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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.

Soomaya Javadi is a Hazara human rights activist who fled Afghanistan with the help of the 30 Birds Foundation. Actively advocating against ethnic or gender-based discrimination, she is part of the '#StopHazaraGenocide' movement. Currently, Soomaya is working as an early childhood educator and studying at the University of Saskatchewan. CJLPA :   Welcome, Soomaya Javadi. 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 . You are truly a remarkable and inspiring figure to all women across the world, as despite the pain and suffering you endured with the return of the Taliban, you continue to fight for human rights both for women and the Hazara ethnicity.   I would like to begin by asking you to tell us about your childhood briefly. What was life like before the US pulled out of Afghanistan and the Taliban came to power? And what were your main worries at that point in your life?   Soomaya Javadi : Thank you for inviting me, it’s really an honor to speak to you. So, I was a dentistry student before Afghanistan   fell to   the Taliban. I attended high school in Kabul and then studied dentistry at university. I have spent most of my childhood in the Islamic Republic of Iran and we were Afghan refugees.   The condition of Afghan refugees in Iran or in Pakistan is not good. For example, an Afghan refugee does not have the right to study, nor to own a property, a car, or house in Iran.   I am a Hazara woman. I belong to the Hazara ethnicity, which is one of the most persecuted ethnic groups in the history of Afghanistan. And I am Shia—Shia Muslims are a minority against the Sunni majority of Afghanistan population. Things are more difficult for Hazara women who are considered twice as inferior because of their gender, race, and ethnicity.   When I started university, one of my professors said in the first week: ‘You guys are taking the seats of men. Your ultimate goal in life is just to stay at home and bear children, so why bother?’. He thought that he was giving us advice or something.   I think it’s not easy to be a woman anywhere in the world—with all the discrimination—but it was much harder in Afghanistan. And I think that every day that my peers and I went to school or to work, we were fighting against the patriarchy that existed in Afghanistan and exists now.   CJLPA : Thank you. I can’t even imagine what that must have been like growing up. Following up from this upbringing, after the US withdrew their troops, the Taliban soon regained the power to establish their authoritarian regime. Can you please tell us about the atmosphere in your community when Kabul first fell to the Taliban?   SJ : So, as you know, our President Ashraf Ghani escaped before the Taliban even got to Kabul. He escaped, and that made everyone panic. What is going to happen to us?   I remember that, around two weeks before the fall, one of the Taliban leaders said: ‘If we want, we can get all of Afghanistan in two weeks’. I thought that he was bluffing. But maybe that was the only true thing he said, because two weeks later, they got Kabul. I remember that the day Kabul fell to the Taliban, I went to the university to ask for a kind of certificate or a paper showing that I had studied five and half years here because I was a few months away from graduation. I asked the people in charge to give me some paper so that, if anything ever happens, I can show that in a few months, I would be a dentist. They said that I should go to the Ministry of Education. I went to the Ministry of Education. They said I should go back to my university and ask them. I was told to go here and there but nobody was willing to give me that proof of education.   Around 3pm, I went to the university for the last time and stopped this professor to ask for his signature on a paper saying that I had studied here. He replied: ‘That’s not my business. I don’t care if you have studied here’.   I knew why—because I was Hazara, and I was a woman. He would rather have ignored me than helped me. When I called him earlier, he said: ‘Yes, please come’, because from my voice on the phone, he couldn’t know that I was Hazara. But as soon as he saw my face, he was not willing to help me anymore.   Once at home, at 6pm, I saw the Taliban’s flag on the President’s house—which we call ‘Arg’. I couldn’t sleep that night. And two weeks after that, I was sleeping maybe two hours every 24 hours. I just couldn’t believe what was happening to us.   That night, my fifteen-year-old brother and I packed our books in big bags because we didn’t know what was going to happen—we had around 500 books in our home. We were told that they were searching house by house. The only thing we had were books so we took them out into the backyard, burnt some of them and buried most of them. At 4am, we were done.   I was lying in bed in the dark, thinking I wasn’t dead yet. Beside my empty bookcase, I choked back my tears and thought: ‘Have I ever existed? Has my life ever existed?’.   All the things that I have done, all the books that I have read—I was a dentistry student, a free and independent woman. I had my life, and in a second, in one night, everything was done. I was nothing from now on. Since that day, the Taliban have announced eighty-six commands to limit women’s lives.   CJLPA : It seems like you were very proactive when the Taliban took back power and Kabul fell. You went immediately to get your papers from Dentistry to prove that you are a student. You and your family were quick to bury the books in any sort of evidence to suggest that you were an educated strong woman. Was that a preparation for the worst case scenario? Or did you have a feeling that the situation would get as bad as it did?   SJ : I knew the history, so, yes, I think I knew what was going to happen. The Taliban killed 2,000 to 8,000 Hazaras in Mazar-i-Sharif in 1998. During three days, they entered the city and shot anything that moved. This is the Taliban. I knew how they treated women last time, how they treated other ethnicities other than Pashtuns.   In the first week, I saw photos of Hazara male journalists who were tortured. They published photos of their bodies full of bruises and blood everywhere. My father was a journalist and I feared for his life and for every member of my family. You know, when humans decide to do bad, to be evil, there’s no limit for that. And the Taliban now are breaking a new misogyny record. CJLPA : Thank you very much for sharing this horrific and terrifying situation happening. I would also like to ask you what was the reaction of the men in your community when they first learned that the Taliban had come to power?   SJ : I’ve been asked this question a lot. The Taliban may be the most misogynist government in the world today, but they don’t just act against women. They are a group of people who represent only one gender, one ethnicity, and one religion.   I will give you an example of what happens to men in my community: Raja is a Hazara Shia man who has been married for the last 15 years to a Sunni Pashtun woman.   They were arrested and tortured when the Taliban came. Their children could hear their parents’ voices as they were being tortured in the other room. Raja explained that they put a pipe in his mouth, hit him, kicked him, and used electric shocks on him. When he asked what his crime was, the Taliban told him it was because he was Hazara and married to a Pashtun woman, so he should suffer the worst. They then tortured him, killed his brother, and forced him to leave his religion as Shia and to become a Sunni. Only then they released him.   This is the way they treat all people, not just women—it’s much more complicated than that. So men and women were scared when the Taliban came because they all knew they were going to treat people would be terribly.   CJLPA : Was there defiance in Afghanistan when the Taliban first came to power? Did people try to do anything or were they just hiding?   SJ : So the first thing that happened was then the President escaped, so people panicked and went to the airport. You may have seen photos and videos on social networks of people clinging to planes. But since then, women have been protesting in the streets asking for their rights back. The Taliban hit and arrest them, but they don’t stop. Alia Azizi—a Hazara woman—was the head of the prison in the city of Herat before the Taliban arrived. One of the Taliban commanders told her to come and see him or she would be arrested. She goes there but she never came back.   She has a husband and children. A year later, photos of her appeared on social media and certain news platforms, showing that she had been forced to marry a Taliban commander. It’s a very familiar story, like Margaret Atwood’s Handmaid’s Tale—being forced to marry when you have your own children, your own husband. This is how women are treated. But, even beside those kinds of treatments, women were protesting on the streets with their bare hands and no guns, just demanding the Taliban to give them their rights back.   When they were arrested, I remember in the spring of 2022, I saw this video of women being forced to confess and say they were being hired by the foreign countries to go on the street and protest. It was obvious they were forced to confess. There were these news reports and photos published on various news platforms showing that women that went to protest, their dead bodies were found in the trash. The Taliban don’t even bury when they kill—they put the bodies in the trash so that people can see them and be afraid. They just want that fear to grow among people. But despite those kinds of treatments, women are still going on the street and are still demanding their rights from the Taliban. But nobody hears them. They have no other support.   CJLPA : Those stories are completely awful and it’s hard to believe that it’s all happening in the 21st century. Could you please tell us what are the worst crimes occurring in Afghanistan to date that go unaddressed and unaccounted for by the international community?   SJ : The women’s situation in Afghanistan is something that people talk about, and people address, but they don’t take action about it. It’s as if the Taliban had taken women hostage and were threatening to the world to accept the Taliban’s power, otherwise they will harm women. It should be the other way around. It shouldn’t be the Taliban using women’s situation as a leverage on the international community. That’s one of the problems that have been raised but people don’t react or take action against it.   Another problem is that, after the Taliban came, the Kuchis—the Pashtun nomads—another ethnicity in Afghanistan—they force people to leave their ancestral lands and they are backed by the Taliban and they go to to different cities in different provinces in Afghanistan especially, they force Hazara people to leave their lands, or they would be killed.   When Hazara people go to the authorities—which are the Taliban—to say that this is their land, the Taliban will not listen to them and they’ll back the Pashtun nomads becuase the Talibans are also mostly Pashtun.   The Hazara people are forced to leave their lands while they have nowhere to go and no money because they can’t even take anything with them—their animals, or their possessions. Besides that, they would come and ask people for money. They would say: ‘Someone’s brother was killed in that village 30 years ago so you and the whole village have to pay for it’. And there is no investigation on that. The Taliban just back those people. That’s the way other ethnicities are being treated in Afghanistan.   But where were they in the last 20 years? Why now? Because the Taliban now have the power, the Pashtuns also have the power. That’s something that is not addressed properly. The genocide against Hazara people that is going on in Afghanistan is not addressed properly. In 2020, there was a terrorist attack on a maternity hospital in Dasht-e-Barchi, Western Kabul —a Hazara resided area. The terrorists attacked pregnant women who were hours or minutes away from labor. They killed two newborns. In 2021, there was a terrorist attack on the Sayed ul-Shuhada school—a girls’ school. Around 80 little girls were killed, and many were injured and disabled forever. In 2022, the same thing happened at a boys’ school—Abdul Rahim Shaheed.   In my neighbourhood in Kabul, in Dasht-e-Barchi, there are numerous terrorist attacks and killings every month, and the Taliban and the terrorists can do anything they want with impunity. They kill mothers, children, and newborns. This is genocide and no one is holding them accountable. CJLPA : You mentioned that many people had to leave their houses. The 30 Birds Foundation helped you and your family escape Afghanistan. Before you had to leave Afghanistan, did you bring anything with you?   SJ : When leaving our home, we were so afraid so we didn’t take too many things. We just had one suitcase for all of us—we were a family of five at that time. I think we just got a pair of clothes for every one of us, toothbrushes, some things that are necessary. And the only thing that I took that was very dear to me was my diary, and some documents to prove that I was educated. I didn’t take any of my books or anything. We couldn’t get many things or it would have been too heavy for us. We wanted to be lighter to move faster.   We went to Mazar-i-Sharif, which is a seven to ten hour journey, where we were told that an airplane would take off. We stayed in Mazar-i-Sharif for around two weeks but that airplane never took off because there was some change in the Taliban’s leadership at that time. The 30 Birds Foundation told us to go back to Kabul as there was no way we could fly from Mazar-i-Sharif. We were so hopeless. We were trying to find a way to get out, but it was impossible. We headed back to Kabul, but on the way, our bus broke down because of bad luck. We were in the middle of nowhere, surrounded by mountains. There was no other car or bus that could take us. We had to walk through those mountains for several hours. We could see the Taliban’s vehicles with their guns. I was fearing for my life and my family’s lives.   I still have the videos and photos of those hours. My brother was carrying the big suitcase. It was summer, it was hot. I had this black hijab and this was humiliating because I didn’t believe in that hijab, I was just scared and I had to have that. It was forced on me by the Taliban. I remember that my dad told me: ‘Walk like if they’re not here, don’t look at them, just walk’. We managed to find another car and went to the next city. What was supposed to be a seven-to-ten-hour journey to Kabul took us a day. The next morning, we had to be at the border. We went there at night to make sure we weren’t late. We had nothing. Some of us slept on the dirty ground, others slept in the car.   I was so hopeless, so dreamless, and I wasn’t even sure we could get somewhere. I thought that my mind was very empty. I was just losing everything, leaving everything—my home, the places that I loved, the people that I loved, my friends, the objects that I liked, books, diaries, everything.   And it’s funny because after a month—when we finally came to Canada—the first thing the officer told us when we landed and came out of the airplane wasn’t ‘Hello’. He said: ‘Happy birthday’, like if we were born again. I felt dead the night I was sleeping on the ground at the border. And when the officer said ‘Happy birthday’, it was another life.   CJLPA: Thank you Soomaya for sharing that experience. That’s just absurd trauma for you and it’s just outrageous that you and so many individuals in Afghanistan had to suffer such gruesome atrocities in so many different forms. So I appreciate you going into detail to spread the awareness because these are things that people do not know about that’s happening. So it’s really important that we address this.   I want to shift a little bit to discuss some of the points you mentioned earlier about talking about accountability and the international community needing to know what’s happening and needing to respond to the Taliban. And, not negotiating with terrorists, because as you said, they are using women as leverage, but it should be the other way around. The first question I want to ask you specifically is in respect to the United States. With all the political discussions around it, what were your thoughts when the US first pulled out?   SJ : I felt like a character in a video game who thought they had a life and a goal, but then, I was just played by others. When Afghanistan fell to the Taliban, there was nothing I could do to change anything. I felt betrayed. I thought that I had a life, but no, I was not born to live. On 23 August, I wrote in my diary: ‘I wish I had never heard that all humans are equal. I am not equal. And there is no way I can be equal. I wish that I had never been taught that I am a human, because I’m not when I don’t have the rights. I wish that I wasn’t lied to when I started to study, when I learned how to read, when I learned how to write, when I learned how to dream’.   In Geneva, you were in Geneva, I mentioned this little girl I know who is in Afghanistan and who is one of the most remarkable young ladies I have ever seen in my life. The way she sings, the way she talks, I remember her and I think she has no choice about what she wants to do with her life. It’s the Taliban who determine who or what she will be. Do you trust the Taliban enough to leave your own daughter to them? Do you trust the Taliban enough to leave countless lives to them? That was how I was feeling.   CJLPA : Thank you for sharing that. It is such a heartbreaking situation and as we speak, that is just ongoing and continuous. This is why it’s so important that we continue the dialogue because at the end of the day, politicians need to know what’s happening, individuals need to know what’s happening to pressure their governments to respond. On that note, I know this is a question for politicians to address, but from your perspective, what kind of things would you like to see actioned from the international community that you think could scare the Taliban or pressure them to slowly move away from these human rights abuses that they’re committing out of fear?   SJ : The first thing that I want to say is that we are not a project. We are people, and this is our lives. It’s not some kind of project that you work on for some time and then you stop. We are not projects, we are people. I’ve been seeing some efforts to engage with the Taliban.   I am asking the international community: Do not engage with the Taliban! Do not engage with the Taliban! Do not engage with the Taliban! I ask you and I urge you: please, do not engage with the Taliban! What Taliban? The Taliban who kill women? the Taliban who kill children? the Taliban who confiscate people’s land and who represent only one gender, one religion and one ethnicity, while ignoring the others and everything else? The Taliban who say that women are not allowed to go out of their homes without a male chaperone? What do you have in common with the Taliban to engage with them? I ask every influential woman, influential politician who is a woman: the Taliban are breaking a new record of misogyny every day, and you should stop them. It’s not only about Afghan women, it’s about women.   Yes, there is a gender apartheid in Afghanistan. But if you look closely, it’s more than that—a woman in Afghanistan is equal to nothing. When you don’t even have the right to go out of your home, you’re treated like you are nothing. And that’s about women, not just about Afghanistan.   I come from a family who has been suffering from genocide, deprivation, and exile for generations. My great grandfather’s family was killed by Abdullah’s army when he was around 12 years old. He was forced to leave his land and he went to northern Afghanistan to start his own family. And then my grandfather and my uncle were killed by the Soviets, and when I say Soviets I mean the Afghan people who became communists.   My father was forced to leave his homeland when he was 15 years old. He lost his father when he was two, his mother when he was eight, his brother when he was six. Despite this, we stayed in Afghanistan for a long time because my parents wanted to see their children raised in this country and have freedom and equality. I, as a woman, was fighting for equality. Every day I went to school, every day I went to work, I was saying: ‘No matter how hard it is, I am here. I am a Hazara Shia woman who is equal to you’.   The international community must hold the Taliban accountable for all the crimes, atrocities, and killings they have committed. They must be held accountable. I was asked why the Taliban are so scared of women and I answered it then. But now, I think the Taliban are not afraid of anyone . They do what they want because they have total impunity for the way they treat people.   So my plea to the international community is to hold the Taliban accountable for what they are doing, especially for the way they treat women, and for the Hazara genocide. We want the Taliban to be accountable for what they are doing to Hazara people.   CJLPA : That’s a brilliant response and I think that needs to be spread in that discussion because at the end of the day if the dialogue keeps continuing, you’re just speaking to terrorists. They’re not going to respond. They’re not afraid of us. They’re just going to take advantage of the fact that we’re trying to make peaceful discussions and they’re going to continue with their human rights abuses. So I think the way you just framed that so perfectly really hones in on that.   Following up on that, do you think that cutting off the dialogue with the Taliban and not engaging with them could become dangerous for all the Afghan people, now that there’s no oversight of what’s going on? Or do you think that if we cut off the dialogue with the Taliban, they will feel pressured to minimise the abuses that are occurring and succumb more to international standards?   SJ :   I know that the Taliban are using international humanitarian aids to support themselves, their soldiers, and allies. The international humanitarian aid going to Afghanistan is not helping people who are in need. It is supporting the Taliban and their allies.   If you engage with the Taliban, if you approve of them, they will not change, they will not remove all the rules they have put in place to limit women’s lives.   I think that the international community must stop helping the Taliban with this aid and assistance, and that it must put bans on the Taliban. That’s the way you engage with a bully. You shouldn’t invite them and talk to them. You shouldn’t take them on private jets to talk to them. They are terrorists. The only way that they will understand what you’re saying is to put pressure on them, to have diplomacy with them, to put bans on them, and to use leverage on them. They want the international community to approve of them, so they have to try for it. It’s just the international community talking about engaging with the Taliban, but the Taliban are not doing anything. They are just continuing with all the atrocities. That’s what makes me angry.   CJLPA : Thank you. After everything you’ve endured, you still stand here today as a strong Hazara and Shia woman. How do you overcome this loss and empower yourself as a woman to continue fighting for this battle?   SJ : The other day, I was biking—I live in Saskatoon, Canada—and I remembered that when I was 16 years old, or 15 years old, I thought I didn’t want a job. I didn’t believe in it anymore. But I also remembered that one of my dreams was to bike, but without a scarf on my head.   In September 2022, there was a terrorist attack at the Kaaj educational centre in Dasht-e-Barchi, Western Kabul—the neighbourhood where I used to reside. In that attack, many Hazara teenagers were killed. One of them was Marzia, a teenage girl whose diary and things she was writing were vastly shared on social media. On one page, she mentioned her dreams, which included riding a bicycle and listening to music, visiting the Eiffel Tower, eating pizza in an Italian restaurant, meeting the Turkish writer Elif Shafak. So I told myself: Don’t ever dare to take this moment for granted. You are biking without a scarf, and you have freedom. So it’s on you to fight for people’s freedom’. I know what is happening to them, I was in their situation. I didn’t want that for myself, and I don’t want that for any other woman, for anyone. I think that I need to tell their stories, because if I don’t, who would?   CJLPA :   I think that’s exactly the point: if you don’t, who will? It’s unjust that that burden is put on you, but you have been voicing the voices of so many Afghan women and the Hazara and spreading awareness about what’s ongoing. Further to all the work you’ve been doing, how do you think we, as a society, can help empower women, specifically in Afghanistan, but also all around the world where misogyny is taking place?   SJ :   I think the world needs more compassion. As I said before, we should start seeing people as people, not as projects. When Afghanistan fell to the Taliban, I thought that I was not born to live as a human being. I was born to be on the casualty list on some kind of news. When you see in the news that a terrorist attack has caused around a hundred victims, that hundred could be 101, so that one person was even ignored in the news.   So I think the world needs more compassion. We should listen to the stories and, whatever our position, we should try to stop it.   I ask everyone, regardless of their position, to do whatever they can to prevent the world from engaging with the Taliban. Maybe I’m not expert enough to know what the right way is, but I know that engaging with the Taliban doesn’t help. It will just make them more powerful. And when they have enough power, they will do what they did 20 years ago on 11 September.   CJLPA : On a final note, what is the lasting message you want readers and viewers to think about for the current situation in Afghanistan?   SJ : I want you to know that people in Afghanistan, women, and men, are people. There are many people who are fighting against the Taliban. They could be women who protest on the streets every day, they could be girls who are still studying at home, who are being tutored by their family members. There are even underground schools in Afghanistan, and after what happened to the Sayed ul-Shuhada school, people were still sending their daughters to school because people in Afghanistan—especially Hazara people—believe in education and want it for their daughters and sons.   So I appeal to you to stand with the people who want freedom instead of standing with the Taliban or standing impartial.   CJLPA : Thank you Soomaya for your time today and for answering these very personal, difficult, and painful questions. We are truly inspired by your heroic work and for standing by your people as you continue to fight for human rights and democracy in Afghanistan. And by exposing these outrageous and shocking international crimes, we will continue to spread your story and this message in our upcoming publication. Thank you.   SJ : Thank you so much. This interview was conducted by Nadia Jahnecke and Angelina Spilnyk. Nadia is 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. Angelina is a graduate of the Ivan Franko National University of Lviv, Ukraine, in 2022 with a major in International Public Law. Alongside her position as a Legal Researcher at CJLPA, she is pursuing a Master's in Maritime Law at the University of Southampton.

Johann Soufi is a Franco-Algerian international lawyer and prosecutor, and a former Senior Legal Officer at the United Nations. He has been internationally recognised for his work and investigations into international crimes in many countries around the world. This includes his work as a legal adviser of the President of the International Criminal Tribunal for Rwanda, as Head of the Legal Advisory Section of the Special Tribunal in Lebanon, and as the Head of UNRWA’s Legal Office in Gaza. This interview was conducted in June 2023. CJLPA : Hello and welcome today, Mr. Johann Soufi. 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 provide insights and thoughts based on your extensive experience as an international lawyer. As you’ve had an extensive career to date in prosecuting and investigating international criminal and human rights violations and having been counselled for various international tribunals and courts, I want to begin by asking you what prompted you to delve into a career in international criminal law (ICL), as opposed domestic criminal law?   Johann Soufi :  Thank you for the question and for the invitation. Firstly, I don’t believe there’s a significant difference in being a lawyer at the domestic level or at the international one. I think that if you’re drawn to criminal law, it’s because you want to understand why certain individuals commit crimes, and explore the human aspects behind these actions. I could have chosen to practice in France, my country of origin, rather than at an international level, but I was truly interested in grasping the diversity of societies and their influence on the crimes we observe. There was also an interest in addressing the magnitude and the profound injustice of certain situations outside Europe. Like every practitioner who aspires to work in human rights or international criminal law beyond their domestic sphere, it was the extent of suffering in the world that I sought to address and challenge.   CJLPA :   Could you give us an example of a case you worked on to help establish a state’s accountability for their human rights violations, which ultimately resulted in justice being released  for the victims?   JS :  As you probably know, international criminal (ICL) law focuses on individual responsibility. The fundamental principle of ICL is that crimes are not committed by an abstract state or population but by specific individuals, whose actions impact an entire society. So, when it comes to establish a state’s responsibility, I might not have a straightforward answer. Nonetheless, I will offer two examples to illustrate the variety of accountability mechanisms available to push or assist states in fighting against impunity. The first is drawn from my involvement with the International Commission of Inquiry for Mali, where we were tasked by the Secretary-General with investigating crimes perpetrated by all parties: governmental, non-governmental, and international forces. I highlight this example due to the significant resistance from the current Malian regime towards those engaged in human rights, which is concerning. Yet, an important aspect of international justice and accountability processes is recognising the duration required to observe the effects of our work, which may not be immediate but could manifest over a decade. My second example relates to my current position in Ukraine, where I serve as a senior prosecutor for an organisation that supports Ukrainian prosecutors and judicial authorities in addressing impunity for crimes committed by Russians in the context of the ongoing conflict. Currently, there is a pronounced political will and a robust initiative to combat the impunity surrounding the crimes occurring in Ukraine. This political drive and the accountability mechanisms now being designed in Ukraine will, over time, reveal their efficiency, possibly within 5, 10, or 20 years. As international practitioners, the influence of our endeavors might become apparent in as little as five years or extend up to decades.   CJLPA : What you’ve just explained definitely demonstrates how ICL and international human rights law (IHRL) are the fundamental basis for the international community to be able to legally step in into another state and hold individual actors accountable for the most serious crimes. When we see these gross human rights violations occurring around the world, these legal mechanisms truly provide hope for addressing the issues, but equally, various challenges do come across. That’s what I was hoping to step into now, beginning with Rwanda.   Reflecting on the ICTR and the acquittal of Justin Mugenzi and Prosper Mugiraneza demonstrates the difficulty in proving responsibility of political leaders for violations of international human rights law. We must abide by the rule of law and start from the innocence of an accused, before determining their guilt beyond a reasonable doubt based on the evidence that is presented. This is the case in various criminal law jurisdictions, however, establishing evidence is very challenging. From your experience, how is this something that we could address?   JS :  Actually, my initial involvement with the ICTR, was working for the defence. I highlight this because, as an international practitioner, my interest has always been in the judicial process, rather than its outcome. For example, I don’t see acquittals, including of high-level political leaders, as a failure of the system. I see it as the possible outcome of any impartial judicial process. It is, sometimes, a failure when the prosecution or judges do not fulfill their mandate. But I also believe that an effective judicial system, whether domestic or international, should lead to an individual’s acquittal when they are innocent or when the prosecution has failed to establish guilt beyond a reasonable doubt. I hold this to be true for the ICTR as well. The second aspect which, I think, is also very important for international trials, is to recognise the significant political stakes involved in such cases and the paramount importance of the accused’s rights and the trial’s fairness in this specific context. This is because, at the outset of a trial, it’s uncertain whether political motivations underpin it.   This said, you are completely correct, international trials, particularly those targeting senior military commanders or political leaders, pose tremendous challenges. The reason is that the people who are behind the crimes, the most responsible, are usually very far from the crime scene. They may not physically have ‘blood on their hands’, but they bear significant responsibility for planning and organising the crimes, without which these atrocities would not occur.   To take a more familiar example, in a mafia case or organised crime in the UK, arresting the individual selling drugs or committing a murder might be straightforward. However, identifying the top of the pyramid and understanding the mastermind behind these criminal activities is far more challenging. This is equally true for international crimes, as victims or witnesses often describe the crime itself but have little or no knowledge of who orchestrated it. To the contrary, as a practitioner, when someone claims to know precisely who is beyond the planning, that often raises concern about the credibility of the statement. Usually, to find out about command responsibility, like senior leadership, you need to conduct a long investigation and have access to insiders who can testify about receiving orders or financial support. You also need to conduct investigation into telecom evidence, conduct intelligence analysis etc. This is much longer and more difficult process than just interviewing a few witnesses, and figuring out directly who could be the perpetrator behind the crime. If these challenges are not well explained to the victims, it can create frustration among them, and in general, among the international community about the length and the disappointing outcome of certain trial such as the one you have mentioned.   CJLPA :   I think that’s very well said in these circumstances. When there are issues of human rights violations, the public is very quick to point fingers at the state actors in question, rather than considering the political implications. As you said, it’s not a matter of the result, it’s about the process. Of course, there are higher political stakes , so we have to be very careful with how we prosecute these crimes and establish accountability. From what you’ve just said, it does sound like a very difficult and long process for the prosecution in terms of establishing jurisdiction, the rigorous investigative process in gathering and collating evidence over the years and working in heightened political risks in order to achieve justice for the victims and establish accountability. Do you think the current international criminal law framework that we have in place draws a fair balance on the burden of proof required by the prosecution? Or is it a matter of potentially reducing the burden for the prosecution currently?   JS :  No, I do not believe the burden of proof should be altered. Building on what I mentioned earlier, determining whether a state is democratic or respects human rights often involves examining how the state treats suspects. This is somewhat paradoxical because, in the context of serious crimes, the focus tends to be on the rights of victims. However, considering how the state upholds the rights of the accused is equally important. In many cases of human rights violations I have witnessed, the initial violations typically involve states levying false terrorism accusations. The first signs of widespread corruption and systemic violence against citizens often stem from issues related to the rights of the defense and the burden of proof. I maintain that for the international community to uphold its credibility in promoting human rights and international law, it must steadfastly adhere to a rigorous burden of proof and the presumption of innocence, making no changes to the burden of proof.   This said, it is true that trials should be conducted in a way that takes into consideration the specificities of international trials, the security context and the pressure that states or armed groups could put on the witnesses, including threat to their lives. To avoid misjudgment, international lawyers should also be more aware of the culture of the witnesses and the realities of conducting investigations in difficult fields. What I’ve noticed sometimes in international trials is that judges, prosecutors, and lawyers are evolving in a bubble. They are in The Hague, conducting their trial or investigation and don’t always understand the reality in the field and, or the possibility that after years of trauma, a witness will not remember the color of the car of the accused, or the precise date of when a crime took place. These are very important cultural elements that I feel sometimes international practitioners forget about and then assess the credibility of evidence with a lens which is not adequate. My answer in a nutshell would be by all means you don’t touch the burden of proof. That’s the pillar of any democratic system and of the legitimacy of international criminal law. But yes, you should also look at the evidence with a bit better understanding of what it means to witness such crimes and to actually investigate in such a difficult context, where sometimes the entire establishment, the entire forces of the state are acting deliberately to prevent you from finding out the truth.   CJLPA :   I now wanted to transition a bit to focus on broader issues occurring in Africa, in terms of human rights violations, especially in the context of the Journal , because we speak with various human rights abuse survivors, including survivors of human trafficking, genocide, and mass starvation in the country. From your experience and your knowledge, beyond the ICC, are there any legal mechanisms we have in place to address these crimes outside of the political sphere?   JS :  To a certain extent, Africa has always been at the forefront of the fight against impunity, given the magnitude of crimes occurring on the continent and the innovative approaches developed by both the international community and African civil society to address these atrocities. The International Criminal Tribunal for Rwanda (ICTR), established by the United Nations Security Council, is a notable example. However, there are numerous other mechanisms. For instance, the Special Court for Sierra Leone was initiated by the Sierra Leone government, influenced by the country’s civil society. Additionally, there’s the example of the trial of Hissène Habré in the Extraordinary African Chambers in Senegal and the Special Criminal Court in the Central African Republic, which are courts of a hybrid nature. There are also the truth and reconciliation efforts in South Africa, Sierra Leone, Gambia, and Liberia. This diversity of accountability mechanisms, extending beyond the International Criminal Court (ICC) and other tribunals created by the Security Council, showcases Africa’s significant contribution to the development of international criminal law and to the fight against impunity.   CJLPA : I now want to turn to the creation of the Special Tribunal for Lebanon (STL), established after the assassination of the former Prime Minister Rafic Hariri and 20 others. It was the beginning of a fight against international terrorism, even a first step towards establishing the responsibility of perpetrators of serious violations of human rights in the Middle East. Could you please speak about the investigative process in this period and more specifically on the difficulties and challenges throughout this process, reflecting on what was required to carry out these investigations in Lebanon when you were working as counsel?   JS : When discussing the complexity of international law, it’s important to consider the context of the Special Tribunal for Lebanon (STL)’s creation. Lebanon requested the tribunal, but strong political divisions within the country made it impossible to establish according to the Lebanese constitution. Consequently, the Security Council, identifying the assassination of Hariri as a threat to international peace and security, passed a resolution under Chapter VII of the UN Charter to establish the tribunal. This decision was, to say the least, controversial, especially since the STL was the first international tribunal to hold trials in absentia, further fueling debate. So, from the beginning, the STL faced questions regarding its legitimacy, compounded by strong opposition within Lebanon, where its activities were seen as interference and politically motivated against certain factions, notably Hezbollah. The tribunal thus operated within a highly charged political context. Adding to the complexity was the nature of the crime; the perpetrators had meticulously covered their tracks, leaving no direct evidence linking them to the crime’s orchestrators. The prosecution’s investigation was exceptionally challenging, lacking witnesses or insiders and devoid of financial trails. The case hinged almost entirely on circumstantial evidence, primarily telecom evidence and call data records. This reliance on modern technology was unprecedented in the history of international justice, raising numerous novel legal issues.   CJLPA :   At the end of the proceedings, the Trial Chamber judges unanimously found the guilt of Salim Ayyash, yet acquitted three other  alleged members of Hezbollah, due to the requirements of the highest standard of proof. From your experience working in the STL, what could have been done differently on the prosecution’s side?   JS : To complete your question, it is important to recall that the appeals chamber later reversed the decision of the trial chamber and convicted two additional accused, Hassan Merhi and Hussein Oneissi. Regarding the flaws in the prosecution’s case, it’s also crucial to recognise the significant challenges the prosecution encountered while investigating this complex case. The absence of insiders and the real security threats to anyone willing to cooperate with the prosecution were serious hurdles. However, I also believe that much of the criticism directed at the STL, in particular at the Office of the prosecutor, was warranted. My primary critique of the STL concerns its detachment from Lebanon and the Lebanese culture. The Tribunal generally failed to consider the unique aspects of Lebanese legal culture and conducted its proceedings in complete isolation from Lebanese civil society. This approach quickly led to a strong disinterest among the Lebanese population in the proceedings, and, as a result, the STL eventually lacked the public support necessary for the continuation of its activities.   CJLPA : A big question that also came out of it was the difficulty with the funding. Particularly the STL funding model was for Lebanon to meet 49% percent and the remaining states to meet 51%. Are there alternative ways that we could consider to provide the funding in order to enable access for justice in such circumstances in the future when we want to continue setting up special tribunals?   JS : Let’s put this into perspective. Given my wife is Lebanese, I’m acutely aware of the challenges faced by the Lebanese population, especially the severe financial crisis currently underway. So, the fact that the Lebanese people contributed 49% of the budget is significant. This means that of the $60 million annual budget, almost $30 million was funded directly by Lebanese taxpayers, which undoubtedly affects their daily life. While it’s true that justice costs money—a minor expense compared to funds allocated for other purposes, like war and finance—it’s still a substantial amount. We must always remember this and strive for greater efficiency, considering the high costs of these courts and the fluid nature of political priorities. This highlights the complexity of the international context we navigate. In this regard, it’s crucial that, alongside securing funding for international courts and tribunals, we remain conscious of competing against other global crises. For instance, the current focus on Ukraine and the significant financial support it receives can sometimes be at the expense of other crises worldwide. I concur that securing sustainable funding for international justice through a regular budget, similar to what the ICC seeks to establish, is vital. Yet, we must also recognise that we operate within a political landscape where funding is inherently tied to states’ political priorities, making the financing of international justice inherently unstable.   CJLPA :   As we know, there were good reasons for establishing the court, amongst them the absence of the Lebanese people’s trust in their own judiciary. If we look outside of Lebanon to other countries in the Middle East, is there scope for other tribunals to be established in countries such as Syria, Iran, Saudi Arabia, where we see various conflicts and violations of human rights occurring to date?   JS : Yes, of course, but this underscores once more the tight connection between international criminal justice and its geopolitical context. The absence of tribunals for Syria, for Palestine, Yemen and other situations mentioned, stems from political stalemates at either the regional or international level, particularly due to the vetoes by certain states, namely the US, Russia, and China, at the United Nations Security Council. This is likely why a special tribunal was established for Lebanon and not for Syria.   Nevertheless, international practitioners and diplomats are endeavouring to be innovative in ways that tackle these challenges and circumvent the deadlocks. For example, in the case of Syria, the General Assembly of the UN established an International, Impartial, and Independent Mechanism (IIIM) in Geneva gathering evidence, acting as a central repository, and sharing it with national jurisdictions. With the support of this mechanism, there have been successful prosecutions and trials against Syrian individuals involved in crimes, for instance in Germany and France. Other methods are also being explored to achieve accountability for crimes without necessarily requiring a UN Security Council resolution; in Ukraine, for instance, the European Union and its allies are attempting to establish a hybrid court. With legal creativity and political determination, it is always feasible to devise mechanisms for accountability.   The underlying factor in all these efforts is political will, which, especially in democracies, originates from the population. Raising awareness and disseminating information are crucial, as this informs the public about international crimes and human rights violations worldwide, motivating them to demand greater accountability. Democratic governments are likewise inclined to advocate for similar mechanisms. Even economic sanctions could serve as a valuable tool. The advocacy work of individuals like yourself, journalists, practitioners, and human rights activists plays a vital role, as it influences public opinion, which, in turn, hopefully impacts government actions.   CJLPA :   The United Nations Security Council will likely not be an option with the permanent veto from certain states, such as Russia and China. Do you see merit in alternative avenues such as the General Assembly voting to request an advisory opinion from the International Court of Justice? Would this be a potential solution for providing that political willingness that you’re talking about and if so, to what extent?   JS : Yes, advisory opinions are indeed an important legal mechanism. Though they have no binding effects and thus limited impact, like the advisory opinion on the wall in the Occupied Palestinian Territory, they hold significant legal authority in a way, because they represent a United Nations court’s delineation of the law. This is immensely valuable. It presents a pathway, and I believe the General Assembly should be empowered to take more action, considering the Security Council, as a political body, is somewhat anachronistic, reflecting an era, a world that no longer exists. Reforming the Security Council without the consensus of its five permanent members is impossible. Nonetheless, the United Nations remains the first solution and tool we possess. We must be inventive with the tools at our disposal and explore all avenues for the international community to circumvent the potential stalemate caused by a few countries.   The Rome Statute exemplifies this perfectly. Certain countries concluded that waiting for the United Nations Security Council to establish ad hoc tribunals for each new conflict or situation was untenable. Thus, they opted to establish a new treaty-based jurisdiction, aiming for eventual universal acceptance. The fact that, as of today, 123 states are parties to this court is quite remarkable over the last 30 years. I am an optimist at heart. I believe in the power of creativity, even outside the UN framework, to advance the cause for new courts on a treaty basis.   CJLPA : An important issue that came up at the STL was the definition of terrorism. Defining terrorism is highly complex and controversial, both in the domestic and international level. When considering at the definition of terrorism being assessed in the domestic criminal process, Paul Rusesabagina, the Rwandan opposition leader and a hero to most, was sentenced to five years in prison because he was guilty of terrorism. Then, in the United States, innocent men were kidnapped and held without charge for years in Guantanamo Bay because they were allegedly terrorists. The existence of this definition has provided an opportunity to lock up the wrong people. What are your views on the definition of terrorism, particularly in terms of international law?   JS : You’ve brought up an issue I’ve long been interested in. My Master’s thesis in 2005 focused on the universal definition of terrorism. Being Franco-Algerian, I’m aware that both of my countries have endured terrorism, a subject I consider significantly important. Conversely, there are countries that apply the definition of terrorism against any form of political opposition, making it a contentious issue not just internationally but domestically as well.   Regarding your specific question, an important contribution of the Special Tribunal for Lebanon was the Appeals Chamber’s effort to establish a universal definition of terrorism. The Appeals Chamber found that a customary rule of international law has evolved defining and outlawing transnational terrorism including in times of peace and that terrorism was the commission of a criminal act through means which are liable to create a public danger, committed with the intent to spread fear among the population or coerce authority. However, the primary challenge here is political rather than legal, centred on whether state terrorism exists and whether armed groups fighting against colonisation or illegal occupation fall under the definition of terrorism. These issues create legal tension on the global political scene, explaining why, despite decades of effort at the United Nations, there’s still no universal definition of terrorism or a convention on international terrorism.   So in a nutshell, the issue is predominantly political, and I understand the reasons. Yet, I believe there are sufficient legal tools at both domestic and international levels to address this type of criminality. Domestically, nearly every state has its own definition of terrorism. Internationally, legal concepts exist that can encompass terrorist acts. The Geneva conventions prohibit acts or threats of violence the primary purpose of which is to spread terror among the civilian population is a war crime in both international and non-international armed conflict. Acts of terror, whether committed during armed conflict or not, could also be considered as crimes against humanity, under specific conditions. Thus, legal frameworks are in place to address aspects of criminality associated with terrorism. Nonetheless, it’s crucial for the international community to persist in its efforts to address terrorism, a fundamentally global issue requiring a unified response. The United Nations or international instruments represent the best means to this end.   CJLPA : Reflecting back on history, there was a time when George Washington or Nelson Mandela were considered terrorists , so it’s clearly an evolving definition. Do you think there’s still an ongoing need to find a universal definition for terrorism, or do the coherent legal crimes we have in place already address what we categorise as ‘terrorist attacks’?   JS : At the domestic level, prosecuting individuals committing terrorist acts is rarely difficult from a legal perspective, as states are keen on combating domestic terrorism. Conversely, the real challenge lies in ensuring that domestic proceedings adhere to human rights standards, particularly regarding the fair trial rights of individuals accused of terrorism. It’s essential to ensuring that terrorism is not used as a pretext to prosecute any form of domestic political opposition.   Internationally, a universal definition of terrorism agreed upon by the international community would be ideal. Meanwhile, it’s crucial for the UN to address specific issues like financing terrorism, state support of terrorism, restricting terrorist groups’ access to chemical or nuclear weapons, or countering violent extremism for example. These pressing issues also sometimes lack a uniform response level. The UN, through entities like the Counter-Terrorism Committee Executive Directorate (CTED) and the United Nations Office on Drugs and Crime (UNODC), is actively working on these fronts, signifying considerable global efforts to tackle various terrorism forms.   However, defining terrorism and identifying who is considered a terrorist remains challenging for the UN. For example, during my time with the Commission of Inquiry for Mali, the distinction between terrorist groups and violent armed groups by the UN Mission in Mali (MINUSMA) was based on whether they had signed the peace agreement with the government. While understandable, this criterion is somewhat incongruent from an International Humanitarian Law (IHL) perspective, as groups with diverse political motives can commit acts violating international law. Therefore, adhering to the language of IHL and the Geneva Conventions, which are neutral and universally accepted, seems more adequate.   CJLPA :   I also want to discuss Palestine and in particular your role in the UNRWA (United Nations Relief and Works Agency for Palestine Refugees in the Near East). Could you share a few crucial reflections you came to when you were working in this field.   JS : My work with UNRWA was a bit different from anything I’ve done previously in my career, in the sense that it almost exclusively focused on providing humanitarian relief, and not doing the human rights and ICL work that I’d done in my career before that. However, this experience gave me a better vision of the needs of people beyond justice. I mean, justice is extremely important for the Palestinian population in Gaza, who have been suffering decades of serious crimes and gross human rights violations and abuses, but they also have pressing needs for food, for education, and for health. Despite significant challenges, UNRWA has done an incredible work in providing these services in the absence of a state, due to the political context in Palestine.   CJLPA :   Can you tell us a bit more of why the UNHCR is not responsible for Palestinian refugees in this sector?   JS : Well, the explanation is straightforward from a legal standpoint. The Palestinian refugees do not fall under the mandate of the UNHCR. UNRWA was established before the HCR and specifically to provide humanitarian relief to Palestine refugees until a just and lasting solution to their situation and their plight can be found. UNRWA and UNHCR have distinct mandates, with the latter not tasked with addressing the needs of Palestinian refugees or their right to return. Additionally, UNHCR is already responsible for nearly 60 million refugees, including facilitating their right to return and resettlement in various countries. Essentially, these are two agencies with two distinct mandates.   CJLPA :   In terms of the human rights violations committed by Israel in Palestine, do you believe there are specific legal frameworks we have in play that could accelerate addressing the  violations, or are only political mechanisms feasible currently?   JS : I know that there is always a tension between diplomats and lawyers, peace and justice, but I believe that what is essential is to underline their complementarity. My role as a human rights or international criminal lawyer, as a practitioner, has never been about engaging in politics or diplomacy—that’s the realm of diplomats. As a lawyer, my focus is on criminal accountability, including investigating, prosecuting, and defending, which is distinct from diplomatic duties. These roles, in my view, support each other.   Regarding the specific situation in Israel and Palestine, there’s a need for diplomats to enhance their efforts significantly to find a solution for the plight of Palestinians. Meanwhile, it’s crucial for criminal lawyers and human rights organisations to keep highlighting the current events in Palestine and Israel. Without a political resolution, and as long as crimes, human rights violations and abuses, illegal occupation, and colonisation persist, the cycle of violence will likely continue. Our role as human rights defenders and international lawyers is to combat impunity, which ultimately supports the pursuit of peace in the Middle East and beyond. The International Criminal Court (ICC) has a mandate to investigate crimes committed in Palestine, and there should be more political pressure on the ICC Prosecutor to expedite these investigations. In parallel, we must continue documenting crimes and seeking justice. Diplomats and politicians should continue striving for a political solution to this longstanding conflict. As part of civil society, we must also advocate within our nations to not only promote peace but also to prioritise the justice agenda, as both are crucial for lasting resolution.   CJLPA :   Thank you, Mr Johann Soufi, for your insightful and fascinating discussion addressing different significant issues related to international criminal law and human rights law. Your elucidation not only highlights existing challenges but also sheds light on alternative perspectives for legal professionals, states, persons,  and everyday people in civil societies to navigate barriers. This is crucial in reinforcing our commitment to justice in the international arena.   JS : Thank you so much for your time and for your invitation. This interview was conducted by Nadia Jahnecke and Nour Kachi. Nadia is 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. Nour is a Legal Researcher for CJLPA 3. In addition to his role at CJLPA, he is currently working on qualifying as a lawyer in the US and UK.

Introduction Russia’s aggression against Ukraine, especially its full-scale unfolding since 2022, has highlighted many important issues of international law. Among them is a question as to how reparations—which are at the crux of transitional justice’s survivor-centric ethos—can be effectively provided to atrocity victims amid ongoing hostilities. This article analyses the viability and modalities of individual reparations in the Russia-Ukraine armed conflict in three parts. First, it situates the right to remedy and reparation under international law and Ukraine’s and Russia’s respective obligations. This section argues that, under current international law, urgent interim reparations and certain other transitional justice measures can and, in the context of Ukraine, should be implemented while the armed conflict is still ongoing. Second, the article discusses key developments in Ukraine’s transitional justice and reparations vision during the first phase of the armed conflict in 2014-2021. Special attention is paid to how the timing and modalities of Ukraine’s proposed transitional justice measures—and, in particular, reparations—were impacted by geopolitical constellations at the time. Finally, the article discusses key developments, challenges, and ways forward concerning introducing individual reparations in Ukraine post-full-scale invasion. The piece concludes that to provide effective redress, such reparations should be gender-sensitive, intersectionally consider structural inequalities, and apply equally to persons harmed since the beginning of Russia’s aggression in 2014.   I. Atrocity Victims’ Right to Remedy and Reparation under International Law   Reparations under international law are two-pronged. First, there are interstate reparations, which are channelled into rebuilding state infrastructure and institutions, compensating for the loss of production, impeded trade, and other system-wide harms caused by an armed conflict or an atrocity situation. Second, there are individual reparations, which are due to individual victims or their groups who have suffered gross violations of their human rights.   Individual reparations are a part of a person’s wider right to remedy. The right to remedy also includes equal and effective access to justice and the availability of information about what constitutes a violation of one’s rights and what reparative measures are available to redress them.[1]   In the Chorz ó w Factory dispute between Germany and Poland, the Permanent Court of International Justice confirmed that ‘it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation’.[2] The Court went further, explaining that ‘reparation is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself’.[3] In the early 20th century, the 1907 IV Hague Convention respecting the Laws and Customs of War on Land established the precursors for individual redress for endured harm. The IV Hague Convention confirmed the ‘Contracting Powers’s responsibility for the activities of their military, including for the alleged breaches of the rules governing the conduct of hostilities, treatment of POWs and civilians and occupation’.[4] Given the state-centric nature of international law of the time, the IV Hague Convention formulated the respective redress provision not around a person’s right to seek vindication for a suffered violation but around the respective state party’s obligation to compensate.[5]   It was not until the middle and the second half of the 20th century, with the adoption of the international human rights law (IHRL) and international humanitarian law (IHL) treaty frameworks, as well as the Rome Statute of the International Criminal Court (ICC) that a delineation between interstate and individual reparations solidified. The humanisation of international law has been unfolding alongside the growing recognition of a human right to remedy and reparation. A person’s right to get the alleged violations of their rights considered by a court or another designated state authority and, if a violation is confirmed, to receive prescribed remedy is recognised in the key IHRL instruments such as the 1948 Universal Declaration of Human Rights (article 8), the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (article 6), the 1966 International Covenant on Civil and Political Rights (article 2(3)), the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (article 14), and the Convention on the Rights of the Child (article 39).   Compared to the aforementioned IHRL instruments, IHL regulation of the right to remedy is different in its verbalisation and scope. Additional Protocol I to the 1949 Geneva Conventions applicable to international armed conflicts essentially reiterates the wording of the IV Hague Convention. The Protocol specifies that a warring state party is responsible for the acts of its military and, if it violates the Geneva Conventions or this Protocol, must pay compensation.[6] The Additional Protocol II, applicable in non-international armed conflicts, does not have a similar provision. This raises questions about the availability and scope of remedies and reparations for harms caused exclusively by non-state actors. In the absence of immediate IHL regulation, the regular IHRL remedy framework discussed above remains applicable.   The issue of equal access to remedies in all armed conflicts and atrocity situations was further clarified by the International Criminal Court (ICC), which exercises jurisdiction over the gravest crimes under international law—war crimes, crimes against humanity, genocide and, in certain instances, aggression. The ICC’s Rome Statute and Rules of Procedure and Evidence make reparations available to direct and indirect victims regardless of the type of context in which they were harmed.[7] Instead, the ICC considers ‘the scope and extent of any damage, loss or injury’ suffered by victims, individually or collectively, from the crimes falling within the jurisdiction of the Court and victims’ respective needs.[8] The ICC’s reparations may include restitution, compensation, and rehabilitation,[9] suggests the room for the needed flexibility of reparations’ types and combinations in a particular context.[10]   2005 became a milestone year for the right to remedy. The UN General Assembly (UNGA) adopted, without a vote, the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Humanitarian Law and Serious Violations of International Humanitarian Law (Basic Principles). As Clara Sandoval explains, this instrument, adopted in the form of the UNGA non-binding resolution, was a result of a 14-year-long collaboration between states, intergovernmental organisations, NGOs and academics.[11] Symbolically, this work was co-initiated by Cherif Bassiouni, one of the shapers of international criminal law and the ICC framework.[12] Bassiouni’s push for a wholistic redress for victims is significant given the tendency to see atrocity trials as a unique or even exclusive form of justice, to the detriment of their mutually catalysing interplay with truth-seeking, reparations, and guarantees of non-repetition. The Basic Principles state that they do not create new obligations but are based on existing ones formulated in the discussed IHRL and IHL instruments and the Rome Statute. The Basic Principles root the right to remedy and reparation in states’ obligation to respect and ensure respect for and implement IHRL and IHL.[13] This includes domestic incorporation of IHRL and IHL and maintaining related procedures, including access to justice, fairness, equality, and swiftness.[14] The UNGA instrument specifies five forms of reparations: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition, and emphasises their role in atrocity prevention.[15] Crucially for the Russia-Ukraine armed conflict and other atrocity situations, a violator’s inability to provide reparations immediately should not stall the reparations process.[16] The solidifying humanisation of international law and survivor-centricity of redress and wider transitional justice measures require that states establish national reparation and assistance programmes as soon as possible and then get compensation from the responsible party.   The above instruments have catalysed further sensitisation of individual reparations at international, regional, and domestic levels. In 2014, the UN Secretary-General presented the Guidance Note on one of the most stigmatised, underreported, and unaddressed crimes—conflict-related sexual violence (CRSV).[17] Dr Denis Mukwege and Nadia Murad, the recipients of the 2018 Nobel Peace Prize for combating sexual violence as a weapon of war, have emphasised the crucial role of urgent interim and wider reparations for CRSV survivors. The ICC reparations framework has been solidified through the cases of Lubanga  (2012-2015), Katanga  (2017), Al Mahdi  (2017), and Ntaganda (2021).[18] Colombia exemplifies an effort to centre one’s transitional justice framework around remedies.[19] Regional courts have been cognisant of these developments, looking for ways to reconcile their jurisprudence with domestic reparation programmes.[20] II. The First Phase of Russia’s Aggression against Ukraine, 2014-2021: The Precursors of Individual Reparations   Certain nations, including Eastern European ones, still associate reparations largely with massive post-war interstate compensations. This perception, coupled with the lack of international action on the initial acts of Russia’s aggression in Ukraine’s Crimea and Donbas region in 2014-2021,[21] could have hardly shaped survivors’ coherent demands for specific individual reparations, let alone channelled the funding needed for them. The lack of international attention to the first phase of Russia’s aggression and accompanying crimes often overlooked in the post-2022 debates on political, military, and legal aid for Ukraine has also played a role in Ukraine’s domestic policy choices. With limited resources and only burgeoning expertise on atrocity crimes, in 2014-2021, Ukraine’s prosecution and civil society focused on the documentation of alleged war crimes and crimes against humanity, development of domestic proceedings, and submitting communications to the ICC to catalyse the Court to open a fully-fledged investigation—which it did only after the all-out invasion.[22]    Essentially, in 2014 Kyiv faced the unparalleled situation of an international armed conflict, the comprehensive justice response to which required financial resources and expertise, which Ukraine, as a state and human rights community, did not have at the time. In such circumstances, it is only natural that policymakers, prosecution, and civil society choose to make the first steps in the most familiar domain—criminal justice. Even with very limited resources available during the initial eight years of the armed conflict, which might be hard to imagine compared to the outpouring of support since 2022, Ukrainian investigators, prosecutors, and human rights lawyers focused on capturing the facts and patterns of and intentions behind Russian crimes, to facilitate international understanding and action. With time, however, Ukrainian state and civil society stakeholders, catalysed by the solidifying voices of the survivor community, realised that justice had wider, mutually nourishing dimensions. This realisation became more nuanced with Ukraine’s emerging transitional justice discourse and the solidifying of the Women, Peace, and Security agenda.   Noticing the lack of cohesion even within the criminal accountability domain and the need for a more harmonised and layered justice vision, in 2019, the newly elected President Zelensky announced that Ukraine would be developing a transitional justice policy.[23] The precursors for such a policy task came from the civil society and academic community, who already, in 2016 and 2017, raised the issues of other dimensions of justice, such as truth-telling and reparations. Zelensky’s efforts helped transform academic and civil society debates into policy mapping. Two foundational drafts incorporating key pillars of transitional justice were developed. However, Ukraine did not manage to approve, let alone implement them before 2022. Naturally, the drafts would require substantive reshaping, considering the new challenges and needs brought about by Russia’s all-out aggression.   Even without formal approval, Ukraine’s pre-2022 transitional justice work was important. First, it verbalised the key components of holistic justice—reparations, truth-seeking, criminal accountability, memorialisation, and guarantees of non-repetition—for Ukraine’s policymakers, general public, and, crucially, survivor community. It was through the initial transitional justice policymaking that these persons, especially individuals affected by Russia’s atrocities, got a more layered understanding of what redress meant and what measures they were entitled to—and could demand. Second, the very wording ‘reparations’ was increasingly used. For the first time, such term use demonstrated reparations’ connection with not only interstate but also individual redress. Third, transitional justice and its components were increasingly mentioned in Ukraine’s by-laws and other policy instruments. Such instruments include the National Human Rights Strategy, the Strategy on the De-Occupation and Reintegration of Crimea and Women, and Peace and Security National Actions Plans (WPS NAPs).[24] With respect to reparations, these instruments sometimes use euphemisms or refer to specific forms of reparations, e.g., ‘the compensation of damage caused in connection with the armed aggression of the Russian Federation’, ‘the protection and restoration of violated rights’ or ‘rehabilitation’.[25]  Such word use has several important considerations. The variations in the wording ‘compensation of damage/harm/injury’ are perhaps the clearest in terms of the word’s ordinary meaning. Without additional prior ‘explainers’ on reparations terminology, the general public and especially survivors would likely understand this phrasing as redress for the harm they suffered because of atrocities. While the clarity and understanding by those most affected are important, the ‘compensation’ wording is also misleading, for it essentially narrows reparations to financial compensation to the detriment of their other important forms such as restitution, rehabilitation, satisfaction, and non-repetition guarantees. The narrowing of reparations to ‘harm compensation’ wording does not seem to be the malice of Ukraine’s policymakers. Instead, it appears to be a transitional compromise that introduces individual reparations thinking, taking the time for the more specific new terminology and its perception to sink in.   Notably, both before and after the full-scale invasion, it has been largely the WPS and initiatives addressing conflict-related sexual violence (CRSV) that have been using the term ‘reparations’ consistently, as envisaged in international law. Ukraine’s CRSV survivor community, especially their female representatives, have turned out to be rather organised and vocal about the harms they suffered and, thus, engaged with international peers and their reparations experiences quickly.[26] Ukrainian CRSV survivors from SEMA Network Ukraine have collaborated closely with Dr Denis Mukwege, a strong proponent of holistic justice and healing. The Mukwege Foundation and Global Survivors Fund, co-founded by Nadia Murad and Dr Denis Mukwege, have supported reparations thinking among survivors since way before the full-scale invasion. Together with survivors and Ukraine’s leading human rights NGOs Truth Hounds, Blue Bird, and the Eastern-Ukrainian Centre for Civic Initiatives, the Global Survivors Fund conducted the first study of reparations needs and preferences among Ukrainian CRSV survivors.[27] These processes reverberated with policymakers: the Government Commissioner on Gender Equality Policy supported the inclusion of the reparations focus and language into Ukraine’s WPS NAPs and discourse even before 2022. Such policy normalisation of reparations language and, thus, readiness for overdue reparations framework have proved particularly useful with the full-scale invasion.   Moving away from policy instruments, it is important to comment on whether and how they translated into actual reparations initiatives on the ground. As Ukraine had not approved even a framework transitional justice policy, of which reparations would be an integral part, the country had not set a nationwide reparations programme before the all-out invasion. Instead, Ukraine had the precursors of reparations in the form of what could be rather described as sporadic assistance initiatives.[28] The most notable of such initiatives focused on helping victims of Russia’s unlawful detention with a one-time financial support of 100,000 UAH (a little more than 3,300 EUR at the time). While not completely devoid of bureaucratic protractions, the commission assessing compensation claims worked rather swiftly. Commendably, its members included not only state officials but also human rights lawyers, civil society representatives, and psychologists, all of whom worked with detention survivors and understood their trauma and needs.   While this initiative demonstrated Ukraine’s resolve to support survivors amid limited resources and the uncertainties of the ongoing aggression, it had several issues. First and most obviously, the programme was available only to survivors of Russia’s unlawful detention, which left the trauma and needs of other victims unaddressed. Second, to qualify for support, a survivor had to prove that they were detained for their pro-Ukrainian position. While, as survivor stories confirm, Russia indeed targeted most of them for the actual or alleged support of Ukraine, it is important that state programmes remedy all survivors, even those captured for other reasons or by accident. Third, the effects of detention—low temperature, moist, overcrowdedness, undernourishment, lack of general and gender-specific hygiene, let alone widespread torture and other atrocities—require long-term costly treatment. The 3,300 EUR available under the initiative can rarely cover this.   Other assistance programmes included symbolic modest scholarships for pro-Ukrainian political prisoners—ethnic Ukrainians and indigenous Crimean Tatars.[29] Scholarships were payable for a year to liberated survivors and accumulated for the period of captivity, and payable for a year after liberation for those still held in Russian captivity. While commendable as a step in the right direction, this initiative had many of the shortcomings discussed in relation to the detention compensation programme above.   All in all, Ukraine’s Government and civil society were approaching the full-scale invasion with the correct survivor-centric thinking and a burgeoning transitional justice framework. Even if certain assistance initiatives were not holistic and the national reparations programme had not yet been adopted, they formed the right values-, understanding- and purpose-based foundation with which Ukrainian society met Russia’s all-out assault on 24 February 2022.   III. 2022 onwards: Solidifying the Individual Reparations Framework   24 February 2022 has generated an amplified set of challenges connected with the gravity and territorial scale of the crimes and the number of people, fauna, flora, and cities and villages affected. Atrocity documentation initiatives by various Ukrainian and international actors and not just domestic human rights NGOs have skyrocketed.[30] Even the most well-intentioned initiatives, given their sheer number, intensity, and combination, have often caused re-traumatisation. The severity of crimes, the number of survivors and the scale of infrastructural destruction have made the scale of Russia-caused harm impossible to ignore anymore. These developments have revitalised domestic and international discussions on reparations—and their urgency.   Several notable developments around individual reparations have taken place since 2022. First, the clear decision has been reached that Russia must pay for all the damage caused, and discussions have taken place regarding the legal avenues via which Russia’s assets could be repurposed to fund the infrastructural recovery of Ukraine and redress to survivors.[31] On 14 November 2022, the UNGA adopted the resolution ‘Furtherance of remedy and reparation for aggression against Ukraine’.[32] The resolution recognises the need to create ‘an international mechanism for reparation for damage, loss or injury, and arising from the internationally wrongful acts of the Russian Federation in or against Ukraine’.[33] The instrument further recommends that the UN member states cooperate with Ukraine to create ‘an international register of damage’ to record ‘evidence and claims information on damage, loss or injury to all natural and legal persons concerned, as well as the State of Ukraine, caused by the internationally wrongful acts of the Russian Federation in or against Ukraine’.[34] Such a register of damage was created under the Council of Europe framework, together with the EU, Canada, Japan, and the US, on 16 May 2023.[35] The Register is situated in The Hague and is ‘the first component of a future international compensation mechanism’.[36]   Second, Ukraine’s Parliament adopted the law on the compensation for damage or destruction of property caused by Russia’s aggression.[37] The state has aimed to make the procedure swift and administrative in nature, with the possibility of submitting claims via the state digital platform Dia.[38] The initiative is truly pertinent and addresses one of the most pertinent and foundational needs: housing. Concerns, however, have been raised about the length of required expert assessment of the affected property as well as about the programme’s (un)availability for Ukrainians residing in occupied territories.[39]    Third, the policymaking focus on urgent interim reparations, which could meet survivors’ most pressing needs and avoid irreparable harm, has increased. CRSV survivors have become co-shapers and are expected to become the first recipients of such pilot urgent interim measures.[40]   The described developments paving the way for individual survivors are commendable. Fundamentally, following the ethos of the Basic Principles and realising that Russia is not going to provide reparations now, Ukraine has assumed its responsibility to ensure redress to survivors, as much as possible during ongoing hostilities. The implementation of this responsible vision, however, has not been devoid of challenges.   Despite the pre-2022 transitional justice policymaking and awareness raising discussed in Section II, Ukrainians still predominantly associate reparations with post-war interstate payments, which are ordinarily channelled at infrastructural recovery. This narrow vision has impacted post-2022 survivors’ perception of what they can—and should—demand. Similarly, it has impacted the speed and creativity of policymakers’ responses. Hence, the confusion of interstate, reconstruction-oriented and individual reparations noticeable in 2014-2021 lingers. The UN Commission of Inquiry notes that it is apparent even in respective UNGA and Council of Europe instruments.[41] It is in the utmost interests of Ukraine, with a view to both avoiding societal fractions and, crucially, helping its own people, to clarify the difference between reparative frameworks—and ensure the provision of individual reparations, starting with urgent interim ones.   As the Chair of the UN Commission of Inquiry on Ukraine has aptly put it, Ukraine and its international partners should make sure that ‘recognisably necessary national reconstruction programmes or property restitution programmes are not designed to the detriment of victims’ reparations’.[42] Ukraine ‘should initially concentrate on the harms and violations that are more central to the victims’ dignity and well-being rather than on property issues’.[43] For that, a non-bureaucratic and user-friendly victim registry should finally be established. This process should be accompanied by explanations of the nature and scope of harm, for survivors do not always define certain conduct—such as forced nudity, threat of sexual violence, or being compelled to watch it—as violations. Many aspects of urgent support, such as general mental health advice, couple counselling, and special support for parents or persons with caring obligations, can already be provided based on such a victim registry.   It might be potentially problematic that workstreams on reparations for certain types of international crimes are more dynamic than for others. Both before and after the full-scale invasion, Ukrainian CRSV survivors (SEMA Ukraine) and their domestic (Ukrainian Women Lawyers Association ‘JurFem’, Eastern Ukrainian Center for Civic Initiatives) and international (Global Survivors Fund, the Mukwege Foundation, REDRESS) partners have been particularly proactive in advancing individual reparations.[44] As the CRSV has, sadly, become much graver and visible since 2022, survivors’ willingness to bring the reparations process to at least some degree of fruition has amplified. As of January 2024, it is viable that CRSV survivors will set a pilot for the victim registry and, to begin with, for urgent interim reparations.[45] This development is commendable and welcomed, including by the UN Commission of Inquiry on Ukraine,[46] and is particularly impressive at this moment, given how stigmatised, underreported, and unaddressed CRSV usually is. However, it is important that, in relation to CRSV, these promising reparation initiatives focus not only on women and girls but also intersectionally address sexual violence perpetrated against men, boys, and LGBTQI+ persons. Furthermore, it is crucial that reparations advocacy and pilots do not cease with the currently more proactive CRSV community. Ukraine and its partners must make urgent interim reparations and wider reparations programmes available to all survivors of atrocity crimes perpetrated amid Russia’s aggression as soon as possible.   Finally and crucially, certain reparation initiatives seem to—wrongly—focus on harms committed since the full-scale invasion. For instance, this temporal threshold seems to have been adopted for the damage registry established by the Council of Europe[47] and for Ukraine’s destroyed or damaged property compensation scheme.[48] Such an approach mirrors the wider—misguided—view of Russia’s aggression against Ukraine exclusively through the prism of the developments and crimes unfolding since 24 February 2022. This is factually and legally wrong. Russia occupied Crimea[49] and established effective control over some Donbas regions in 2014.[50] These initial acts of aggression were complemented and expanded in 2022. The 2014 and 2022 acts of aggression ‘are inseparable and form one situation, which also corresponds to the temporal scope of the situation of Ukraine before the ICC’.[51]    The same continuity applies to the patterns of conflict-related crimes and related victimhood. Any artificial division of the 2014-2021 and post-2022 events blurs Russia’s intentions, crimes and respective reparation obligations owed to Ukrainian victims and their families. Solidifying this division in the individual reparations domain will be detrimental to other crucial issues. Among such adjacent issues are the temporal scope of a prospective aggression tribunal and Russia’s interstate reparations owed to Ukraine. Furthermore, some of the most activist survivor communities are led by those assaulted in Crimea and Donbas before the all-out invasion. If maintained, the focus exclusively on post-2022 violations might inadvertently create victim competition and, thus, cause deep fractions in Ukraine’s survivor community and wider social fabric. Crucially, this approach undermines the whole survivor-centric and driven ethos of transitional justice. If Kyiv truly wants to gradually provide holistic support to the people affected by unimaginable crimes and keep its wounded yet resilient social fabric together, it should avoid any artificial delineation between those victimised before and after the full-scale invasion and ensure that all survivors have equal access to remedy and reparations. Conclusions   Rooted in the post-World War II human rights framework, the ICC reparations-enhanced legal regime, regional courts’ jurisprudence, and domestic transitional justice policies, the individual’s right to remedy reparation for atrocities has solidified. These developments, together with the relentless proactivity of the survivor community, civil society, and policymakers, have allowed Ukrainian victims to demand individual reparations already amid the ongoing aggression. While backed by international law, meeting these demands is not devoid of external and internal difficulties. As of January 2024, Ukraine’s state and societal standing is strong enough to implement reparation programmes. Any implementation should start with clarity—among Ukrainian stakeholders and their international partners, in their policy steps and public communication—about the difference between interstate and individual reparations. Among the underlying issues for both types of reparations is the question of funding—and an international resolve to repurpose Russia’s frozen assets for that.[52] Ukraine’s partners must act upon assets repurposing to ensure that both Ukraine’s multi-billion infrastructural recovery and redress to individual victims of Russia’s atrocity crimes are funded by the perpetrator. However, the costs of individual reparations, especially urgent interim ones, are much lower than the funds needed for Ukraine’s economic rebuilding. The needs of torture, CRSV, and other survivors are acute and pressing. Therefore, any protractions with assets repurposing should not be used as an excuse to delay the less costly support to individual victims, starting with urgent interim reparations. It is paramount that all such initiatives apply equally to all victims assaulted since the beginning of Russia’s aggression in 2014, irrespective of the identity of the perpetrator. Both immediate, urgent, and more comprehensive individual reparation programmes should be intersectional and address multiple forms of harm and discrimination. Reparations should additionally be tailored to support particularly stigmatised victims such as women, girls, men, boys, and LGBTQI+ CRSV survivors and children born out of war. Addressing the deep wounds in a layered and inclusive way, which recognises the inherent gendered dimensions of victimisation and victims’ needs, will help the Ukrainian society come out of this darkness even more devoted to the guiding values of human dignity and human rights for all. Kateryna Busol Kateryna is a Ukrainian lawyer. She is also an Associate Professor at the National University of Kyiv-Mohyla Academy and a British Academy Research Fellow at the British Institute of International and Comparative Law. As a scholar and practitioner, Kateryna works on the weaponisation of cultural heritage, conflict-related sexual violence, reparations, and wider transitional justice. Kateryna has collaborated with the Clooney Foundation for Justice, UN Women, Global Survivors Fund, and Global Rights Compliance. She has also advised Ukraine’s investigators and prosecutors on armed conflict-related proceedings. Kateryna was a visiting researcher at the Leibniz Institute for East and Southeast European Studies, a fellow at Chatham House, and a Visiting Professional at the Office of the Prosecutor of the International Criminal Court. She is also the founder of # InternationalLawTalks and a Board member of the Cambridge Society of Ukraine, which advances educational opportunities for Ukrainian children. Kateryna received her PhD, LLM (distinction), and LLB (distinction) from the Institute of International Relations of Taras Shevchenko National University of Kyiv and an LLM from the University of Cambridge. [1]  UNGA Res 60/147, Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), para 11. [2]   Case Concerning the Factory at Chorzów  (Germany v Poland) (Merits) PCIJ Rep Series A No 17, 29. [3]  ibid. [4]   ‘ A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces ’. Convention (IV) respective the Laws and Customs of War on Land and its annexe : Regulations concerning the Laws and Customs of War on Land (18 October 1907), article 3. [5]  ibid. [6]  Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (8 June 1977). [7]  ICC Rome Statute (21 July 1998), article 75; ICC Rules of Procedure and Evidence, Rule 85. [8]  ICC Rules of Procedure and Evidence, Rules 97.1, 86. [9]  Rome Statute (n 7), article 75.1. [10]  ICC Rules of Procedure and Evidence, Rule 97.2. [11]  Clara Sandoval, ‘The Legal Standing and Significance of the Basic Principles and Guidelines on the Right to a Remedy and Reparation’ (2018) 78 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht ( ZaöRV) 565. [12]  ibid. [13]  Basic Principles (n 1), paras 1-2. [14]  ibid, para 2. [15]  ibid, paras 15-23. [16]  ibid, paras 15-16. [17]  Guidance Note of the Secretary-General ‘Reparations for Conflict-Related Sexual Violence’ (2014). [18]  Marina Lostal, ‘The Ntaganda Reparations Order: a marked step towards a victim-centred reparations legal framework at the ICC’ ( Blog of the European Journal of International Law , 24 May 2021) < https://www.ejiltalk.org/the-ntaganda-reparations-order-a-marked-step-towards-a-victim-centred-reparations-legal-framework-at-the-icc/ > accessed 8 January 2024. [19]  Nelson Camilo Sánchez León and Clara Sandoval-Villalba, ‘Go Big or Go Home? Lessons Learned from the Colombian Victims’ Reparation System’ in Carla Ferstman and Mariana Goetz   (eds), Reparations for Victims of Genocide, Warm Crimes and Crimes against Humanity  (Brill 2020) 569-570. [20]  Clara Sandoval, ‘Two steps forward, one step back: Reflections on the Inter-American Court of Human Rights jurisprudential turn on domestic reparation programmes’ (2018) 22(9) The International Journal of Human Rights 1192-1208. [21]  Kateryna Busol, ‘If Ukraine’s Fate Is not a Menu à La Carte, then Ukrainian Voices Must Be Heard’ ( Blog of the European Journal of International Law , 20 June 2022)   < https://www.ejiltalk.org/if-ukraines-fate-is-not-a-menu-a-la-carte-then-ukrainian-voices-must-be-heard/ > accessed 8 January 2024. [22]  Iryna Marchuk and Aloka Wanigasuriya, ‘Venturing East: The Involvement of the International Criminal Court in Post-Soviet Countries and Its Impact on Domestic Processes’ (2021) 44 Fordham International Law Journal 756. [23]  Kateryna Busol, ‘Mariupol and the Origins and Avenues of Ukraine’s Transitional Justice Process’ ( Just Security , 1 June 2021) < https://www.justsecurity.org/81680/mariupol-and-the-origins-and-avenues-of-ukraines-transitional-justice-process > accessed 8 January 2024 . [24]  Order of the President of Ukraine ‘On the National Human Rights Strategy’ №119/2021 (24 March 2021) Section 4. Strategies dimensions < https://zakon.rada.gov.ua/laws/show/119/2021#Text > accessed 8 January 2024 ( On the National Human Rights Strategy); Order of the President of Ukraine ‘ On the Decision of the National Security and Defence Council of Ukraine of 11 March 2021 On the Strategy of the De-Occupation and Reintegration of the Temporarily Occupied Territory of the Autonomous Republic of Crimea and the City of Sevastopol’, No. 117/2021 (21 March 2021), paras 15, 35, 38 < https://www.president.gov.ua/documents/1172021-37533 > accessed 8 January 2024 ( On the Strategy of the De-Occupation and Reintegration of Crimea); Order of the Cabinet of Ministers of Ukraine No. 1544-r ‘ On the Approval of the National Action Plan for the Implementation of the UN Security Council Resolution 1325 on Women, Peace, and Security for the period until 2025’ (28 October 2020) Operational Goal 3.3, para 27 < https://www.kmu.gov.ua/storage/app/sites/1/18%20-%20Department/18%20-%20PDF/2023/29.03.2023/updated-nap-1325-women-peace-and-security-until-2025.pdf > accessed 8 January 2024 (2021-2025 WPS NAP). [25]  On the National Human Rights Strategy (n 24) Section 4. Strategies dimensions; On the Strategy of the De-Occupation and Reintegration of Crimea (n 24), paras 15, 35, 38. [26] Predominantly in Russia-controlled detention centres and occupied territories in Donbas, Eastern Ukraine. [27]  Amal Nassar, Kateryna Busol, and Alexa Sydor-Czartorysky, ‘Ukraine Study on the Status of and Opportunities for Reparations for Survivors of Conflict-Related Sexual Violence’ ( Global Survivors Fund , May 2022) 61 < https://www.globalsurvivorsfund.org/fileadmin/uploads/gsf/Documents/Resources/Global_Reparation_Studies/GSF_Report_Ukraine_EN_June2022_WEB.pdf > accessed 8 January 2024. [28]  ibid. [29]  Order of the President of Ukraine ‘On Awarding State Levko Lukianenko Scholarships’ №662/2021 (16 December 2021) < https://www.president.gov.ua/documents/6622021-40961 > accessed 8 January 2024. [30]  Justin Hendrix, ‘Ukraine May Mark a Turning Point in Documenting War Crimes’ ( Just Security , 28 March 2022) < https://www.justsecurity.org/80871/ukraine-may-mark-a-turning-point-in-documenting-war-crimes / > accessed 8 January 2024. [31]  Artem Ripenko, ‘Funding Ukraine’s Aid: New Challenges’ ( Blog of the European Journal of International Law , 7 December 2023) < https://www.ejiltalk.org/funding-ukraines-aid-new-challenges/ > accessed 8 January 2024 ;  Human Rights Council, Independent International Commission of Inquiry on Ukraine (UN Commission of Inquiry), Conference Room  paper of the Independent International Commission of Inquiry on Ukraine (29 August 2023) A/HRC/52/CRP.4 ( UN Commission of Inquiry on Ukraine, Conference Room Paper), para 972. [32]  UNGA Res ES-11/5, Furtherance of remedy and reparation for aggression against Ukraine (2022), para 3. [33]  ibid, para 3. [34]  ibid, para 4. [35]  Council of Europe, Committee of Ministers, Resolution establishing the Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation Against Ukraine, CM/Res (2023) 3 (12 May 2023) ( Council of Europe, Resolution establishing the Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation Against Ukraine). [36]  ibid, para 2.5. [37]  Law of Ukraine ‘On the Compensation for Damaging or Destroying Some Categories of Immovable Property Resulting from Hostilities, Terrorist Acts, Sabotage Acts Caused by the Armed Aggression of the Russian Federation against Ukraine, and the State Registry of Property Damaged or Destroyed as a Result of Hostilities, Terrorist Acts, Sabotage Acts Caused by the Armed Aggression of the Russian Federation against Ukraine’ N 2923-IX (23 February 2023)  < https://zakon.rada.gov.ua/laws/show/2923-20#Text > accessed 8 January 2024 ( Law of Ukraine ‘ On the Compensation for Damaging or Destroying Some Categories of Immovable Property Resulting from Hostilities’). [38]  Diia, ‘How to Get Compensation for Property in Ukraine Destroyed by War’  < https://shorturl.at/alsJV > accessed 8 January 2024. [39]  ‘The Delivery of Reparation for Ukraine: Briefing Paper’ (Redress, November 2023) 8 < https://redress.org/wp-content/uploads/2023/12/Reparations-Briefing_EN-v.5.pdf > accessed 8 January 2024. [40]  Draft Law ‘On the Status of Persons Affected by Sexual Violence Related to the Armed Aggression of the Russian  Federation against Ukraine and Urgent Interim Reparations’, No. 10132 (9 October 2023) < https://itd.rada.gov.ua/billInfo/Bills/Card/42862 > accessed 8 January 2024. [41] UN Commission of Inquiry on Ukraine, Conference Room Paper, para 969; Erik Møse, ‘Update by the Chair of the Independent International Commission of Inquiry on Ukraine, at the 54th session of the Human Rights Council’ ( OCHR , 25 September 2023 < https://www.ohchr.org/en/statements/2023/09/update-chair-independent-international-commission-inquiry-ukraine-54th-session > accessed 8 January 2024. [42]   UN Commission of Inquiry on Ukraine (n 41), para 969. [43]  ibid, para 972. [44] Pip Cook, ‘Seeking justice for survivors of sexual violence in Ukraine’ (Geneva Solutions, 16 December 2022) < https://genevasolutions.news/peace-humanitarian/seeking-justice-for-survivors-of-sexual-violence-in-ukraine > accessed 8 January 2024. [45] Draft Law ‘On the Status of Persons Affected by Sexual Violence Related to the Armed Aggression of the Russian Federation against Ukraine and Urgent Interim Reparations’, No. 10132 (9 October 2023) < https://itd.rada.gov.ua/billInfo/Bills/Card/42862 > accessed 8 January 2024. [46] UN Commission of Inquiry on Ukraine (n 41), paras. 968, 973. [47] Council of Europe, Resolution establishing the Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation Against Ukraine, article 1.1. [48]  Law of Ukraine  ‘ On the Compensation for Damaging or Destroying Some Categories of Immovable Property Resulting from Hostilities’ (n 37), Preamble. [49]   International Criminal Court, Report on Preliminary Examination Activities (2016), para 158 < https://www.icc-cpi.int/sites/default/files/iccdocs/otp/161114-otp-rep-PE_ENG.pdf > accessed 8 January 2024. [50]  European Court of Human Rights, Ukraine and The Netherlands v. Russia , Applications nos. 8019/16, 43800/14 and 28525/20, Decision, 20 November 2022, para 695. [51]   Astrid Reisinger Coracini, ‘The Case for Creating a Special Tribunal to Prosecute the Crime of Aggression Against Ukraine (Part II)’ (Just Security, 23 September 2022) < https://www.justsecurity.org/83201/tribunal-crime-of-aggression-part-two/ > accessed 8 January 2024; Charlotte McDougall, ‘The Imperative of Prosecuting Crimes of Aggression Committed against Ukraine’ (2023) 28 Journal of Conflict & Security Law 229. [52] Timothy Ash, ‘Putin’s $300bn Belongs to Ukraine’ ( CEPA , 3 January 2024) < https://cepa.org/article/putins-300bn-belongs-to-ukraine/ > accessed 8 January 2024; Andriy Moiseienko, International Lawyers Project, and Spotlight on Corruption, ‘Frozen Russian Assets and the Reconstruction of Ukraine: Legal Options’ (2022) < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4149158 > accessed 8 January 2024.

Many significant cultural objects have found uncomfortable homes in museums across the world.[1] They have been trapped behind glass, victims of looting, ‘scientific’ collection, and other damaging colonial acts. After many years, museums have come to recognise how important it is that they engage with repatriation and culturally sensitive forms of display. Repatriation has been the subject of intense debate. I focus in this article specifically on the issue of display. I will do so through the lens of one object, a Māori  pouhaki . This taonga  was made by the master carver Tene Waitere.   Waitere was born in Mangamuka in Northern New Zealand in 1854 and is of Te Arawa and Ngāpuhi ancestry. His links to Te Arawa also connect him to a strong carving tradition. I argue that sensitive display has contributed to the restoration of the pouhaki ’s mana .[2]   In its current home within the main gallery of the Cambridge University Museum of Archaeology and Anthropology (MAA), the pouhaki  is one of the most striking objects on display. An eight-meter carved flagpole, it is, according to Nicholas Thomas, the only one of its kind outside New Zealand, as well as the oldest extant.[3] It is carved on three sides with manaia , supernatural figures that guard against evil.[4] The fourth side is incomplete, potentially indicating the rush to prepare it for its original purpose, as a gift to the Prince of Wales on his 1920 visit to New Zealand. Splits in the timber also suggest the totara  wood was not fully seasoned when it was carved, another indication of being made in haste.[5] The pouhaki  has suffered damage in its lifetime, and although some of this may have been due to transport between Aotearoa New Zealand and the United Kingdom, much of it was undoubtedly the result of inappropriate display over 85 years in a garden at the HMS Excellent  Navy Training Centre.[6] Earlier in its life, the currently eight-meter post would have had an additional pole on top and a crossbar, but these have been lost. In its initial presentation, ceremonial flags would have been connected to guyline-like ropes from the crossbar or the top of the pole, mimicking the effect of a ship’s mast. [7] Figs 1 and 2. Kauri-wood pouhaki (flagpole) carved by Tene Waitere and restored in 2008 by James Schuster, Tene’s great-grandson. Rotorua, New Zealand. Donated by the Ministry of Defence Art Collection. This image is copyright. Reproduced by permission of the University of Cambridge, Museum of Archaeology and Anthropology (2010.672). As this history suggests, the progress of the pouhaki  from Rotorua to Cambridge is an unusual one. It was first presented as a gift to Edward, Prince of Wales, on the tour he made of the Dominions to thank them for their support in the First World War. On 19 April 1920, it made its first official appearance during a powhiri  in Rotorua at Arawa Park, where it displayed around 14 tribal flags.[8] When Edward returned to the United Kingdom two years later, he brought the flagpole with him, and gave it to the captain of the HMS Excellent , a training facility on Whale Island, Portsmouth. It was then placed in a rose garden, which at the time was something of a menagerie for the exotic animals acquired by naval captains.[9]   Leaving the pouhaki  stranded in a garden in Portsmouth undercuts its cultural significance. The very fact that it is a flagpole  is significant. As Nicholas Thomas (Director of the MAA) notes, ‘It is a striking feature of Aotearoa New Zealand’s history that Māori have consistently and effectively embraced signs of European power and sovereignty, and made them serve their own ends’.[10] Indeed it is almost impossible to interpret the pouhaki outside the context of colonisation and disputed sovereignty. The very idea of a flag, and the pole that supports it, is tied to concepts of ruling powers. As easily as Māori had taken up metal carving tools, during the nineteenth century they adopted symbols of European dominance and used them for their own purposes. Flags and flagpoles were part of this process, and in some cases Māori resistance movements harnessed their symbolic power. In its original state this pouhaki  would have strongly resembled the mast of a sailing ship, a crucial tool of economic dominance and colonisation.[11]   Though a gift to the British royalty, the pouhaki  did not connote servility. It has significance beyond symbolising the distinguished service of Māori during World War I. Arawa oral tradition maintains that taonga  were most commonly gifted in order to settle differences between hostile groups.[12] Thomas interprets the pouhaki  as an affirmation of friendship on equal footing, and a subtle way of highlighting the Crown’s neglect of the reciprocal obligations set out in the Treaty of Waitangi, which was signed in 1840.[13] Te Arawa had supported the Crown during the New Zealand Wars which followed in the 1860s. By the 1920s the settler government had a poor track record of upholding its obligations to the Māori community. The Treaty had promised Māori they would retain  rangatiratanga (chieftainship), while the Crown received kawanatanga  (governorship). However, in the course of its colonial rule the Crown often did not respect Māori sovereignty, even for groups like Te Arawa which had previously supported its aims. Māori would often remind the government of its broken promises in symbolic ways. For example, just a few years later, in 1940, Nga Puhi wore red blankets to a Treaty of Waitangi commemorative celebration as a protest against land loss.[14] Similarly, whilst the pouhaki remained a gesture of friendship, it was also an ornate reminder of government failure to respect Māori sovereignty.   The pouhaki ’s initial placement in an environment close to a zoo speaks to a conception of it as an exotic souvenir, a far cry from a taonga created by a highly skilled and respected artist. Few would   have been aware of the pouhaki ’s origin or meaning, or indeed, with the exception of those working at the base, of its very existence. During this time the accompanying plaque also inaccurately identified the flagpole as a sort of totem pole used to mark tribal boundaries. Thomas describes this as ‘a piece of information that somehow typifies the vaguely plausible but commonly erroneous captioning of historic native objects’.[15] It certainly demonstrates the lack of attention that had been paid to the pouhaki  since it arrived in Portsmouth. It was not until the 1990s that the curator of the HMS Excellent’s museum contacted Auckland Museum about the pouhaki , which led Jim Schuster, Tene Waitere’s great-great-grandson and a heritage advisor to Heritage New Zealand, and Dean Sully, a conservationist, to come and view it in 2006. Nicholas Thomas made a follow-up visit in 2007. Finding the pouhaki  to be in good but imperfect condition after its years outdoors, Thomas proposed, with Schuster’s support, to have it moved to the MAA.[16] It was at this point unclear who legally owned the pouhaki , so it was accessioned to the Ministry of Defence’s art collection. The Ministry, however, came to support the proposal for the pole’s removal in October 2007.   The removal of the pouhaki from Portsmouth was a first step, but more was needed to display the object in accordance with Māori gifting practices. Paul Tapsell describes three essential elements of taonga . The first is mana , instilled in the object by the ancestors as   it passes through their hands over generations.[17] The second is tapu , which marks an object as sacred and protects it from transgression, preserving its mana  for the future. This would usually entail care by senior elders of a tribe. The third element is  kōrero , the orally transmitted knowledge and ritual surrounding an object. This would usually take the form of a karakia .[18] Accordingly, Schuster performed a karakia when the pouhaki  was removed, which both recognised and restored its mana and resituated it within its  kōrero . Significantly, the pouhaki was reconnected with its carving whakapapa as he carried   another Waitere object, a tokotoko , with him during the ceremony. Respecting such practices is key to appropriate display.   Tapsell also compares the journey of Arawa taonga , gifted outside its tribe, to that of a comet.[19] He first notes that the gifting of a taonga raises the mana  of both parties—the receiver’s as a result of gaining a powerful object, and the giver’s as a result of their generosity. This obligates the receiver to reciprocate in some form, so the pouhaki  was intended not only to remind Europeans of their duties but also to reaffirm them.[20]  Utu , the idea of repayment or reciprocity, is key in Māori culture.[21] When a taonga  is given it is most often expected that it will be returned, that ‘one day [ taonga ] suddenly reappear, charged with the spiritual energy of past ancestors, returning home to their descendants in a blaze of rediscovery’, creating even greater mana  for all parties involved.[22] Such gifts were typically given   between different Māori tribal groups, which understood their obligations to the object and the power surrounding it.[23]   When an object is passed into foreign hands, however, as in the case of the pouhaki , there is no longer a guarantee of reciprocity or maintenance. Customs surrounding the object are often ignored or forgotten. For these objects, display is more than visual. It incorporates a more extensive and temporal process—its  kōrero  must be understood. While the tribe most likely did not expect the pouhaki itself to be returned, it would be viewed as part of a cycle of obligations—beginning with the tribe’s service in the war, reciprocated by the visit of the Prince of Wales, and ending with the pouhaki  itself. The most probable expectation of reciprocation would have been the general fulfilment of European obligations towards Māori, an issue that remains contentious to this day.   I would argue that ignorance, rather than malice, is the cause of the neglect around the pouhaki . A pouhaki  displayed in a rose garden under an inaccurate plaque is not being intentionally violated. But it is fundamentally separated from the layers of knowledge which give an object its mana . It is divorced from the genealogy of its maker, its tribe, the practice of carving itself, and even from the reasons why it was gifted in the first place. Some from outside of Māori culture may not understand why this manner of display was disrespectful. In a culture which prioritises preservation of treasured objects, the declining physical state of the pouhaki  might have seemed the only real problem at hand. However, the removal from context was a greater loss than physical neglect. Mana and tapu  are essentially threatened by the loss of kōrero . As Tapsell describes, ‘such taonga , which can be found in their thousands in archives, upon the countryside, or in museums, remain recognisably Māori because of the patterns embedded in them … but because they have lost all associate knowledge, they are consigned to museum-like roles of representing an obscure and irretrievable past’.[24] The object clearly does not fit into the narrative of theft, violence, or coercion that entangles many objects held by British museums. But in any case, objects should be displayed appropriately to their cultural context.[25]   The restoration process is a good example of how an acceptable compromise can be found between European curatorial practice and Māori custom. Present-day Western curatorial practice tends to preserve an object in the condition in which it arrives, whereas Te Arawa customs would be much more hands-on, to the point of painting the object red.[26] The restoration of the pouhaki , which was carried out by James and Cathy Schuster, Dean Sully, and a group of Sully’s students, ended up being much more responsive to the unique position of the pouhaki  within the MAA.[27] While replicating a traditional mud-based stain was considered, technical analysis showed the existing stain on the pouhaki was shellac, probably from the 1920s, as by then Māori had adopted commercial paints and varnishes.[28] With that context in mind, it was clearly unnecessary to pursue the most traditional route possible, and indeed more suitable to take one that was adaptive to the environment, just as Waitere had adapted to the use of modern materials. James Schuster felt that the pouhaki  should be visually consistent with the rest of the gallery, particularly the Haida Totem Pole.[29] He decided instead to use linseed oil, which was very visually effective despite being unusual both for Māori and European custom.[30]   The restoration process also went further than re-staining the wood to restore the pouhaki  to its former glory. In sections near the top of the pole, where carvings had been damaged by a woodpecker, Schuster used Waitere’s own tools to repair the damage.[31] This not only returned the pouhaki  to its original liveliness but also restored some of the object’s mana , by reconnecting it with the tapu  tools and its own living history. The  pāua -shell eyes were also replaced during the restoration as the originals had been lost over time.[32] The glittering shells now ensure the pouhaki is as communicative and lively as originally it would have been. These alterations are compatible with Te Arawa customs because, as mentioned above, when a taonga  becomes too delicate for use its power is often   transferred to a replica. The significance lies not so much in the particular object as in the power surrounding it.[33]   Museum display contexts are tricky territory when it comes to Māori objects. Not only are there the history of stolen objects and inaccurate display to contend with, but the very idea of a ‘museum’ is also at odds with Māori treatment of  taonga . Tapsell speaks about this in relation to his own research into taonga :   I could easily understand why many Māori people feel alienated from their taonga  held in large city institutions. Apart from the physical barriers of distance and glass cases, the visiting tribes also have to cope with foreign labels and bureaucratic hierarchies. These not only separate taonga from their descendants and ancestral lands, but also recontextualise them in Western culture as objects assigned monetary valuations and institutionally defined in terms of legal possession.[34]   This passage shows how displaying taonga  can prevent them from fulfilling their cultural function, especially as Māori consider them living objects. Even if an object is displayed in a local museum that Māori could easily access, it can create a sense of alienation.   I would argue that the pouhaki  is an exception to this rule. There were a number of factors which led the Schusters to decide that the Museum of Archaeology and Anthropology in Cambridge was an appropriate home for the pouhaki . It was decided that the pouhaki  should remain in the UK as it was a legitimate gift with no   expectation of return, as detailed above.[35] They also felt the museum allowed the pouhaki to be placed within the context of other Pacific objects and Indigenous carvings like the Haida Totem pole, as well as other gifts that were presented to British royalty. Importantly, the museum already held a tokotoko  that Waitere carved.[36] It also helped that the Department of Archaeology and Anthropology retained a royal connection, as the Prince of Wales had graduated from it, and that Cambridge University had a history of visits from prominent Māori figures such as Hongi Hika.[37] Finally, the Schusters’ consent and involvement with the placement is itself a vital legitimising factor, reinvigorating the relationship between the descendants of Waitere and their ancestral taonga .[38] The pouhaki  is still legally owned by the Ministry of Defence, but the physical connection with the object, and acknowledgement of Waitere’s descendants, is more significant to appropriate display than legal technicalities of ownership.[39] Though the pouhaki  is not expected to be returned, it is nonetheless reconnected with its whakapapa .   In December 2008 a formal ceremony of dedication took place.[40] The event was reported in the New Zealand Herald , and the very title of the article, ‘Historic flagpole recovers its mana’, indicates how the object’s new placement was the very opposite of what is usually entailed by museum display. In this article Schuster talked about the great sense of emotion that rediscovering the pouhaki  had brought him.   Just to see it, knowing it was made by his hands, it brings great pride. There’s lots of our things over there [and] you always feel a lot of aroha for them—being away from home. But there’s also a sense of pride knowing that your great-great-grandfather’s work is being appreciated on the other side of the world.[41]   The improvements also showed off the prestige of the tribe and Māoridom at large to any visiting the museum. Similarly powerful reactions have been recorded by those encountering other taonga. This demonstrates the immense emotional value these objects have for Māori people. In the face of such connections, it is clear that European museums must do better to bring together objects in their care with those who made them, when such objects are put on display. In many cases, the appropriate action will be to repatriate the object, but the story of the pouhaki shows that new kōrero can be developed. An open dialogue between institutions and families can result in arrangements where specific objects can remain in museums while retaining their mana.   Glossary   Hapū: A kinship group. Section or subtribe of a larger kinship group. Iwi: An extended kinship group, such as a tribe. Karakia: Highly ritualised form of prayer. Kōrero: Orally transmitted knowledge and ritual surrounding an object. Often in the form of a karakia. Mana: A kind of spiritual power, instilled in an object by the ancestors as it passes through their hands over generations. Ngāpuhi: Iwi based in the Northland region. Paua: Abalone. The shell has an iridescent interior often used for decorative purposes. Pouhaki: Flagpole. Tapu: The sacredness of a taonga. Tapu protects a taonga from transgression so that its mana is preserved for the future. Taonga: Broad and complex term often roughly translated into English as ‘treasure’. Can refer to anything from man-made objects like carvings to natural treasures such as waterways. The three essential elements are mana, tapu, and kōrero. See Tapsell (n 12) for further explanation. Te Arawa: A collective of Māori tribes (iwi and hapū) that trace ancestry to the Arawa canoe. Based in the Rotorua and Bay of Plenty area. Te Reo: The Māori language. Tohunga whakairo: Master carver. There is no Te Reo word which translates to ‘artist’ directly. Tokotoko: Walking stick. Utu: Loosely, repayment, reciprocity, or balancing of obligations. Closely related to mana. Whakapapa: Genealogy or ancestry. A highly significant concept in Māori institutions.   Definitions are sourced from < https://maoridictionary.co.nz/ >. Piper Whitehead   Piper Whitehead is a third-year undergraduate in History of Art at Pembroke College, Cambridge. She is a winner of the Warren Trust Award for Architectural Writing and has been an Arts Columnist for Varsity . She is also a published poet and enjoys theatre and competitive debating. [1] Māori terms are defined in the glossary. [2] Deirdre Brown, ‘Colonial Styles: Architecture and Indigenous Modernity’ in Peter Brunt and Nicholas Thomas (eds), Art in Oceania: A New History  (Thames and Hudson 2012) 318. [3] Nicholas Thomas, ‘A Māori Flagpole Arrives in Cambridge’ (2011) 24 Journal of Museum Ethnography 193. [4] Museum of Archaeology and Anthropology, ‘Accession No. 2010.672’ < https://collections.maa.cam.ac.uk/objects/552750 > accessed 29 January 2021. [5] Nicholas Thomas, Rauru: Tene Waitere, Māori Carving, Colonial History  (Otago University Press 2009) 25. [6] Museum of Archaeology and Anthropology (n 4). [7] Thomas (n 5) 25. [8] ibid 190. [9] ibid 25. [10] ibid. [11] Thomas (n 3) 189. [12] Paul Tapsell, ‘The Flight of Pareraututu: an investigation of taonga from a tribal perspective’ (1997) 106(4)The Journal of Polynesian Society 338. [13] Thomas (n 3) 190. [14] Jock Philips, ‘Anniversaries – New Zealand’s Centennial, 1940’, Te Ara: The Encyclopedia of New Zealand  < https://teara.govt.nz/en/photograph/43020/apirana-ngata-at-waitangi-1940 > accessed 21 March 2021. [15] Thomas (n 5) 25. [16] ibid. [17] Tapsell (n 12) 327. [18] ibid 328. [19] ibid. [20] ibid 337. [21] ibid 338. [22] ibid 339. [23] ibid 338. [24] ibid 332. [25] Nicholas Thomas, ‘Introduction’ in Brunt and Thomas (eds, n 2) 19. [26] Thomas (n 3) 191. [27] Museum of Archaeology and Anthropology (n 4). [28] Thomas (n 3)192. [29] ibid 191. [30] ibid 192. [31] Museum of Archaeology and Anthropology (n 4). [32] ibid. [33] Tapsell (n 12) 331. [34] ibid 341. [35] Thomas (n 5) 26. [36] ibid. [37] Thomas (n 3) 190. [38] ibid 193. [39] Thomas (n 5) 26. [40] Thomas (n 3) 193. [41] Vaimoana Tapaleao, ‘Historic flagpole recovers its mana’ New Zealand Herald (Auckland, 27 November 2008) accessed 29 January 2021.

Marie-Claire Kakpotia Koulibaly is a feminist and activist fighting to end Female Genital Mutilation (FGM) and forced marriages. Marie-Claire is the founder and director of the Les Orchidées Rouges, an NGO that is committed to the elimination of FGM and organizes legal and medical support for its victims. CJLPA : Welcome, Marie-Claire Kakpotia Koulibaly. I’d like to begin by thanking you for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art  to discuss your story as a women’s rights activist fighting against female genital mutilation (FGM) and forced marriage. We would like to begin by learning more about your personal story. To the extent you feel comfortable, can you tell us how you fell victim to FGM and how old you were at the time?   Marie-Claire Kakpotia Koulibaly : I got FGM when I was nine years old, and at that time, I didn’t know that it was FGM. It was painful. It was painful and very difficult for me, but I didn’t know that it was FGM. And I didn’t know that the part of me that took out was my clitoris. So, I realised years later, several years later.   CJLPA : And how was it that you became aware of what happened to you?   MK : I became aware when I was 15, almost 16 years old. I left my home city to go to the capital of Cote d’Ivoire, where people don’t practice FGM. So, people were t elling me that FGM is a very bad thing. But I realised it really when I met a man from Italy, and one day, we decided to have sex, and as soon as he saw me naked, he stopped me  and asked , ‘where is your clitoris?’. And I said, ‘I don’t know, where is it?’. He told me I had been mutilated . ‘You cannot be a normal woman; you cannot have a normal life’. And after, he left me, and didn’t contact me again, because he could not finish due to my FGM, so it was very difficult for me because I couldn’t  finish either. I had that feeling of being broken and undesirable when I was 19 years old.   CJLPA : Thank you for sharing. When  he told you  that you were mutilated, and that you didn’t have what a woman would need, did you reflect then, back on what had happened when at such a young age you were cut? What was it like when you were initially first being cut? Did it seem normal at the time? Or were you very much afraid of what was happening and scared of the surroundings? Did you know at the time, what the implications were? Were you afraid or did it seem more of a normal practice that everyone around you was doing?   MK : It was when I was nine years old. It was very painful  and  very difficult for me. In my mind, I was thinking that it  wa s a normal practice, that it wa s a part of my education, because every girl and woman around me w as mutilated. So, for me , it was normal. They didn ’t explain to me why they were doing it, and I didn’t ask questions because it   wa s very taboo. I was only a child and I saw many girls mutilated — so for me, it was okay, it was normal.  It was painful, it was difficult, girls were crying — I was crying also, because they had told me that we had been invited to a party and I was very happy to g o. But when I got inside, it wasn’t a party. It is difficult when you are nine years old and four women slam you to the ground and one takes  out a knife and cuts  into your vagina without anaesthesia. It  was the worst pain I have ever felt in my life.   CJLPA : I can’t even begin to imagine the fear and the thoughts that come, as a young child at nine years old, just being pinned down. From today’s perspective, can you speak more towards this practice? Why it is that FGM is performed on young woman? Is there a reason behind it? What does it symbolise?   MK : FGM designates all the practices which cut the external genital organs of women. They have different reasons to justify FGM all o ver the world . In some parts of the world, they say that girls must undergo FGM to become a real woman. Sometimes they say it is cleaner to get FGM. And in some communities, if a woman is not mutilated, she’s considered a dirty woman, and nobody wants to speak with her, nob ody to eat the food she cooks. Parents e ven say to their children, ‘no, no, don’t play with that girl or that boy, because their mother is not mutilated’. So, there are various social pressures to mutilate girls and women and in many parts of the world, they mutilate the girls and women because they want them to remain v irgins until marriage. And when they get married, they want them to be faithful to their husband , to not cheat.  So, they want to control a woman’s body, they want to control a woman’s sexuality, and they want to control a woman’s life. It is gender-based  violence  w hich destroys girls and women’s lives, because it has  long lasting consequences, very bad consequences into adulthood.   CJLPA : From your experiences, you talk about how horrible it was for you. Why is it the other women — who have also probably felt the same fear and horror — think this must continue? You also mentioned your grandma’s involvement — I’m assuming she was cut as well . So, after all that she experienced, how could she let it happen to you as well?   MK : It is because of the social pressure, because in these communities, if a woman is not mutilated, she cannot find a husband . It is i mpossible, because men on ly  want to marry mutilated women . And i n these communities, women are nothing if they don’t have a husband. It is very important in these communities to have to get married before 30 years old. So, the mothers have the pressure to give their girls a  chance to get  a husband. And to get a husband for them, one of the conditions is to be mutilated. If a woman refuses to mutilate her girls, her husband will divorce her. Even if the husband doesn’t divorce her, the family of the husband will say she is not a good woman, if she doesn’t want to mutilate her girls. So it is very difficult for them.   That is why in my work, I want female  empowerment, mental empowerment, physical empowerment, and financial empowerment. I want female  liberation, because when women are liberated, they can say ‘no, I don’t want to mutilate my daughter  because it is a horrible practice, because now I’m suffering because of FGM so I don’t want my girl to suffer like me’. Even though they  know that it is not a good practice, they  continue because they don’t have money or the opportunity  to be emancipated by society. So it is important to raise awareness to prevent this practice but also to help women to become empowered, because the empowerment of women will stop FGM.   CJLPA :   What would happen to young girls who tried to resist being cut?   MK : When you are young it is very difficult to resist because they never warn you. They will never tell you ‘I will mutilate you!’. They are very kind, they say ‘oh, come to a party, oh come with me, we will visit your grandmother’, or a grandmother can say ‘ I want to see my grandchildren ’, and when you go to them, they mutilate girls. Sometimes my institute helps families even in Europe. They have come back from vacation and their baby girl has been mutilated whilst they left them with their family. So it is very difficult to resist. The better way to resist is not to go there, not to go into the community, because if you go there, if the girls and the women go over there,  and  they don’t pay attention, they  may cut the baby . Sometimes even the  neighbours cut girls of another family. So, it is very difficult to resist. And when you are a young girl, there are sometimes three or four women . I t is very difficult to resist because physically they are more powerful than you. So the best way t o resist  is not to go there, because it is very difficult to escape. When a woman here in Bordeaux tells me she wants to go to a country  where they mutilate women,  I say ‘if you go there, you have to sleep with your baby girls, you have to have them with you at all times. Because if you leave them alone, or if you leave them with the family, you will  get a very  bad surprise’.   CJLPA : From your experience, and from speaking to FGM survivors, how can FGM affect young girls later on in life, in terms of the trauma that they’ve endured?   MK : FGM can impact women psychologically, physically, and also socially. Psychologically, because many women, like me, develop a lack of self-confidence. They hate their body . Often, survivors tell me ‘I don’t like my body, my body is horrible. I don’t want to look at my vagina’. So, it is very difficult to be happy when you don’t like your body, when you don’t have self-confidence or self-esteem. It is very difficult to build your future.  S urvivors tell me they want to die, they want to die because life is so difficult for them, because they’re undesirable, because they cannot have a normal sexual life. Because they cannot be happy sexually. And sometimes also, they don’t make  good decisions for their life, because when they develop a lack of self-confidence, sometimes they choose a man who is not good for them . Because we’re so sad. They choose the man who is right in front of them, and they don’t wait for the right one.  So it is difficult to be happy in their personal life.   Sexually, it is  very, very painful for some of them. T hey can also have gynaecology problems because of FGM. When they give birth to a baby, they or the bab y could die because of FGM. And socially, they could stay in poverty because of FGM. Sometime s   due to FGM, women  can become sick on a long-term basis, often due to sexual infections,  meaning they cannot continue going to schoo l.  And so, they stay in poverty. And during the FGM procedure, they can die because of the blood loss — FGM generally i s not done in a hospital, it is done somewhere outside , in a forest or somewhere in a smaller room with no medical equipment — so they can die, and often they do die.   CJLPA : Have you spoken to cutters before? What was their response? Do they have any sense of empathy for what they’ve done? Do they understand the implications FGM has for women mentally and physically?   MK : I met  a cutter some years ago in Cote d’Ivoire. And I asked her wh y she  cut girls, and she told me it was her grandmother’s  heritage, her grandmother was a cutter.  And before dying, her grandmother gave authority  to that cutter I met in Cote D’Ivoire . I asked her ‘Do you realise that you destroy li ves ? ’ . She said ‘no, it is our tradition. Our ancestors practised FGM. So, we continue practising FGM to honour our ancestors’. I told her she could  honour ancestors without taking  life. And I said, ‘ do  you realise th at girls suffer, many girls suffer, because of your practice?’. She said it is a rich  tradition. S he kept speaking about t radition. But I told her that tra dition must make lives better , not destroy l iv es. Tradition must create an equal society. Tradition must create liberty, freedom, tradition must create wellness, tradition must not create sadness, suffering, it must not create destruction. I told her that sometimes girls die because of her  practice. Tradition cannot justify that. So you must stop practising FGM.   She said, ‘I know that it is difficult, but if we don’t practice FGM then women will become prostitutes’. I said, ‘No, th at is not true. If you want women and girls to have correct behaviour for your community, you can educate them. You don’t need to cut them. You can just educate them, teach  them to respect themselves.  Teach  them to respect  their body . You can respect your body whilst doing  what you want with your body. My body is my choice. You cannot choose for me what  I do  with my body. It is not possible’. I said to them, ‘B y cutting girls, you tell them that their body is not their property. It is a violation of our fundamental rights. So, stop now’ . It must  stop and I told her  that she c ould  go to jail if I hear  that she cut again, she wi ll  go to jail because it is forbidden .   I t is a crime to mut ilate  in many countries. Unfortunately, we still have six countries in the world where it is totally legal to mutilate girls . In 2023, we cannot have some countries where it is normal to cut. It is not a crime in six countries in the world.  W e as an international community must do something about that.  I want the United Nations to make a  decision about the six countries where it is legal to mutilate, and to vote on laws  to criminalise it . Even criminalization is not enough to stop it , but  it is important to vote for a law  to say it is a crime.   CJLPA : You raised some very crucial points that I want to talk about later in the interview. But just going back to your conversation with a cutter — in my head, when you first  started speaking about a cutter, I assumed that it was a man, but it’s another woman. And she thinks that it’s normal practice to tell a woman what to do with their body, take that right away from them. That is the mentality in her head, that this is normal practice. I think it’s just astonishing. And it just shows you that the root of the cause is that from such a young age, women are already told and brought up that they are less than a man, that their body is not theirs, and it’s for other people to decide what to do with it.   It must be so challenging to see the person responsible for what was done to you at such a young age, and then also how she just kept going back and forth with you, saying ‘no, this is the way it is, and this has always been the way and tradition’. How can we address that, how do we get them to understand and how do we help minimise this practice? What can be done?   MK : To stop FGM, it is important to work with cutters like partners, because they need to be educated. They are very ignorant , s o it’s important to work with them. And it is also important  to give them another way to make  money. Because when I discussed it with  her, she realised that it is a bad thing. She said ‘I know that it is  not really a good practice, but it is our tradition’. And she asked me, ‘I want to stop. I want to stop. You are not the first person to tell me that it is not good’. But, she said to me, ‘I don’t have another way to make  money. So if I decided to stop, how can you help me to live, to make  money?’ . That is the real question. How can we convert cutters? How can we inform them? We know how to inform them, we know how to educate them, but it is important to convert them, to allow them to have another job. It is imp ortant to understand  that it is a job for them. It is a job  and they earn a lot of  money, because communities respect them. They are the people  who allow women to become a real woman, to become pure. So it is important, I think, to empower cutters . And we are working on a programme in South Africa, in Côte  d’Ivoire, to raise awareness, to work with cutters and to give them the opportunity to find another job . Because even if we educate them, if we don’t give them the  opportunity to have another job to earn  money, by another way, they will continue.   CJLPA : Definitely. There’s a misconception that FGM is just an African problem, when the reality is that women fall victim to this or all over the world, including in Europe. Why do you think people don’t know this occurs in every country that they live in?   MK : I think that people think that it is just in African countries, an African problem, because in Western countries, police, politicians, and even feminist activists don’t speak loudly about FGM. It is very taboo, even in politics and in activism. So, it is important to spread awareness to highlight the topic of FGM . M any people consider that FGM is a barbaric practice coming from Africa, because Africa is a barbaric continent. So, they cannot imagine that Western countries are also impacted by FGM. Sometimes in my conferences, I tell people that  whilst today it is diaspora communities in  Western countries that practice FGM, until 1960 FGM was practised by white people in hospitals in Europe and in the USA. When I tell people this, they say ‘no, no, no, this is impossible ’, because they say it is a barbaric practice. But yes, in Europ e and countries like France, like the United States, FGM was practiced on women as a supposed ‘cure’ for hysteria, mental illness, or masturbation.[1] They cut the clitoris in hospital, so it was legal.    N ow it has changed,  because it is just other communities  w hich practice FGM. But it is important to highlight  that it is a global issue, because many European girls and women are mutilated, sometimes here in Europe, often  whilst on vac ation. This summer, unfortunately, some girls and women will come back from vacation mutilated, which is the reality. So, it is important for politicians, activists, and organisations which fight for human rights to speak about FGM. Everybody must speak about FG M. I n Europe, and everywhere in Western countries when they speak about gender-based violence, they never mentioned FGM or forced marriage. Never, never, never. So, in my advocacy, when I work with the French government and United Nations, I tell them to mention female genital mutilation and forced marriage when they talk about women ’s rights , because if equality exists, FGM and forced marriage cannot exist. It is one of the manifestations, one of the extreme manifestations of inequality between men and women. So, you cannot talk about gender-based violence without mentioning FGM and forced marriage.   CJLPA : Returning back to Europe, as you mentioned, it is still an ongoing issue. But unlike those six countries, in Europe, it is illegal. Why is FGM still occurring in Europe? Are politicians not getting involved enough? Or are there simply no reports happening, as victims do not come forward?   MK : I’m seeing it continue to  happen in Europe. That is why in my work, I want to speak loudly to highlight the topic. It is very taboo and it happens behind closed doors . Families and survivors involved have social pressure, family pressure, so it is impossible for them to denounce their family. So, this lack of denunciation in the communities, and the denunciation of the survivors, is one of the main reasons why FGM continues to occur in Europe and in Western countries, because if survivors or community members begin to speak louder about this,  it  will stop, but they don’t do that. It is very difficult to identify which families or which communit ies  continue to practice  FGM in Europe.   CJLPA : And following up on your work, you’ve started your own NGO, Les Orchidées Rouges, to help women and young girls who are victims of FGM and forced marriage. I was wondering if you could tell us a bit about what inspired you to begin this NGO and what the name symbolises.   MK : I decided to create an  NGO after my reconstruction. When I reconstructed myself, I realised that I have suffered hugely  because of FGM and I also realised that millions of girls and women are suffering because of this practice. So, in my mind, I thought I must act, I have to contribute to the eradication of FGM because I don’t want girls or women go through what I went through. So it was important for me to use my experience , it was also important for me to create innovative solutions to support and give free treatment to survivors, to allow them to b ecome empowered, to allow them to become resilient, and to take power over  their body , their life. Those that practice FGM cannot have the last word over other people’s lives.   CJLPA : That’s truly inspiring, the work that you’ve established and how you’re giving the voice back of young girls and women that have been silenced. What does the name symbolise?   MK : Les Orchidées Rouges . The red orchid. I was talking about my story to a friend. And when I told her my story, at the end, I said, it is like a flower you cut. And the flower grows , the flower is born again, better. So, when I decided to create an NGO, she said to me, ‘Oh, I liked your flower story, can you name your NGO after the name of a flower in Af rican language?’. And I told her, ‘I don’t know the name  of a flower in African language, but I want to choose a flower which is symbolic for me ’. So I found information  on the internet about the red orchid, and I discovered that the meaning of the red orchid i s the very strong desire to have sexual pleasure, to have sex. And they cut girls and women to stop their sexual life, to control their sexual life. So, for me, I decided to call my NGO Les Orchidées Rouges to say that women also have the right to have sexual pleasure, the right to do what we want with our body, the right to be free. And when I looked on the internet, I saw that the flower of an orchid is like the vagina of a woman . We have something like a clitoris, which is cut during FGM. And the meaning of the word ‘les Orchidées’   originates from the  Greek language [ orchis ] and the meaning is a testicle . So then it was clear to me that I had to call the NGO Les Orchidées Rouges.   CJLPA : I wanted to shift the focus a little bit because I know that your NGO also works around forced marriage. Millions of girls around the world were forced into marriage before the age of 18. And I was wondering if you could speak a little bit about this issue and what your NGO does to address this?   M K : So, we speak about forced marriage  when  we speak with communities, but also when we train professionals in hospitals , in schools . Even European girls are vict im s of forced marriage, when some go on holidays this summer, some will not come back. Even last week, I was talking with a professional in a bank. And she was very sad, because her cousin  went to  Madagascar, but she never came back, because they forced her into a marriage  with  an old man in that country and she stayed there. So we educate those in communities, professionals, even those in schools  about forced ma rriage  and we tell them that we cannot force people to marry . We cannot do that. It is the fundamental right  of girls and women to decide if they want to be married, if they want a person, because the origin of marriage must be love. Love must be the origin. If you force somebody, there’s no love. There’s no love, it is violence. And we tell them that it is a violence, and you sacrifice girls.   Sometimes, they say that it is because of poverty. It is slavery, because women sell their girls, they sell the women of their family to have money to live. I understand that it is difficult to be in poverty, but you cannot sell a person. She  is not an object, she  is not a thing, she  is a person, a person who has rights, fundamental rights. You cannot sell a person. She will suffer and because she will be victim of sexual violence. If you don’t choose your husband , you don’t want to have sex with him, so many forced marriage survivors are victim s of rape. And they’re also a victim of family violence because the men beat the girls or the women when they don’t want to have sex. And she’s like his slave.   CJLPA : Do you think the underlying issue is poverty in the sense that families are so desperate that they are willing to sell their child, as you  said, into slavery? Or do you think it’s more of a mentality issue, of ‘Well, it’s just a woman ’— objectifying a woman as a person? Or do you think it’s a bit of both?   MK : I think that it is a mentality issue. Why don’t they  sell the boys or the men  of the family, why don’t they  sell boys and men? It is a question of women’s  place in society ; women are not respected in society. Across  all kinds of societies in the world, women’s equality exists nowhere. Nowhere. People  think that women are the property of society , any body can decide for women what  they have to do with their life, their body, their sexuality, everything. So, it really is a mentality issue, because   they can’t see that if you are poor,   you can find another solution, you don’t have to sell a person. And i f you sell a person, why is it always the women who are sold? That is why it is important to change the mentalities and to create a place, a respected place for women and girls in all the societies  in the world, because we need to find solutions together, men and women together, to improve our societies. By taking another kind of solution with respect  for everybody, men and women.   CJLPA : That was very powerfu lly said, and I completely agree with you. I wanted to also ask you, from your work and your experience, have you seen progress over the years, or do you find that these issues are just as problematic as before and if not even gotten worse?   MK : I think that we will notice some progress, but it is not fast . It is slow, v ery slow. It is important to accelerate the progression, because millions of women and girls contin ue to suffer. Girls are dying because of FGM, forced marriage , and other types of gender-based violence. And unfortunately, because of the COVID crisis, schools were closed, and when schools are closed, they can cut girls and nobody will be aware . So during the COVID crisis and lockdown , many girls and women were being mutilated behind closed doors, everywhere in the world, many of them mutilated by force . And because of the COVID crisis and lockdown, N GOs like mine were  not able to go into communities to continue raising awareness, so unfortunately, there was a large impact.   There is small, slow progress , but we need it to progress faster. We need the international communities to consider FGM and forced marriage, we need politicians to enforce the laws, to follow the laws which forbid FGM. We want them to criminalise FGM in the countries where it is legal. And we also need funding, we need financial means for NGOs, or for organisations to continue raising awareness, to also continue developing, innovating solutions to accelerate the eradication of FGM.   CJLPA : Absolutely, because there is  a lot of work to do. And as we speak, it’s a constant continuing crisis that’s happening all around the world. And it’s something that more people need to know about. It’s one of the top priorities that should be on the agenda is for politicians and lawyers and ambassadors.   I wanted to ask you what the key message is that we need to send out in respect to FGM and forced marriage for all the readers, in order to spread awareness and push for that motion of urgency amongst readers, politicians, lawyers?   MK :  I want to speak about the importance of education. When I went to schools and communities people of ten told me, ‘Oh my god, for me It was normal to cut girls. And now you opened my mind, you  opened my eyes, I discovered it was not good . And my girls will no w not be mutilated’.  Or sometimes I met some boys, and they tell me that I opened their eyes to FGM and that when they have a baby girl,  she will not be mutilated . For me, it is a victory to listen  to these people. And sometimes I met girls in schools, and they said ‘Oh, I have been mutilated, for me, it was okay . But now, you have opened  my eyes, I know that it is not good. And when I have  a baby, she will not be mutilated’. So, that is why it is important to continue raising awareness, to continue going to meet people in communities, girls and boys in schools, because they are our future, it is important to inform the younger  generations, to prevent  them from making  the same mistakes as the ir ancestors. It ’s very important. And if we have funding, we have  more funds to develop, we will open the eyes and the mind of many . If we have funds, we can develop more activities and open the eyes and the mind of many people in the world to stop FGM.   CJLPA : I think you just said that so beautifully, because the key point with this issue is to raise awareness, but it’s also to educate. Throughout your responses, the underlying problem is, one, mentality: the fact that people think that this is a normal practice, and it is okay to treat women like this. And two, that it’s not a top priority in the agenda and international community as it should be.   On that note, I would like to thank you for your time today and for your courage in having to relive this  trauma by answering these questions. And, of course, your heroic work for women’s rights by exposing these international crimes of FGM and forced marriage, ultimately giving the word, the voice back to women who have been for so long not empowered by strong female figures such as yourself. What would you like to send out as a final message to the readers and politicians about FGM?   MK : My message for politicians and leaders is: I call them to join the fight against female genital mutilation and forced marriage. We need the support. We need the support, and they can support us by engaging themselves seriously, and by taking measures to stop FGM. They cannot talk about gender-based violence of women without talking about FGM.   They are leaders, th ey  are politicians and one of their obligations is to make the world better for everyone. So, if they want to make the world better for everyone, they have to help, they must help us to stop FGM and forced marriage. They cannot continue without acting with us. They cannot, and  we will continue to call them ou t,  we will continue making advocacy. They must realise that FGM is a crime, it is a crime, and it cannot continue. And if they don’t want to act with us, they are  siding with th e cutters. Because if they don’t act with us, it is because they accept , or  they agree with this practice. If they  don’t agree with FGM and forced marriage, they must a ct n ow, not tomorrow, it is now they must act. If they don’t act, they side with the  cutters.   And another message for survivors. Please survivors, we need you to speak louder. Because by speaking louder, you will give the courage to other   survivors to  talk about their story. It will give  courage to other survivors to change their life. You  will give courage to other survivors to become change makers, to become activists , t o say ‘no, I do not a ccept being the slave of society , or the slave of a man’. You can give courage to other girls  to say ‘I can become a change maker, I can become a leader, I can change the world for me, for my community, and for all the girls and women in the world’. So please speak louder. It is your right to take  power o ver your life and nobody can decide for you what you have to do with your body, with your sexuality, and with your life. You are great, you are great. So let the world know that you are great. You are great.   CJLPA : That was so beautifully and powerfully phrased. Thank you very much for saying all of that and for your time today. Thank you so much for your time today. It is truly an honour and very helpful to have you here.   MK : Thank you very much Nadia. 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. [1] See ‘FGM in the Americas’ ( Equality Now ) < https://equalitynow.org/fgm_in_the_americas/ > accessed 10 January 2024.