They have introduced my words, and me, to worlds that I would have never understood or known about. So, basically, I feel gratitude. So, I’m much more connected to different parts of the world by virtue of very brilliant translators who spent time with me and who ultimately became my intellectual colleagues and friends. Translation is difficult, frustrating, and transformative, like life. This interview was conducted by Teresa Turkheimer, an MSc student in European and International Public Policy at the London School of Economics and Political Science. Her main interest lies in understanding the causes and effects of inequalities that characterise the labour market today, and is hoping to pursue a career in research in the coming years.

A case for the enhanced pre-sentence report in England and Wales, exploring how the Canadian approach to racially disproportionate sentencing outcomes could be fashioned in the UK In 2021, I was one of the lead contributors to a guide[1] for lawyers committed to ensuring Black lives matter in the Criminal Justice System. In the guide, I highlighted the case of R. v. Morris [2] as a way in which lawyers could use the law creatively to deal with racially discriminatory outcomes in the Criminal Justice System. I still believe, however, that there are many under-theorised approaches from R v Morris [3] and international human rights laws and principles that can be of real benefit to ensuring that sentencing hearings produce racially equitable outcomes. This piece will explore the ways lawyers can practically use this case and international human rights law and principles to do just that. The case of R. v. Morris [4] sets precedent as to how sentencing judges should account for systemic anti-Black racism when sentencing Black people, including (but not limited to) the use of ‘enhanced pre-sentence reports’ that document the impacts of anti-Black racism . Canada, unlike the UK, has a history of recognising the unique conditions of Black and Indigenous persons in their sentencing processes and decision-making. The criminal law code in Canada has recognised that there are cases where, in order to determine a fit and proportionate sentence, consideration must be given to an individual’s systemic and social circumstances. In particular, in June 1995, Parliament passed Bill C-41, a bill amending the Criminal Code with respect to sentencing. The new law came into force in 1996 and contained Criminal Code Section 718.2(e), which was intended to ameliorate the high rates of incarceration of Indigenous people. Section 718.2 reads: ‘A court that imposes a sentence shall also take into consideration the following principles: (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders’. These circumstances often extend beyond the person who is being sentenced to include factors such as systemic discrimination and historical injustice. This has been recognised by the criminal courts[5], particularly in the case of Indigenous offenders who have a distinct history of colonial violence endured by Indigenous peoples and has extended to people of African descent. This reparative approach taken to address the ongoing harms of racism, slavery, and colonisation allows judges to consider social contexts in sentencing decisions. This approach has also allowed for new racial justice mechanisms to be further embedded into the Canadian legal system through the recent advent and use of Impact of Race and Culture Assessments (IRCAs)[6] in sentencing people of African descent. These IRCAs were first introduced in R v ‘X’ .[7] These reports provide the court with a detailed understanding of the effects of systemic anti-Black racism on people of African descent and how the experience of anti-Black racism has informed the circumstances of the offence, the offender, and how it informs the offender’s experience of the criminal justice system. These reports also address, inter alia, anti-Black racism and aim to promote tailored and proportionate sentences for Black people. They strive to construct a sentencing methodology that balances the significance of the twin principles of individual responsibility and proportionality, while incorporating the cultural legacies and historical oppressions and their role in the sentencing of Black people. In the case of R v Morris ,[8] Justice Nakatsuru considered the impact of anti-Black racism on Mr. Morris’s life and his social history. The defence presented an IRCA to the court and requested that the authors of this report outline and analyse the research relating to the existence and impact of anti-Black racism in Canadian society in general and the Toronto region in particular. The facts of the case In 2014, Kevin Morris, a 22-year-old Black man, was detained, chased, and injured by police officers PC Keefer and DC Moorcroft in a parking lot. The police officers did so as part of investigating a nearby home invasion, but neither Mr. Morris nor the three other young Black men Mr. Morris was with were involved in the invasion. In the aftermath, a jury found Mr. Morris guilty of charges relating to the possession of an unauthorised gun. The Outcome At the sentencing hearing, the Crown requested Mr. Morris a sentence of four to four and a half years. Mr. Morris’s defence lawyers requested a sentence of one year. Many of the previous sentences handed down for gun offences relating to criminal activity had usually been at least three years, while other cases for gun offences had been from one to two years. Upon considering the anti-Black racism that applied on a systemic and interpersonal level to Mr. Morris, Justice Nakatsuru sentenced Mr. Morris to 15 months. The sentence was then reduced to one year after taking into account the police officers’ unlawful infringement on the Charter of Rights and Freedoms .[9] In passing down the sentence, the judge noted the following: In the final analysis, what makes this sentencing different from other cases where leniency was not given is that I have been given a wealth of information to sentence you, information that can be used to take further steps to deal with the over-incarceration of Black people in this country. This judgement was recently appealed in February 2021 (judgement handed down in October 2021) by the Crown due to the length of the sentence given by the judge. The Court of Appeal allowed the appeal in order to increase the sentence but stated that the approach from the Judge in factoring anti-blackness was the correct one to take. The decision to increase the sentence has been rightfully condemned by the interveners in the case—The Black Legal Action Centre (BLAC)—[10]who state they are disappointed by the decision in the appeal of R. v. Morris , explaining that the Court failed to take a strong stance to ensure that every sentencing judge across the province meaningfully considers anti-Black racism in a consistent way when sentencing a Black people. Robyn Maynard, in Policing Black Lives , notes that ‘Black existence in public space is itself seen as criminal and thus subject to scrutiny, surveillance, frequent interruption and police intervention’.[11] This is of particular importance as Black communities in the UK remain over-policed through racially disproportionate stop and search,[12] which allows for Black communities to be funnelled through the criminal justice system. Black communities in the UK only make up 3% of the population but represent 13% of the adult prison population.[13] Currently, 59% of children on remand are Black.[14] The Lammy Review as far back 2017 highlighted the anti-Blackness within the judiciary when it comes to the disproportionate sentencing of Black males.[15] International Human Rights Law Overview The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),[16] ratified by the UK on 7 March 1969, establishes the obligations of State parties to respect and ensure racial equality and the right to be free from racial discrimination. Several other human rights treaties also contain prohibitions on racial discrimination and other forms of discrimination, including the International Covenant on Civil and Political Rights (ICCPR),[17] to which the UK acceded in 1976. Under international human rights law, anti-Blackness is an infringement of the rights of people of African descent. Due to this, there must be scope to make arguments based on international human rights law when dealing with anti-Blackness in the courtroom. The ICERD[18] was created to deal specifically with racial discrimination within a specific human rights mechanism. The treaty in and of itself can be relied upon by countries where the ICERD treaty was ratified to make submissions in respect to failures to comply with international human rights obligations. The UK may not invoke ‘the provisions of its internal law as justification for its failure to perform a treaty’. The UK’s wide ranging international human rights law commitments include an obligation to ensure racial equality and eliminate racial discrimination. This obligation not only arises from its commitments under the ICERD, but also from its other human rights treaty commitments; nearly every human rights treaty contains a provision on non-discrimination. Article 2.1 of the ICCPR makes it clear that the rights recognized in the Covenant are to be recognised without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.[19] Article 2.2 of the ICESR outlines similar obligations with regard to economic, social, and cultural rights.[20] The Committee on the Elimination of All Forms of Racial Discrimination (CERD) also produces General Recommendations that offer analysis of relevant provisions and practices of the U.N. treaty bodies. Since 1972, the CERD has issued general recommendations in order to provide guidance to States parties in understanding the provisions of the Convention and thereby assisting them in implementing the Convention fully based on their reporting to the Committee. International Human Rights Law: CERD Recommendation No. 36 General recommendation No. 36 (2020) on preventing and combating racial profiling by law enforcement officials[21] is an extensive document the UK must use to further understand how it can comply with its international human rights obligations. Paragraph 24 of General Recommendation No. 36[22] states that: Under article 6 of the Convention, States parties have an obligation to assure to everyone within their jurisdiction effective protection against any acts of racial discrimination. Accordingly, States parties must take preventive measures in order to ensure that public authorities and public institutions do not engage in practices of racial profiling. Article 6 also requires States parties to ensure to everyone within their jurisdiction effective remedies against any act of racial discrimination. States parties are obliged to ensure that their domestic legal order contains adequate and effective mechanisms through which to assert that racial profiling has taken place and to bring such a practice to an end. States parties must furthermore guarantee the right to seek just and adequate reparation or satisfaction for damage suffered as a result of racial discrimination in the form of racial profiling . The General Recommendation makes plain that racial profiling is in violation of the prohibition of racial discrimination. It also outlines how racial profiling is committed through certain official patterns and activities, such as arbitrary stops, searches, identity checks, investigations, and arrests. General Recommendation No. 36[23] establishes that racial profiling runs contrary to non-discrimination and equality before the law as foundational principles of international human rights law, as well as to the ‘very idea of the Convention’. The UN Special Rapporteur on Racism also notes that several international human rights mechanisms have concluded that racial profiling is both a manifestation of systemic racism and a contributor to the perpetuation of societal racial stereotypes, prejudice, and bias. The CERD’s General Recommendation No. 36[24] conceptualises racial profiling as both an individual and a structural violation. The CERD found that racial profiling and broader societal racism, including hate speech, are closely interrelated, in that stereotyping and hate speech can lead to law enforcement officers engaging in racial profiling and profiling can in turn increase stigmatization and promulgation of ethnic stereotypes. International Human Rights Law: CERD Recommendation No. 34 General recommendation No. 34[25] adopted by the Committee concerns Racial discrimination against people of African descent. It requires that ‘people of African descent shall enjoy all human rights and fundamental freedoms in accordance with international standards, in conditions of equality and without any discrimination’.[26] Paragraph 15 notes that States should ‘strengthen existing institutions or create specialised institutions to promote respect for the equal human rights of people of African descent’.[27] What could racial justice lawyering look like under current sentencing guidelines in the UK, and how can lawyers use R v Morris to inform mitigation arguments and approaches to Pre-Sentence reports? Within the sentencing principles that currently exist, I believe that there is scope for lawyers to use the law and sentencing guidelines creatively to build a framework of analysis that can begin to address the issue of disproportionate imprisonment within Black communities in the UK. For us to do this, lawyers must understand that the law is not neutral. Critical legal theorists have expanded on this by explaining that the law is the mechanism for legitimising the existing hierarchy of social relations and thus, crystallising existing patterns of domination. Racial justice in the courts, therefore, requires the law to be decentralised, moving away from the perception that all charged persons before the court are white and male. Instead, the courts allow for an equitable approach that ensures fairer outcomes for racialised persons. In the case of R v Jackson 2018 ,[28] the sentencing judge Nakatsuru took such an approach. See paragraph 86: Taking judicial notice of the historical and systemic injustices committed against African Canadians and African Canadian offenders is preferable to a strict adherence to the traditional rules of evidence which will only serve to advantage the status quo. The offender should not be burdened with the requirement to bring such evidence, usually in the form of expert evidence, to their sentencing when these social and historical facts are beyond reasonable dispute. Current sentencing guidelines The sentencing guidelines have sections within them that can be used to expand upon the history and legacies of Anti-Blackness on defendants at sentencing. The Sentencing Council’s Overarching Guideline on Sentencing Children and Young People notes at paragraph 1.18 that Black and minority ethnic children are over-represented in the youth justice system and states that decisions about the welfare of a child must consider the particular factors that arise in the case of Black and minority ethnic children.[29] The Sentencing Council has also taken recent measures in the guidelines for possession of firearms and possession with intent to supply drugs, which can aid in drawing sentencers’ attention to evidence of racialised sentencing disparities. [30] The approaches of the Sentencing Council in actively reminding sentencers during the sentencing exercise to be aware of the racial disparity can be seen as a measure that is aligning with international human rights law. Particularly, in respect to ICERD Article 2, Para 1 that requires States Parties to condemn racial discrimination and to undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: 1(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; 1(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists. Lawyers can also remind judges of their role in fighting racial discrimination and disparity with the criminal justice system and their obligations under the Equal Treatment Bench Book, asking the court to take into consideration their client’s personal and cultural experiences as mitigating factors. In the case of R v Jackson , at paragraph 107, the sentencing judge Nakatsuru noted that ‘[o]ne way in which this information (history of anti-Blackness within society) can be used is to ensure that the contextual circumstances regarding the lived experiences of African Canadians are properly taken into account when applying the principles of sentencing’.[31] As judge Louis LeBel said in R v Ipeelee at paragraph 67: [J]udges can ensure that systemic factors do not led inadvertently to discrimination in sentencing. Professor Quigley aptly describes how this occurs: ‘Socioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political, and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination’.[Citation omitted in original.] Sentencing judges, as front-line workers in the criminal justice system, are in the best position to re-evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination.[32] Another way that lawyers can ensure that the history of racial discrimination is highlighted to the court is through preparing a sentencing note that sets out the issues and data on the systemic discrimination experienced by Black people and actively, as the judge in the above case has shown, warning the court of the risks of its decision in contributing to structural and institutional racism. The Lammy Review found a clear and direct association between being Black and the higher likelihood of receiving a custodial sentence, with Black people 53% more likely to be sent to prison for an indictable offence at the Crown Court, even when factoring in higher not-guilty plea rates. I did this in a recent youth court case in which the mandatory minimum sentencing for knife possession applied and my client was spared custody. I also did this for a hearing I had for a young Black defendant who was being sentenced at the Crown Court. I mentioned in both written and oral submissions R v Morris [33] as best international practice and invited the court to use this approach to factor in my client’s experiences of anti-Black racism, which meant he presided more often before the courts. I further included points from the ICERD and its general recommendations mentioned above, The Lammy Review and Baroness Casey Review in this sentencing note. The judge agreed with my approach and took it into account as mitigation to reduce the sentence. Ensuring the Pre-Sentence report covers the personal and cultural history of the Defendant In England and Wales, when a pre-sentence report is provided to the court, only the discussions provided to the probation officer about the defendant are included in the report. an inspection of Race Equality in Probation [34] found that the quality of PSRs prepared in cases of Black, Asian and Minority Ethnic service users was ‘insufficient in too many cases’ and that not enough attention was paid to diversity. Inspectors concluded that ‘[p]oorer quality reports that fail to consider all relevant factors run the risk of service users receiving more punitive sentences’.[35] Lawyers must make an effort to ensure their client feels comfortable to discuss any issues of anti-Black racism they have faced with the probation officer so they can include this in the report. Lawyers should have discussions with their clients before sentencing about any experiences of racial injustice, whilst remaining aware that the experiences may be both direct and indirect. In the case of it being indirect, lawyers will need to be well versed in anti-racism research in order to highlight this. Lawyers, after confirming with their client, can also discuss with probation the need to ensure they have taken into account the issues noted in the Lammy Review and the recent Justice report on the overall lived experiences of racialised clients.[37] They should simultaneously highlight the concerns raised in an inspection of Race Equality in Probation HMIP 2021 report on the quality of PSRs prepared in cases of Black, Asian and Minority Ethnic service users. This is of particular importance, as the UK’s sentencing Council’s overarching principles notes that it is for the sentencing court to determine how much weight should be assigned to the aggravating and mitigating factors, taking into account all of the circumstances of the offence and the offender . In order for the court to have all information about the offender and offence, the Court should be provided with international human rights documents like General Recommendation 34 of CERD, that will show the legacy of anti-Blackness globally.[37] Advocates should, then, through oral or written submissions, explain how anti-Blackness has shaped the offender’s life experiences and has led to them being in contact with the criminal justice system. Using R v Morris as best international practice when discussing mitigation Lawyers should consider R v Morris [38] alongside international human rights law as a best practice guide when gathering evidence and drafting submissions that can be used to showcase how anti-Blackness and anti-Black racism directly affects their Black clients. R v Morris [39] can be used as a blueprint for ways they can approach bringing this evidence forward to the court during mitigation. They can also present the case directly to the courts as best international practice, noting to judges that that whilst this does not yet have direct precedent in domestic courts, it nonetheless provides the courts with the best practice from an international human rights law approach when dealing with the impact of anti-Black racism on their clients offending, their contact with the criminal justice system and their wider life experiences. Ife Thompson Ife Thompson is a distinguished Movement Lawyer and UN Fellow, specialising in criminal defence, family law, and actions against police misconduct. Her work often intersects with cases involving racial and linguistic injustice, and she employs innovative legal strategies, drawing from UN International Human Rights Law and community-based issues to actively challenge these matters within her criminal defence practice. She has also founded two civil society organisations to further these pursuits. The first is BLAM UK: an award-winning Non-profit that provides educational, advocacy and well-being support for Black people living in Britain. The second is Black Protest Legal Support UK, a hub of UK-based Lawyers willing to provide Pro-bono support and legal observing at BLM and racialised protests. [1] Howard League for Penal Reform, ‘Making Black lives matter in the criminal justice system: A guide for antiracist lawyers’ (2021) < https://howardleague.org/wp-content/uploads/2021/09/A-guide-for-antiracist-lawyers-1.pdf > accessed 9 October 2023. [2] R v Morris [2018] ONSC 5186. [3] ibid. [4] ibid. [5] R. v. ‘X’ [2014] NSPC 95. [6] ibid. [7] ibid. [8] ibid. [9] Canadian Charter of Rights and Freedoms, Constitution Act 1882. [10] Ammar, ‘BLAC responds to Ontario Court of Appeal decision in R. v. Morris ’ (Black Legal Action Centre, 8 October 2021) < https://www.blacklegalactioncentre.ca/blac-responds-to-court-of-appeal-for-ontarios-decision-in-r-v-morris/ > accessed 9 October 2023. [11] Robyn Maynard, Policing Black Lives: State Violence in Canada (Fenwood Publishing Co Ltd 2017). [12] Vikram Dodd, ‘Black people nine times more likely to face stop and search than white people’ Guardian (London, 27 October 2020) < https://www.theguardian.com/uk-news/2020/oct/27/black-people-nine-times-more-likely-to-face-stop-and-search-than-white-people > accessed 9 October 2023. [13] Georgina Sturge, ‘UK prison population statistics’ ( Commons Library Publications, 8 September 2023). < https://researchbriefings.files.parliament.uk/documents/SN04334/SN04334.pdf > accessed 9 October 2023. [14] Penelope Gibbs, ‘Children imprisoned on remand – the stark reality of racial bias’ ( Transform Justice, 5 November 2021). < https://www.transformjustice.org.uk/news-insight/children-imprisoned-on-remand-the-stark-reality-of-racial-bias/ > accessed 9 October 2023. [15] Lammy Review, ‘The Lammy Review: final report’ ( gov.uk, 8 September 2017) < https://www.gov.uk/government/publications/lammy-review-final-report > accessed 9 October 2023. [16] International Convention on the Elimination of All Forms of Racial Discrimination, UN General Assembly resolution 2106 (XX) 21 December 1965. [17] International Covenant on Civil and Political Rights, UN General Assembly Resolution 2200A (XXI) 16 December 1966. [18] ibid. [19] ibid Article 2.1. [20] ibid Article 2.2. [21] General Recommendation No. 36 on preventing and combating racial profiling by law enforcement officials (2020). [22] ibid [24]. [23] ibid. [24] ibid. [25] General Recommendation No. 34 adopted by the Committee: Racial discrimination against people of African descent (2011). [26] ibid. [27] ibid [15]. [28] R v Jackson [2018] ONSC 2527 (CanLII) [86]. [29] Sentencing Council, ‘New Sentencing Guidelines’ ( Sentencing Council, 9 December 2020) [1.18]. < https://www.sentencingcouncil.org.uk/news/item/new-sentencing-guidelines-for-firearms-offences-published/ > accessed 9 October 2023. [30] Sentencing Council, ‘New sentencing guidelines for firearms offences published’ ( Sentencing Council, 9 December 2020) < https://www.sentencingcouncil.org.uk/news/item/new-sentencing-guidelines-for-firearms-offences-published/ > accessed 9 October 2023. [31] R v Jackson (n 28) [107]. [32] R v Ipeelee [2012] SCC 13 (CanLII) 1SCR 433 [67]. [33] ibid. [34] HMIP, ‘Race equality in probation: the experiences of black, Asian and minority ethnic probation service users and staff’ ( HMIP, 16 March 2021) < https://www.justiceinspectorates.gov.uk/hmiprobation/inspections/race-equality-in-probation >accessed 9 October 2023. [35] ibid [29]. [36] JUSTICE, ‘Tackling racial injustice: Children and the youth justice system’ ( JUSTICE, 25 February 2021) < https://justice.org.uk/our-work/criminal-justice-system/current-work-criminal-justice/tackling-racial-injustice/ > accessed 31 October 2023. [37] ibid. [38] ibid. [39] ibid.

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

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

Riad al-Turk was a political opposition leader, lawyer, and human rights activist from Homs, Syria. By many Syrians he is seen as a polarizing figure; often regarded as ‘The Old Man of the Syrian Opposition’. His 50-year long battle against the Syrian regime led to his imprisonment for 18 years; much of it spent in solitary confinement. He was placed in a cell the size of a small elevator, where he was subjected to various forms of physiological abuse. This interview was conducted on 12 August 2023; prior to the recent demonstrations in Sweida, Syria . On 1 January 2024, Riad sadly passed away. It is a true privilege for CJLPA to have conducted one of the final interviews with a man who remains for many Syrians a symbol of resistance, hope, and courage.   CJLPA : Good afternoon, Mr. Riad al-Turk. It is an honor to have the opportunity to interview you for The Cambridge Journal of Law, Politics, and Art.  You are an inspiring figure in your work defending the human rights of all Syrians around the world for the last few decades. Much of your life has been spent fighting the Syrian regime; having never backed down after all the obstacles you have faced. You have previously stated that your career as a lawyer was a secondary practice relative to your political career. Before delving into the political aspects of the Syrian conflict we would like to have some insight on the Syrian legal and justice system. Can you tell us a bit more about the Syrian justice system at the time you were a practicing lawyer?   Riad al-Turk : It is difficult to talk about a justice system in Syria. We can say that the concept of justice is absent in Syria, but that’s not what’s important. What is important is that Syrian society constantly aspires towards freedom; freedom from tyranny and from external pressures and interference, and most importantly hope is always there.   In my opinion, talking about laws in Syria is not the correct approach. In Syria there are no laws that prevail, are respected, or achieve equality and justice among citizens. This is a fantasy. You are faced with a tyrannical ruling family that does not need or adhere to any laws and does not wait to derive its legitimacy from its own people, but rather from foreign institutions. A good example comes following the death of the then dictator, Hafez Al Assad. People were looking forward to getting rid of a dictator, and later found themselves facing the process of passing power to his son, Bashar Al Assad, a person who was neither legally nor politically qualified. This was done under the auspices of US Secretary of State Madeleine Albright, who came to Damascus to congratulate Assad Jr. on the smooth transfer of power, granting him international legitimacy.   CJLPA :   What was the trial process like ? Are there any codified laws victims can point to for protection but which are simply not enforced in court, or do such laws not exist in the first place?   RT : Answering this question requires reconsidering the prevailing laws at the time, which did not provide guarantees for the protection of the accused, especially when the cases raised were cases against the regime. In other words, cases that were of a political nature, or involved in a political position that included direct criticism of the regime. Their old and well-known style is that there were those who sponsored the issue of talking about justice and law, where a certain character holds the position of a public prosecutor who charges the accused, and he is tried as guilty. Justice—in reality—is not available even to the judge. This is an important issue to address. If the independent judiciary were in charge of the trial process, it would be possible to talk about justice. We do not hope for or demand justice from such a regime. It’s an opponent. This is how I look at it.   CJLPA : You began your political career in 1944 by affiliating yourself with the Syrian Communist Party (Political Bureau)—which, interestingly, was opposed to the Soviet Union. Moreover, you were the Prime Secretary of the party from 1974. You have therefore experienced the political system in Syria prior and after the coup in 1963 and the Assad coup in November 1970. Since the Assad family has taken over Syria, the country has been running under conditions of a ‘state of emergency’. Can you please touch on how the coup changed the political environment for opposing parties to the Baath Party? RT : Previously, parties had an activity in the political arena. It is possible to talk about the existence of even partial exercise of some freedoms. The real question is: to what extent was this practice influential, and were there forces behind it that ensured its continuity?   In 1949, Hosni al-Zaim carried out a military coup and seized power. Then came many successive military coups. This paved the way for the arrival of Hafez al-Assad as a military figure holding power through the army, which al-Assad turned into an army of minorities. Then Hafez Al Assad began to suppress freedoms, silence people, arrest his opponents, and throw them into prisons, often without trials. In any case, this is a long period of time. There have been many developments. I prefer to leave this task to historians. This would be safer, if we wanted to take a critical look at the development of political life in Syria.   CJLPA : In 1980, you were arrested by the regime and held in political prisons for more than 20 years. You were put in solitary confinement for almost 18 years. Despite the various efforts used by the regime to silence you, they remained unsuccessful. We would like to begin by asking you about the environment of the cell you were placed in. To the best of your ability, how would you describe the prisons in Syria? RT : Talking about the conditions of my imprisonment is something that has been mentioned previously on more than one occasion. I was imprisoned for almost eighteen years without trial. I was placed in a solitary underground cell with no windows. We can say that it was about my height, it was the size of a small elevator.   I was completely isolated from the outside world. Books and newspapers were prohibited. I was only allowed to go to the toilet three times a day, during which I used the opportunity to search in the waste for the other prisoners’ scraps of paper and newspapers, perhaps finding the remains of a thrown away newspaper, carrying with it some news, or a valuable opportunity to read.   I was also isolated from other prisoners; not being allowed to mix with them. Visits were prohibited, so I had no news about my wife and two daughters. The first visit I was allowed was eleven years into my sentence. The total number of visits I received during my long imprisonment was three visits. I will not talk about physical torture as I did not go through all its types. As for psychological torture, it was about making me absent, abandoned, and forgotten, without any sense of responsibility on their part. After I fell seriously ill, my prison conditions were improved by placing a mattress on the cell floor and allowing some books to be read.   CJLPA : There are various crimes and torture mechanisms that are used in Syrian prisons, most famously, Sednaya Prison; nicknamed ‘The Human Slaughterhouse’. Having experienced almost two decades in prison, what are some of the torture and interrogation methods that are used by officers within in Syrian regime? RT : The most important description that a Syrian citizen can use to describe the Syrian prisons that passed through during the era of Assad family is as human slaughterhouses that subjected citizens to the ugliest types of systematic torture and humiliation. In these prisons, hundreds of thousands of victims were hidden and tortured. Time may make it difficult to reach the truth about their fate, but our duty is to continue making calls and exerting pressure on the regime to reveal the fate of those forcibly disappeared in its prisons, and to work to prosecute those responsible for these crimes against humanity.   CJLPA : When we speak about these human rights violations such as torture, do the current legal frameworks in place in Syria permit the government to conduct these horrific international crimes or is it a matter of these international crimes occurring behind closed doors? RT : Laws are usually enacted in order to protect the citizen and guarantee his rights and dignity in his country. As previously mentioned, talking about laws that are respected and implemented in Syria is a fantasy. There is no law that legislates the ruler and his agents to carry out these brutal crimes against his citizens. This is a criminal regime that must be tried, its crimes exposed, and held accountable, no matter how long it takes.   CJLPA : Most people that are subjected to the punishment you faced gave up and conformed to the regime’s wishes. How did you manage to maintain your mental health throughout those years and what advice would you give to anyone who has been through what you have been through?   RT : The answer to this question is thorny. In the face of the difficulties that confront us, we need a vision for life. That vision makes us people of principles. These principles determine our behavior and choices in life. They formulate our vision of the changes happening around us. From my side, and from my personal experience, the important aspect is to have an opinion. This opinion means that you are the owner of a cause and have the principled and moral position that gives a person strength.   This regime is rejected and I cannot reconcile or respond to it. I cannot give in to what it asks for under any circumstances. Withstanding in the face of such pressures is possible and impossible. This may be related to the severity of these pressures. Talking about what is possible and what is not is left to time. Time decides. I resisted time by keeping my mind occupied by drawing with some pebbles, and by reading newspaper clippings over and over again. As for the body, it was exhausted. Perhaps some of the exercises I was doing helped it withstand the harsh conditions of my time in prison.   CJLPA : One of the well-known atrocities that happened under Hafez Al Assad’s watch was the 1982 Hama massacre. The military force commanded by Rifaat Al Assad entered the city of Hama and conducted a series of bombings on buildings with civilian inhabitants. The government’s claimed justification for their ‘military operations’ was the need to eliminate the Muslim Brotherhood, disregarding any of the civilian casualties it took to get to that goal. This massacre could be seen as the beginning of a playbook that the Syrian government uses: blaming the bombing of opposition forces on the basis of them attacking terrorist strongholds. This strategy was also used by Bashar Al Assad in the 2011 uprisings. Can you please touch on the power of state propaganda in Syria and how they have taken advantage of religious extremism to paint themselves as the ‘good guys’ or the ‘best option in Syria’? RT : This is an illusion. They are unable to succeed in justifying their crimes against humanity. They bear responsibility for thousands of victims. Therefore, talking about the fate of these victims, seeking justice to prevail, and demanding that the fate of the disappeared be revealed is a humanitarian and legal issue that has no statute of limitations.   Searching for justifications for this regime is unacceptable, and it is not permissible to give legitimacy to the killers. The regime established itself as an authority. However, it is a condemned authority and their responsibility to these crimes remains. The prosecution of their crimes will continue until justice is achieved for them and their families.   CJLPA : Rifaat Al Assad, leader of the military force that committed the 1982 Hama massacre, was charged and convicted in France for ill-gotten gains. Additionally, there was a criminal investigation in Switzerland into his war crimes. Nonetheless, he still managed to escape back to Syria. Despite his dispute with Rifaat Al Assad, Bashar Al Assad opened the doors for his return to Syria without punishment. How do you feel about Bashar’s behavior in regard to his uncle?   RT : Rifaat Al Assad is convicted for his crimes, and is being prosecuted humanely and legally. As for Bashar, like the proverb says they are birds of a feather. I don’t think there is a big difference between the two. They are part of this family, and they are legally responsible for the massacres committed against the Syrian people.   CJLPA : Despite the death of Hafez Al Assad and his companions, why do you think it is important to share and remind young Syrians of the various crimes he committed?   RT : We must not stop raising the issue of the regime’s crimes against humanity, demanding its trial, justice, and condemnation of all those who support it and assist it in its survival, whether states or individuals.   CJLPA : The Syrian regime continuously used chemical weapons despite the various threats and sanctions from the international community. Now we see many Arab nations turning a blind eye to these atrocities by normalizing relations with the Syrian government. It seems that the current regime is not going to be leaving power any time soon. How do you feel about Syria’s return to the Arab League? RT: This trend to whitewash Bashar and re-legitimize this criminal regime is rejected and condemned by all standards. We must resist it by all means. International relations are governed by interests and variables. Our duty is always to continue reminding that major crimes have occurred and are occurring in Syria, for which the responsibility lies with the Assad family.   CJLPA : Why do you think the 2011 revolution failed to unify? RT : The moral impact of the Syrian revolution should not be underestimated. It may not have achieved all of its goals, but its impact remains and continues. What we see these days in parts of Syria is evidence of that. This is heartwarming. As for the opposition, it was one of the parties to the revolution. Perhaps circumstances and changes made it fail to achieve its goals in confronting tyranny.   CJLPA : The fight for freedom is not a new concept in the history of Syria. Figures like yourself have been fighting to get rid of the Assad family for around 60 years. Currently, there are millions of Syrians displaced worldwide. Do you believe that the next generation is capable of change, despite the presence of a large portion of the Syrian people outside Syria? RT :  I believe that our people, despite the massive displacement and migration, and despite the harsh living conditions of hunger, poverty, and disease, will not remain silent over injustice. It will rise from its ashes to rebuild itself again and fulfill the hopes and aspirations of Syrians towards freedom and decent living. We are required to change the old ways, to have a serious confrontation with ourselves, and to have a vision and a voice that unites Syrians. Reviewing, hearing the opinion of others, and researching the horizon of the past that we have experienced is necessary, and thus perhaps we can draw lessons so that the next youth who will have a great task will benefit from this experience. Syria will remain ours, and we need to have a voice that unites Syrians from north to south, and from east to west. This interview was conducted by Nour Kachi, Legal Researcher of Human Rights Volume of CJLPA 3. In addition to his role at CJLPA, Nour is currently working on qualifying as a lawyer in the US and UK.

Clive Stafford Smith is a British human rights lawyer who has spent his career working against the death penalty in the United States, along with representing more than 80 Guantanamo Bay detainees. He is also co-founder of Reprieve, an NGO that challenges human rights abuses in the courts of law around the world. This interview was conducted in two parts: the first written, the second recorded. Whilst the whole interview is reproduced below, the video includes only the second half. CJLPA : We are pleased to welcome you today, Mr Clive Stafford Smith, to interview with The Cambridge Journal of Law, Politics, and Art . You have devoted an inspiring career as a human rights defence lawyer, having represented over 300 prisoners facing the death penalty in the Southern United States. You are also co-founder of Reprieve, a human rights not-for-profit organization, and more recently a newer non-profit called 3D Centre. In addition to this, what we would like to focus on in our interview today is your work at Guantanamo Bay, where you volunteered your legal services in 2002 and have since helped secure the release of over 80 detainees.   You opened up your book Bad Men: Guantanamo Bay And The Secret Prisons  in a manner that I think truly sets the scene. Particularly, your imagery of an iguana at the US base in Cuba. Can you briefly explain the difference between an iguana’s rights and the Guantanamo detainee’s rights?   Clive Stafford Smith : We figured out that the environmental laws applied in Gitmo even though the US government said the Constitution didn’t. This set up the nice paradox that if you kick an iguana you might get 10 years in prison and a $10,000 fine, but if I kick you—assuming you are not an American—nothing happens. So we claimed in the US Supreme Court that if our clients had ‘equal rights with iguanas’ it would be a step up.   CJLPA : Before the Guantanamo cases, you dedicated your life’s work to defending prisoners on Death Row. Reflecting back, how would you compare the experience in defending clients from capital punishment compared to defending clients at Guantanamo?   CSS : It is very similar. The point of the death penalty is that the US faces a very real societal problem—a high murder rate, often precipitated by drugs and alcohol, always committed with guns, largely by society’s disenfranchised. The obvious way to address this is to vastly improve education, have a better approach to drugs, ban guns, and create a meaningful welfare system. That is expensive and long term. So the chosen political ‘solution’ is to blame a small number of young black men, and execute them, as if that will solve anything. With Gitmo, we had a large and expanding group of people who hated us, largely because their dubious leaders blamed us for every ill. In turn, we thought the best way to address the patent inequities in the world was to pretend that all these ills were caused by Muslim extremism and to say that if we punish 780 fairly random bearded Muslim men we would be able to say we had taken action.   CJLPA : Were there any similarities in the legal procedure and what were the main differences worth noting?   CSS : Ironically, the reason the best lawyers in Gitmo were death penalty lawyers from the state courts (not the federal) is because they were the people who understood political cases. It is not about the legal procedure (which is hopeless in both fora) but about bringing power to powerless people.   CJLPA : It would be interesting to get your view on the psychology of Guantanamo, to better synthesize how and why the US was capable of kidnapping innocent men and locking them away for years without a charge or trial. In your opinion, what is it about ‘terrorism’ that brings it to a whole other league where justice and the rule of law are merely a memory? Even the Nazis, the spies from the Soviet Union sharing secrets about a nuclear holocaust, were given a trial.   CSS : It is ironic that in what was touted as a war to protect democracy and the rule of law the law was the first casualty. But then it does tend to come back to whether we respond with any good sense, or simply to convince a gullible domestic audience that we are doing something. In this case, there is the added factor that the US is just not attuned to being attacked. The US was not—thankfully!—used to being attacked. Our territory has really been attacked on three occasions: 1812, 7 December 1941, and 11 September 2001. Terrorism is just a word we use when people have complaints that, while sometimes justified, the powers that be do not wish to recognize.   CJLPA : Even before the legal questions eventually went before the Supreme Court about constitutional rights, habeas corpus, or due process, the first challenge was knowing who was captured. You were one of the first lawyers that got involved in fighting for the detainees at Guantanamo and took on the crucial role of identifying clients. Can you explain how you did this?   CSS : There were three of us who brought Rasul v. Bush  and we divided up responsibility: Joe Margulies was essentially in charge of researching law; Mike Ratner was building a coalition of lawyers, and I took on identifying the prisoners and getting permission to represent them (as we could not get to them, we needed a ‘next friend’, who would normally be a family member).   It was not until 2006 that we finally got a list of the prisoners. Until that point, for over 4 years, who was in Gitmo was classified. I was building a list from the start, from media reports of missing people around the world. Unsurprisingly it was very inaccurate.   In Yemen, for example, the per capita national income was then $300 a year. If they wanted to hire a US lawyer for $1500 an hour, if they didn’t eat all year they could get just 12 minutes. So we needed to let people know we would do it for nothing.   So I would go to each country, hold a press conference, and say that I was there to provide free representation. People would come forward to a designated hotel, and I would get them to sign authorizations.   The main thing was to say sorry. I did a lot of that.   CJLPA : Despite the fact that the US did not allow any spot of dignity for the detainees, you still found loopholes around this. I particularly like your idea with Binyam Mohamed, when he asked you for a number ten shirt from the Dutch football team. Can you briefly explain the idea behind this?   CSS : So the Military Commission was just a kangaroo court, not worthy of us taking it seriously. Rather than that we just illustrated its folly. And it kept Binyam amused, as he had a great sense of humour. The rules said you could not dress your client in Orange (that would look like the dreadful early photos), but you could dress him in ‘Culturally Sensitive Attire’ (which was meant to make us look like we were being culturally sensitive). Obviously the answer was to find something that was cultural but orange, so Binyam chose the Dutch No 10 shirt since he was the tenth person in the Commissions (or Con-missions as he rightly called them).   CJLPA : Last time I spoke to you, you told me about the story that you would tell the detainees to make them understand what the Americans were doing, the story of the Br’er Rabbit. Can you briefly explain it and why you told the detainees this story?   CSS : If you say please don’t do something they would always do it. And so I explained to everyone the old story of Br’er Rabbit and the Briar patch where he got caught by Brer Fox and his Tar Baby. Br’er Rabbit is the small clever slightly arrogant rabbit (us), and Br’er Fox is the big stupid animal representing the US government. So Br’er Rabbit said ‘Please don’t throw me into the Briar patch’ because he wants the Fox to do just that. That is often what we wanted too, and the US government almost always fell for it. So I told the story in English, French and my execrable Italian (to some Libyans who spoke it—I could not remember the word for Rabbit) and that went around the Base. It came back later that the authorities thought there was some escape plan code named Rabbit…   CJLPA : I want to continue by discussing the aftermath of Guantanamo. The tragedy extends beyond the release of detainees. The US initially labelled Guantanamo detainees as the most dangerous terrorists globally and then expected other countries, each with their own political agendas, to accept these men as refugees. Can you shed light on some of the difficulties your clients have faced since their release? Additionally, how are they attempting to reinvent themselves?   CSS : It’s important to stress that the predicament of Guantanamo detainees didn’t cease with their release. The US government not only released them, branding them as the most dangerous terrorists globally but also attempted to link them back to their alleged crimes upon release. Take the case of Binyam Mohamed, for instance. When he was sent back to Britain, authorities handed a secret document to the BBC, containing information extracted through torture. During an interview with Mohamed, a BBC journalist pulled out this document and began questioning him based on it. It was only because I was present there and had seen that document in secret before that we were able to stop it, because it was nothing but false evidence obtained through torture.   Moreover, they systematically sent people to countries where they had no connection. Mohamed El Gorani, for example, was a young kid of only 14 when he was taken to Guantanamo. He was born and raised in Saudi Arabia, but his family originally hailed from Chad. The US sent him back to Chad, a place he had never been to, in the middle of nowhere. The authorities in Chad aren’t known for being enlightened, and he had no support there. In addition, I’m going to be in Dubai in a couple of weeks. Many prisoners were sent to Dubai, where they were subjected to treatment worse than what they experienced in Guantanamo.   While some countries have been more reasonable, the overall assistance people received in reintegrating into society has been minimal. For instance, if you know someone with just $3,000, like Ahmed Rabbani, who is attempting to open his Guantanamo restaurant in Karachi, it’s a daunting task as he lacks the necessary funds. We managed to raise some funds for him to provide a roof over his head, but he has had his entire life taken away from him.   CJLPA : I also want to ask you about the labelling of terrorism because, in fact, most of them were not charged with terrorism.   CSS : In the case of Guantanamo detainees, only one was charged with terrorism, and there was no official charge of ‘conspiracy to commit terrorism’ due to a lack of appropriate legal grounds. Instead, detainees were often charged with other offences. The term ‘terrorism’ is indeed used broadly and sometimes controversially. Various countries apply it differently, leading to diverse interpretations. For example, Israelis label every member of Hamas as terrorists, and some British people refer to the Irish as terrorists. So all sorts of countries are doing it. Pakistan indicted Imran Khan as a terrorist. Imran Khan reached the age of 70, without a traffic ticket and suddenly he’s got 200 Federal criminal charges against him, including terrorism. So you know, this is just a stupid word that’s used to try to make people blind to the realities of what’s going on.   CJLPA : Moving a bit away from that, but focusing on the definition of terrorism: it’s a term that people have attempted to define in various countries over the years and have consistently failed, leading to constant amendments. Yet there’s always this push because, nonetheless, there’s a sense of needing to justify that it is an entirely different crime, different from murder, for instance. For example, that the victim in terrorism is not the victim; they’re merely an instrument of instilling fear among the public, or that it’s about sending a political message, and these features are what supposedly differentiate it. What’s your outlook on having a separate definition of terrorism? Do you think it makes sense? And how does having that charge in itself affect obstruction of justice?   CSS : There’s more than just the word terrorism, there are effectively two words beginning with ‘T’ that are used to blind everyone in this whole debate. One is Terrorism, and the other is Torture. So there’s a whole debate about whether what happened to my clients was torture. I don’t care if was torture. You know, we’re looking at this in such a foolish way. There was a time when we thought that just being unpleasant to someone was bad. Certainly, if you have a suspect, and you slap your suspect, that’s not good. But it’s not torture. So suddenly, the debate has become about whether these people a) are terrorists, and b) whether we’re torturing, which is just a totally fatuous debate. Because it’s acting as if treating people badly is acceptable, as long as it falls short of torture. So, you know, I don’t like any of this discussion. I think it just blinds people to any sensible debate.   CJLPA : And I wanted to ask you about any accountability that has happened sense, which I know is minimal. But did any of the detainees receive compensation from the US government for the wrongful detention and acts of torture?   CSS : What do you think? No, of course not. They haven’t received an apology let alone compensation. No one’s admitted that anything was done wrong. Now, we got compensation for some prisoners, but never from the Americans. We got it from the British government for their complicity in what the Americans did. The Canadians had to pay Omar Khadr for their complicity. Then there was the only really successful litigation in America, to get compensation from the two psychologists who came up with this whole thing. They were paid $81 million to come up with a method of abusing prisoners. And so they were sued because they didn’t have sovereign immunity, they didn’t have the defences that the US has created for itself. But of course, their contract with the US included the fact that the US would indemnify them for anything that they might lose through being sued. So neither of those two doctors actually lost anything their lawyers were paid for, and all their costs were paid. And so in that small way, I suppose the US had to pay a small amount of money. And we’re about to do it again, on behalf of Abu Zubaydah, I hope. But the short answer is no. The US has wasted millions and millions of dollars, by now it’s over billions of dollars, on Guantanamo. But they certainly have done absolutely nothing to ensure that the people that they mistreated so badly would not become vehement enemies of America.   CJLPA : Following on that, are there any legal recourse or legal actions that have been in motion since their release? Either for the detainees, or in the sense of the misinformation that was released to the public at the time about how they were labelling them as terrorists?   CSS : The only way to get accurate information out to people is for us to do it. And then the media has been woeful in this regard. You look at the New York Times . On their website, they have been on the Guantanamo docket. The Guantanamo docket was leaked by WikiLeaks. And I ended up testifying in Julian Assange’s hearings in the UK on that particular subject, because I would perfectly willingly believe that the US intentionally leaked that themselves, because that isn’t the information I get to see. I was all excited when I heard that WikiLeaks had leaked secret documents from Guantanamo Bay, because I thought you were going to get to see what I got to see. But that’s not true at all.   What they leaked was the very, very minimal documents that the US government comes out with on each prisoner. And it is effectively the wet dreams of the torturers that they thought were true. And there’s a lot I can’t talk about that because it’s secret, and I can’t tell you or I have to kill you. And that’s quite hard to do over Zoom, so I’m constrained. So, the one thing I can tell you is one case in which I got everything declassified, just to illustrate. So it’s the case of Younous Chekkouri. And with him, there was a 13-page document about what an evil wicked terrorist he was. And when I litigated that in Federal Court, we had 1811 pages, proving all of that was total bullshit (I think that’s the legal term). So for each page they had, we had about 130 pages proving it false. And you don’t get to see that. But the evidence against these guys is just such nonsense, and the media is so gullible. Just publishing that. And we ask the New York Times  to put up there, that this is not evidence, this is not true. The vast majority of this has been tortured out of people. Instead, they put one little disclaimer saying lawyers dispute whether this is true. So these men, and they’re all men, will be dogged for the rest of their lives by this sort of defamatory rubbish.   CJLPA : It’s interesting, though, because you do sometimes hear about these criminal cases where individuals got released after finding out that they’re innocent, and there is compensation sometimes in those circumstances. But in this instance, when it’s been quite clear, and it’s in public information that they have been held, without ever having been charged, without having a proper hearing, that to this day, there’s not been any sort of attention to it.   CSS : There’s not been a single instance, in which the US has admitted they made a mistake. You know, to begin with, when they released someone they had all six of the secret agencies saying that this person was no threat. And to begin with, for a little while, they said that you’d been cleared. But they suddenly realized what that sounded like. So instead, they changed the verbiage to say that ‘you have been found to be no longer a threat to the US or as coalition allies’. So they use that language just so they never, ever have to say the words ‘I’m sorry’. Which is ironic as all these Republicans who are so incredibly high on taking responsibility for your mistakes, and want to punish people who do make mistakes, are surely the very last people who are ever going to admit that they made a mistake.   CJLPA :  Both political parties, Republican and Democrat, and I think that’s what makes it so disappointing with the Democrats as well.   CSS : Totally. I mean, Obama said he’s getting rid of Guantanamo and torture. Never did get rid of Guantanamo, but instead he created assassination. So instead of having detention without trial, we have the death penalty without trial, which is obviously even worse.   CJLPA : In light of this, where does international law come into play? Is this an indication of international law’s weakness? Or merely one of the circumstances where it has failed? What is your perspective on that? Specifically, as well, I know that the US has not signed too many treaties in this respect.   CSS : How many treaties has the US signed that are enforceable against us? Human rights treaties? Zero. There’s not a single one. There used to be one, which was the United Nations Treaty on Consular Relations. But we’ve withdrawn from the enforceability clause of that. So there’s now none. So international law is of no relevance to the people in Guantanamo Bay at all. And it’s a great tragedy, because one day the US will need  international law. When China is top dog, and the US is complaining about their rights being trampled on, they’re going to say, well, I wish when we were top dog, we’d signed up to all this stuff and enforced it. But they won’t, because they’re willing to enforce it against, you know, maybe a few dictators from Africa, but they’re not willing to have it done to any Americans. So as a consequence, it has no relevance to what we do at all.   CJLPA : But also, more broadly, not in the sense of treaties, but just international law in the sense of war crimes. How is this any different than when you’re at war, and then you’re taking people against their will and detaining them, and there’s no trial, and there’s torture. I mean, it’s what’s currently happening in the world, where we are claiming war crimes, and the UN is speaking up. But in this instance, there’s still to this day, nothing said about it.   CSS : Well, there’s a lot said about it, actually. But it’s all said in exactly the opposite way that we would like. What we have done has licensed a bunch of repressive regimes to do the same thing. And you know, how many times have you seen in Syria or wherever that some group of people that we don’t like would dress up the prisoners they had in Guantanamo orange outfits, and just say that they were doing the same as Guantanamo. So, you know, in terms of humanitarian law and practice, what we did in Guantanamo set us back decades. And it’s such a shame because in the early days when I still thought the law was vaguely relevant to Guantanamo, I did a lot of work on the Nuremberg tribunals, where the bad guys were really the British. Because Winston Churchill said, ‘let’s just kill 10,000 Nazis’. And Stalin said, ‘Oh, let’s give a trial, a Stalinist trial to 10,000 Nazis and then kill them’. And it was only the Americans who insisted on due process to the extent that a very limited number of people were hanged, and 30% of the people were acquitted, which was really a credit to the US. But we’ve thrown all of that away, which is really a shame.   CJLPA : My next question is in light of what we’ve just been discussing about the crimes that are committed and how the government is abusing their power, in the name of national security. Why do you think we still have laws that give the executive the power to abuse human rights in the name of national security?   CSS : Well, I don’t think we really do have laws that give them the power to do it. It’s just they do it and no one is able to stop them. And it’s really interesting. I’m teaching a course at Bristol University this year. And one of the first things, it’s about the US Constitution, and it’s about actually how wonderful the US Constitution is compared to anything the British have. The British legal system is abysmal compared to what we have. Britain has Belmarsh. Belmarsh is very, very active. Britain has its own secret courts, which are way worse than the American secret courts, on account of the special advocate. If you’re a terrorist, and they want to use secret evidence against you in Britain, they appoint you a barrister who you get to meet now before you know any of the evidence, and then after that, when your barrister gets to see the evidence, the barrister can never talk to you again. So this person is meant to be representing your interests and is not allowed to even talk to you. You know, at least in Guantanamo, we’re trusted to see secret evidence and not reveal it to the client unless we have gone through steps to make it possible. And, you know, obviously, we obey that because I wouldn’t trust them as far as I could throw them not to listen in on everything we do.   CJLPA : Is that just what happens? Or is that what’s permitted? For instance, under the Terrorism Act?   CSS : That’s the rules they come up with. But the British are so pusillanimous that they don’t challenge it. I met with them when this was first put up and I said, you’ve got to do what we’ve done in Guantanamo, which is we don’t take part in a system that’s that rotten. We challenge everything about it. But instead, now they go along with it. These are all the people who probably went to the same private school that I did. And so the British system is vastly worse. The American system, at least we sued them. We won in the US Supreme Court. We got access to them. We set up a structure that’s far from perfect, but it’s resulted in the release of 96% of the people so far. So, you know, that’s vastly better than Britain.   But most of that has to do not  with the law. The law has been important just to get in there. But of the 750 people who are no longer in Guantanamo, the courts have ordered the release of one. That was Asadullah Harun, who was coincidentally my client. But the other 749 are no longer there because of the Court of Public Opinion. And that’s about going in there, getting the truth out, and then publishing it to the world, which we do all the time, and it’s a battle because they try to make it all secret. But in Britain, you wouldn’t get it, no one does that. They just have a secret little hearing that the prisoners are not allowed to be at. And then they sentence the prisoner to years and years in Belmarsh. It’s dreadful.   CJLPA : What is the role of the judges regarding Guantanamo? How involved were they with the executive? Were they just interpreting cases and making their decisions in order to make sure that they were appeasing those in power?   CSS : I don’t care what the judge is doing in Guantanamo. The judge is totally irrelevant to the system. You know, when you’re in a kangaroo court, the only thing you can do is get out of that court. So I’m not the least bit interested in anything they do, I’m interested in releasing and reducing them to a laughingstock. That’s what we did in Binyam Mohamed’s case: we just took their rules, I gave a copy to Binyam, he had a wonderful sense of humour and just took the piss out of them. And then I reported myself to the Bar Association in this case, because it was unethical for me to follow their rules. And I did that just to get out of their little kangaroo court. Even if it meant that I was in a court in America, at least that was likely to be more fair. So the person who’s the judge in the commission is just a puppet of the government and should be ignored at every level.   CJLPA : In the present day, where are we left with Guantanamo Bay and the detention centre? Is it a matter of individually getting the clients out?   CSS : Individually we got of most of them, and we’ll get a whole bunch more out in the next few days. And then the end, there’ll be 10 people left in Guantanamo. And those will be Khalid Sheikh Mohammed and his mates; probably most of them were involved in some way in 9/11. So, what you’ve got is a capital murder of 3,000 people, and they’re not going to get the death penalty against him. And that’s extraordinary. This illustrates how totally pointless their whole process is that in the worst crime ever committed against the US, they’re going to lose. And that’s not because of the Commissions or the courts or anyone, it’s because of what we did, it’s because we tortured people, and we went so far astray. So in the end, there will be ten poor guys stuck in Guantanamo forever. And you know, they’ll end up dying of old age there, which is not a great thing, I suppose. But it’s a lot better than what would have happened to them if they’d been in a real court.   CJLPA : And finally, what do you think is the legacy of Guantanamo Bay? Do you think the world’s learned from these horrifying events and the world is moving in a better direction in the name of human rights?   CSS : No. I wrote a piece that was for Al Jazeera  a while back about taking my grandson on a tour of the Guantanamo Bay Injustice Museum. I don’t know if that’ll ever happen. I hope so. One of the very first times I ever went to Guantanamo would be almost 20 years ago now. The nice sergeant who was showing us around was talking about how he wanted to close it down as a military base and open it up as a tourist destination. You know, it’s got an airport, it’s got lots of very secure hotel rooms, it’s got a McDonald’s, it’s got the Guantanamo Golf Course on Recreation Road, it’d be fabulous. And I thought, yeah, it’d be great. And we’ll have a museum to human folly and injustice. I hope that does happen one day. I hope we give it back to Cuba. And I hope Cuba turns it into something like that. I think the chances of that happening are fairly slim. But it’s what should happen.   CJLPA : This has been an absolutely fascinating discussion. Thank you Clive for taking the time to speak with us today, to help spread knowledge and insight about the ongoing violations happening at Guantanamo Bay. This interview was conducted by Nadia Jahnecke, Legal Editor and Founder of Human Rights Volume of CJLPA 3. In addition to her role at CJLPA, Nadia is currently working as a Trainee Lawyer and will qualify as a lawyer in England and Wales in March 2024.