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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.

Most first novels are emotionally explosive, going to the heart of the individual. Novelist Paul Pickering changed from journalism to fiction after a meeting with a man, known by some to be the war criminal Josef Mengele, the Angel of Death at Auschwitz. Mengele performed deadly experiments on prisoners at the Auschwitz II (Birkenau) concentration camp, where he was a member of the team of doctors who selected victims to be murdered in the gas chambers, and was one of the doctors who administered the gas. He eluded capture possibly because he knew about high-placed people complicit in the Holocaust. Following his encounter with Mengele, Pickering no longer found it possible to write in the simplistic way that newspapers demanded. This journalistic approach could not express the intensity, range, and subtlety of feeling he required, especially as this encounter awakened links with his gypsy and Jewish background. And so he turned to fiction and produced his first highly acclaimed novel Wild About Harry , and he is about to publish his eighth novel, Lucy , on 15 July (Salt), about obedience, rebellion, and genocide.   Here he tells of his meeting with the man he was told was Mengele and about his new book, Lucy . After university and a spell on a local evening paper I went on to work for the nationals. I worked for The Times, The Sunday Times, Punch , and Tina Brown’s Tatler . I was then head-hunted by Sir James Goldsmith’s Now! Magazine , and had to set up offices in New York and Washington. One rainy day, buried in the obscure anthropological magazine Survival International,  I found a footnote which said that Josef Mengele, the camp doctor and Angel of Death at Auschwitz, was alive and well and poisoning Aché Indians in Paraguay with small-pox impregnated blankets. Wow! I thought. A scoop! Slowly, I gained the trust of the exiled Paraguayan community in New York and the Adams Morgan area of Washington, where an ambassador’s daughter who had been tortured by the far-right government of Alfredo Stroessner, led me to a grief-mad poet named Joél Filátiga. His son had been tortured to death and dumped naked and burned on his doorstep in Asunción. He said he knew where Josef Mengele was and if I helped him and the coup he was planning, he would tell me. Under the guise of a timber importer, I stayed with the poet’s family. I ran messages to the Movimiento Popular Colorado in Posadas, Argentina, which was in the middle of the ‘dirty war’. People were being thrown out of planes over the jungle and I have never seen anywhere so scared, at one house an Alsatian backed away whimpering, thinking I was like the soldiers who had called that morning.   I found it easier to identify with the Paraguayan and Argentinian dissidents and desaparecidos than think of Mengele as relevant to me. To this end I carried a copy of a receipt for a histological section of a head of a 12-year-old gypsy boy Mengele had checked out of Auschwitz to take home. He later murdered everyone in the gypsy camp.   After the coup failed, Filátiga and everyone not in prison fled. But a German diplomatic contact and a colleague of his I met on the chain-link ferry to Posadas in Argentina, who knew I was looking for Mengele, arranged a meeting with a man called Rodriguez, who the diplomat said was working for the Indian organisation API (Association de Parcialidades Indigenes).   On a red dirt road an hour from Hohenau in the south there was a large farmhouse, where a young man took me to a comfortable and unpretentious room with bookshelves loaded with Spanish, English, French, and German books, and a television. French windows opened out onto a garden where another young Paraguayan man sat in a chair, looking in. In a cage was a pink and black bird, a Paraguayan magpie-jay.   I tried to hide my surprise as a man who came in immediately resembled the pictures of Mengele I had seen published.   He went over to the bird, which knew him, before sitting down. He seemed fit and in late middle-age but was probably older, handsome, and relaxed with a twinkle in his eye and, above all, exuding a straight-backed European charm, as if we were in a café in Berlin. He was warm and expressive.   The man did not smoke and we drank coffee. I knew there was a Rodriguez who worked for API through English contacts in the organisation and had seen a picture of him. The man sitting in the chair opposite me was not this Rodriguez.   I said I was writing about the south of Paraguay and that the German diplomat in the capital said I should contact him, and we started to talk. The man spoke fluent German-accented English. On the desk was a book in German about Günzburg in Bavaria, Mengele’s hometown. Our talk moved to the local Germans and he mentioned Alban Krug and said he stayed with him (as Mengele had) and with Armand Raeyners, ex-SS owner of the Hotel Tirol in Hohenau, I said he must not have expected to have to leave Günzburg. He nodded and said he had been there for almost five years after the war ended.   He paused and was looking at the man outside the French windows. Then he said: ‘I did not think I would have to go over borders dressed as a woman’, which caused me to blink.   I then asked him if he was Josef Mengele. I tried to make the question as gentle as possible. The bird shrieked. The man just sat there smiling. The silence went on and on and an old clock was ticking away. He was staring at me with vivid blue eyes. The young man I first met came in through the door and the other, outside the French windows, approached the glass. The one who had come through the door beckoned me and the man who I had asked if he was Mengele continued smiling.   No further words were said but there was no doubt our meeting was over. He stood, we shook hands, and I left. There were no guns, no security, no one followed my rusting Volkswagen beetle. I saw no other cars on my way back. I remember my mouth being very dry. Mengele knew how to use the power of his own myth in a post-colonial world.   The relaxed meeting is where the transformation of the Faustian character, the Doctor, into the affable Harry originated in my novel. Mengele playfully used the alias Dr Fausto Rindón. Dark humour was never far away, as when I got lost in Asunción and had to ask the secret policeman following me the way. He did not know either. In the south, one house where I stayed, an orphan’s refuge, was frequently surrounded and machine gunned by the local warlord, a South African priest, who shot a man in the foot for talking in church. Back in Asunción I was arrested, but managed to escape across the Paraná river, under blankets in the back of a taxi.   Photographic or taped proof of my meeting with the man I was told was Mengele was not possible, so there was no journalistic coup and the complex, paradoxical nature of Paraguay, inaccessible to journalism, impelled me towards my first novel, as did the meeting itself with the calm, amused, blue-eyed man with his red-bound copies of Balzac that somehow reminded me of my anti-fascist father, a note of nostalgia for the innocence of childhood that I had not expected to be triggered by Mengele, who embraced power in a terrible but non-political way. I think he enjoyed the mass-killing, the torture, the fake experiments as a diverting entertainment and when it was over adapted, smiling, to the peace. I have thought of him increasingly since writing Wild About Harry  as, for me, he is the ultimate destructive protagonist. The apotheosis of the absence of good.   I had been working undercover for months and was sacked for using my company American Express card to support the coup, but fortunately had a contract and a pay-off so went to the Trinidadian carnival. In the meantime, my wife had fallen off a platform bed in our flat and broken a vertebra in her back—we were not able to talk and for a while she did not know I was alive, because Private Eye,  so helpfully, had said I had committed suicide. When I returned to London, I wrote a funny column for The Times  and an agent asked if I had ever thought of writing a novel. My near fatal hunt for Mengele, the coup, the shootings, the torture, and the repression, provoked an earthquake change to fiction and my first novel Wild About Harry .   My new novel Lucy , my eighth, is a return to my core themes of the bargains we make and authoritarianism. And to Berlin, like my third novel, the New York Times Notable Book of the Year, The Blue Gate of Babylon . Lucy takes as its epigraph the quote from Hannah Arendt: ‘No one has the right to obey’, whatever bargain they have made, Faustian—with the devil—or otherwise. The book is about how one survivor in Berlin takes over the lives of three others, in the way Hitler took over a country. In Lucy  the man takes them over sexually as well. Operation Lucy, once an idealistic if shabby espionage ring against the Nazis, has changed into one that murders communists and rebels not killed by Hitler, and ultimately its own operatives. Like the authoritarian character in the book, or the Third Reich, Lucy  becomes a self-devouring monster. The novel is absurdist and at times darkly comic, pointing out the best intentions, when they pass through the looking-glass of human failings, are most often changed to the opposite.   Lucy taps into a welcome sea-change across the world about obedience and rebellion, the mounting student protests across America and Europe and Africa and Asia against the horror in Gaza. Lucy  takes place in the actual and moral wasteland of immediate post-war Berlin. For me, no one has the right to the Nuremberg defence, ‘I was only obeying orders’. Set partly in a German kibbutz, founded by Nazis to remove Jews from Germany, Lucy  shows a clash between the utopian ideas of the kibbutz and the toxic nationalism and colonialism necessary to found the state of Israel, a state the rabbi in the book points out was forbidden by God after the destruction of the temple.   I hope Lucy  is an anti-war novel in the tradition of Slaughterhouse-Five by Kurt Vonnegut and Catch-22  by Joseph Heller. Catch-22 means no escape because of contradictory rules, Lucy  is the Lucifer paradox, where the only good is bad, and only bad is good. And it is a gypsy woman and refugee who most completely rebels, and literally washes herself clean in the blood of revolution. I believe Lucy ’s story prefigures the new tectonic changes, alive and growing in our world, which will be for the better. I am an optimist. Paul Pickering Paul Pickering is the author of seven novels, Wild About Harry, Perfect English, The Blue Gate of Babylon, Charlie Peace, The Leopard’s Wife, Over the Rainbow and Elephant . The Blue Gate of Babylon  was a New York Times notable book of the year, who dubbed it ‘superior literature’. Often compared to Graham Greene and Evelyn Waugh, Pickering was chosen as one of the top ten young British novelists by bookseller WH Smith and has been long-listed for the Booker Prize three times. Educated at the Royal Masonic Schools and the University of Leicester, he has a PhD in Creative Writing from Bath Spa University where he is a Visiting Fellow, presented his doctoral thesis to the Bulgakov Society in Moscow, recently completed a Hawthornden Fellowship Residency on Lake Como and is a member of the Folio Prize Academy. The novelist J.G. Ballard said Pickering’s work is ‘truly subversive’. As well as short stories and poetry, he has written plays, film scripts and columns for The Times  and Sunday Times . He lives in London and the Pyrenees. A major theme of his novel Elephant , published by Salt in 2021, is innocence. His new blackly comic, absurdly realist novel Lucy , about obedience and rebellion, political and sexual, is published on July 15 by Salt. He is working on a new novel, CONVERSATION WITH A LION , about how things fit together and fly apart. The novel tries to explain the impossible absurdity of living, impossible like a conversation with a lion.

NOTICE: This article contains information that some readers may find distressing.   ‘Take her to the dark room’, said the Han Chinese man in a mask.[1] Tursunay Ziawudun and her cellmate, also a young Uyghur woman, were ushered into separate rooms. As she heard her cellmate’s screams next door, guards inserted an electric baton into her vagina and twisted it. She blacked out from the shocks. Ten days later she was gang raped.[2] On other occasions, guards shoved metal tools into her genital tract, making her feel as if her internal organs were being pulled out.[3] ‘It was not a simple rape; it was extreme inhumane torture’, she later testified.[4] From these experiences, Ziawudun soon developed constant vaginal bleeding, from which she continued to suffer after her release. When she arrived in the US in September 2020 for medical treatment, doctors had to remove her uterus.[5]   From early 2017, the so-called Xinjiang Uyghur Autonomous Region (XUAR) in the People’s Republic of China (PRC), referred to by many Uyghurs as East Turkestan, embarked on a campaign of extrajudicially interning an estimated 1-2 million Uyghurs and other members of predominantly Turkic ethnic groups into re-education camps.[6] The campaign was preceded by decades-long tensions between Uyghurs and China’s Han majority population, which in July 2009 erupted into violent clashes in the region’s capital of Urumqi.[7] After acts of violent resistance by small numbers of Uyghur militants, Beijing turned Xinjiang into one of the world’s most heavily fortified police states.[8] This paved the way for a re-education campaign that represents the probably largest incarceration of an ethnoreligious group since the Holocaust.[9] A conservatively worded report issued in August 2022 by the United Nations Office of the High Commissioner for Human Rights (OHCHR) stated that Beijing’s policies against Uyghurs may constitute crimes against humanity.[10] In December 2021, an independent people’s tribunal chaired by former war crimes prosecutor Sir Geoffrey Nice found that Beijing was committing genocide in the region.[11]   The International Criminal Tribunal for the former Yugoslavia (ICTY) specified the crime of rape in international law as:   [T]he sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object [...]; or (b) the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim.[12]   According to Qelbinur Sidik, an Uzbek woman who was forced to teach camp detainees, the women’s camps use four kinds of electric shock device to torture female detainees: ‘the chair, the glove, the helmet, and anal rape with a stick’.[13] Camp security staff told her that groups of police officers would first rape a woman, then insert an electric baton or rod into her vagina and rectum to shock her, then rape her again (a Han police officer who fled China has testified that camp guards would also insert electric rods into the penises of male Uyghur detainees).[14] Some of the female rape victims were still teenagers. Classified police records confirm that many teenage females were among those arbitrarily detained at a re-education camp in Konasheher county in southern Xinjiang, including Rahile Omer, a Uyghur girl aged 14 when she was detained.[15] Ruqiye Perhat, who was repeatedly raped by Chinese prison guards, resulting in two pregnancies that were then forcibly aborted, stated that it was typical for a detained ‘woman or man under age 35 [to be] raped and sexually abused’.[16]   Other firsthand testimony from camp survivors speaks of forced sex-on-demand. ‘My job was to remove their clothes above the waist and handcuff them [behind their backs] so they cannot move’, said Gulzira Aeulkhan. She would then leave the room and a man would enter, either camp police or a Chinese man from outside the camp. ‘I sat silently next to the door, and when the man left the room, I took the woman for a shower’.[17] Chinese men would pay money to sleep with the most attractive detainees.   According to another Uyghur detainee, in her camp in Xinjiang the younger and more beautiful Uyghur women were detained on the second floor of a building used by Chinese camp officials.[18] Officers would take them away for ‘interrogation’, a euphemism for taking them to their vehicles where they were kissed, groped, and raped. To refuse would risk a long prison sentence. One of her own disciplinarians, a Han man, would take younger female detainees to the locker room, which did not have surveillance cameras. There, he would grope their breasts and thighs, threatening to send them to the prefecture-level detention centre if they resisted.   Tursunay Ziawudun noted that the masked men always appeared at night, taking groups of women through camp corridors and into the interrogation room, which did not have cameras.[19] Several female detainees have reported incidents of gang rape during interrogations.[20] Sayragul Saytbay, a Kazakh woman who was forced to teach at a camp, witnessed a girl in her early 20s being gang raped in front of other detainees by masked police officers.[21] ‘Rescue me’, the girl screamed as five or six officers took turns penetrating her. Male Uyghur detainees have also been gang raped.[22] A former Han camp police officer admitted that guards used sexual torture to extract confessions, and dehumanize Uyghurs by ordering detainees to rape new male inmates.[23] Former camp teacher Qelbinur Sidik described how young women would routinely be taken out of her class, and returned hours later.[24] Sexual abuse and torture had left their clothes stained with blood, and they were unable to sit down.   Gulbahar Jelilova was chained and raped four times during interrogations, including attempts by a guard to forcibly insert his penis into her mouth.[25] The abuses forced her to spend a total of 40 days in the camp hospital. Other female detainees suffered mental breakdowns as a result of physical and sexual abuse, hitting their heads against cell walls and smearing faeces on them. Guards would force women to undress in public settings and search their genitals for hidden Koran texts.[26] A few women had recently given birth and were lactating from their bare breasts. One of them had delivered a baby the day before she was detained.[27] Other women reported that camp guards ordered them to strip naked and smear a liquid mixed with chilli paste on their genitals before showering, causing them to burn ‘like fire’.[28]   In 2018, Menzire (pseudonym), a Uyghur family planning officer, was tasked to deal with female camp detainees who had been impregnated during detention.[29] As growing numbers of detainees suddenly became pregnant, the camp quickly built a dedicated ‘lover’s room’ and required married detainees to engage in monthly conjugal relations with their husbands. In addition, the female detainees were forcibly fitted with IUDs. When Menzire complained to a Chinese superior that this practice was probably introduced to cover up incidents of rape in the camps, she was rudely ejected from her office. In Gulzira Aeulkhan’s camp, women were also coerced into having conjugal relations with their husbands, whether they wanted to or not.[30] Gulzira, who was forced to clean her camp’s ‘lover’s room’ discovered that it was also the very place where Han men paid money to rape Uyghur detainees.   Mihrigul Tursun, a Uyghur mother of triplets, said that during detention she and other women were given unknown drugs and injections that caused irregular bleeding and loss of menstrual cycles.[31] Doctors in the US later found she was infertile.[32] In the camp, she witnessed the death of a fellow female detainee who suffered from severe menstrual bleeding but was denied medical treatment.[33] Qelbinur Sidik similarly saw a detained teenage girl bleed from her genitals for two months before she passed away.[34]   State Policies Driving Declining Uyghur Birth Rates   Sexual abuses in the camps are not officially sanctioned by the government, but they fit into a systemic pattern of state violence against female Uyghur’s reproductive apparatus.[35] Here, I contextualise such sexual violence within Beijing’s wider efforts to ‘optimise’, contain, and dilute Xinjiang’s ethnic population through birth prevention, population transfers, coerced interethnic marriage, and ordering Han Chinese to stay in Uyghur homes. I discuss the political paranoia that drives its policies targeting Uyghurs and other groups, and conclude by arguing that attacks on Uyghur reproduction can be understood in the context of Beijing’s attritional campaign of settler colonialism. The Rome Statute of the International Criminal Court defines the following acts to constitute a crime against humanity: ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’.[36]   In 2019, while studying population data to estimate mass internment shares, I stumbled upon local records showing birth rates and death rates by prefectures and counties. Together, birth rates and death rates enable calculating natural population growth. The data indicated severe birth rate declines in Uyghur regions.[37] Between 2015 and 2018, natural population growth rates in the four southern Uyghur heartland prefectures declined by 73 percent.[38] In 2019, rates continued to decline. In a population-weighted sample of prefectures and counties with data for both 2018 and 2019, natural population growth rates fell from 5.2 to 1.7 per mille[39], a staggering decline for a 12-month period. In 2020 the official Xinjiang Statistical Yearbook stopped publishing birth rates by prefectures and counties.[40]   At first glance, declining birth rates in Uyghur regions appeared to be the logical result of the campaign of mass internment, which had especially removed Uyghur men from their homes.[41] However, a subsequent investigation showed that population growth was plummeting as the result of a concerted effort to prevent Uyghur births.[42]   In 2018, ‘zero birth control violation incidents’, a phrase previously not routinely used in the PRC or Xinjiang, became a standard family planning target. A particularly strict case was Hotan Prefecture, a region of 2.5 million persons that in 2019 planned to have no more than 21 birth control policy violations among its entire population.[43] In 2018, the region performed 243 sterilisations per 100,000 population, compared to 33 per 100,000 in the rest of the country.[44] By 2019, at least 80 percent of women of childbearing age in rural southern Xinjiang were subject to ‘birth control measures with long-term effectiveness’, including the placement of intrauterine devices (IUDs) or sterilisation.[45]   In 2017, former camp teacher Qelbinur Sidik was forced into a bus with four armed police and taken to a hospital where hundreds of women, all Uyghur, were lined up for IUDs to be inserted.[46] She protested in vain that she was nearly 50 years old, had only one child, and did not plan to have more. The authorities had notified her that if she resisted when the officers came for her, she would be placed into a tiger chair, a metal chair used for interrogations and torture.[47] ‘I was made to lie down and spread my legs, and the device was inserted. It was terribly violent. I was crying’.[48] Once inserted, IUDs could only be surgically removed. In 2018, when the state embarked on a campaign of mass sterilisation among ethnic populations, Sidik was forcibly sterilised.[49]   Starting in 2018, birth control violations were punishable with extrajudicial internment, and a leaked internal document (the Karakax List) showed that a violation of birth control measures was the most common reason for such internment .[50]  That year, individual Uyghur counties determined to sterilise up to a third of all women of childbearing age, and a Uyghur heartland prefecture published a blunt statement linking the new regionwide ‘free birth control surgery’ campaign with the intent to mass sterilise rural populations: ‘ Guide the masses of farmers and herdsmen to spontaneously carry out family planning sterilisation  surgery ’. [51]   Xinjiang’s ethnic regions are required to suppress population growth below certain targets. More recently, these have at times been near or below zero. For 2020, Kizilsu prefecture planned a 6.14 per mille reduction in its natural population growth rate, which would result in a negative 3.14 per mille growth target.[52] Similarly, for 2021, Aksu’s Xinhe County aimed at a birth rate of 6 per mille or less, which at the county’s posted death rate of 6.62 would result in negative population growth. For comparison, natural population growth rates in Uyghur regions between 2007 and 2016 ranged between 10 and 20 per mille, far higher than those among Han populations.[53]   ‘End the Dominance of the Uyghur Ethnic Group’: Beijing’s Campaign to ‘Optimise’ Xinjiang’s Ethnic Population Structure   While it is evident that Xinjiang instituted birth prevention policies of an unprecedented draconian nature, the intent behind these policies was initially unclear. Research on the statements of Xinjiang’s so-called scholar-officials, academics who are at the same time employed and funded by the government, has shed important light on this question.[54]   In a top-secret speech held in 2014, Xi Jinping had argued that ‘population proportion and population security are important foundations for long-term peace and stability’.[55] This exact statement was later quoted verbatim by a senior Xinjiang official in July 2020 when arguing that southern Xinjiang’s Han population share was ‘too low’ (see below). Other classified documents from 2017 lamented ‘severe imbalances in the distribution of the ethnic population’ and a ‘severely monoethnic’ population structure in southern Xinjiang, indicating concern over an overconcentration of Uyghurs.[56]   In 2015, Liao Zhaoyu, dean of the institute of frontier history and geography at Tarim University, discussed the question of Xinjiang’s Uyghur population at an academic event. When contemplating ‘methods to solve Xinjiang’s problems’, Liao said that in southern Xinjiang the state must ‘change the population structure and layout [and] end the dominance of the Uyghur ethnic group’.[57] In 2016, Liao argued that the ‘underlying reason’ for Xinjiang’s unrest and terrorism was the high concentration of Uyghur populations in southern Xinjiang.[58]   Xinjiang’s most high-profile and authoritative voice on this sensitive subject is probably Liu Yilei, deputy secretary-general of the party committee of Xinjiang’s Production and Construction Corps (XPCC), and dean of Xinjiang University’s Western China Economic Development and Reform Research Institute. At a July 2020 symposium with 300 experts and scholars from across China, Liu noted that despite all progress, ‘the root of Xinjiang’s social stability problems has not yet been resolved’.[59] To quote:   the problem in southern Xinjiang is mainly the unbalanced population structure. Population proportion and population security are important foundations for long-term peace and stability. The proportion of the Han population in southern Xinjiang is too low, less than 15%. The problem of demographic imbalance is southern Xinjiang’s core issue.[60]   A 2017 article published by two researchers from the Xinjiang Police Academy, argued that Uyghur ‘terrorism’ should be eradicated by ‘rapidly optimising the population structure’.[61]  The authors proposed concrete measures to mitigate the ‘human threat’ emanating from concentrated Uyghur populations by diluting ‘problem’ populations with ‘negative energy’ through the embedding of Han settler populations.   Taken together, the concerns expressed by Xinjiang’s scholar-officials regarding the Uyghur population centred around the following themes:[62]   Excessive ethnic population growth was creat ing  an idle rural surplus workforce that constituted a potential threat to national security. High ethnic population density combined with low mobility was breeding  a ‘hardened’ society with an ‘excessively strong atmosphere of religious belief’ creating an alleged breeding ground for religious ‘extremism ’. High ethnic population concentrations were giving rise to a dangerous sense of identification with their homeland, weakening identification with the Chinese state . H igh ethnic population ratios we re a national security risk for sensitive border regions.   This necessitated two strategies. First, to severely curb Uyghur population growth. Second, to dilute the Uyghur population through transfers of Uyghurs to other regions, and by promoting large-scale Han in-migration into Uyghur heartlands through systematic forms of settler colonialism. Concurrently, state policies transfer so-called ethnic rural surplus labourers from southern Xinjiang into coerced factory work placements in more industrialised regions and other provinces, an effort that according to international criminal law experts could constitute the crime against humanity of forcible transfer.[63]   Besides targeted birth prevention and the promotion of Han in-migration into Uyghur regions, the state has actively promoted interethnic marriage between the two groups through financial incentives and other means.[64] Chinese state corporations were incentivized to hold mass interethnic wedding ceremonies. The state further mandated ethnic families to be ‘paired’ with Han Chinese counterparts to promote ‘ethnic unity’. By late 2017, this so-called ‘Becoming Family’ program had paired approximately one million state officials as pseudo-’relatives’ with 1.5 million ethnic families.[65] Because many Uyghur and other ethnic men have been detained in camps and prisons, male Han Chinese ‘relatives’ assigned to Uyghur homes frequently ended up co-sleeping with female hosts, and ‘sleeping’ under the same roof was mandated by the policy.[66]   Qelbinur Sidik, the former camp teacher, had a Han man stay in her home:[67]   We were asked to ‘live together, cook together, eat together, learn together, sleep together’ with Han cadres assigned by the local government. Women must have a male Han cadre ‘relative’, and men must have a Han female ‘relative’.[68]   At night, Sidik’s Han ‘relative’ would come into her kitchen, kissing and touching her, while her husband stayed in another room. ‘He would strip down to his shorts and sexually harass me while I was cooking’.[69] In the kitchen, while groping her relentlessly, he showed her the state policy document which states that ‘relatives’ are to ‘cook together, do things together’.[70] He complained that she refused to sleep with him, given that other Uyghur women whom he stayed with were ‘happy to oblige’.[71] Together with officials from village-based work teams which regularly check on local families, the Becoming Family campaign represents an unprecedented invasion of a Han settler colonial population into occupied ethnic groups’ most private spaces.[72]   The Political Paranoia Driving Beijing’s War on the Uyghur Population   I argue that the scale and intensity of Xinjiang’s policies, the framing of entire ethnic groups as a ‘human threat’ and attendant extreme preoccupations with internment camp security, mass surveillance, and mass birth prevention, reflect a devolution into what experts have described as political paranoia.[73] Sean Roberts has suggested that Beijing’s stance towards the Uyghurs frames them almost as a type of ‘biological threat’ to society that must be contained.[74] Scholars of genocides and crimes against humanity have argued that political paranoia is a common feature behind many atrocity crimes.   Dirk Moses suggests that pre-emptive strikes against a perceived threat group indicate a political paranoia defined as an ‘interpretative disorder constituted by hysterical threat assessments’.[75] Paranoia is not purely delusional but rooted in a reality (such as a few Uyghurs perpetrating violent acts of resistance) that becomes greatly exaggerated through interpretation. Genocide scholarship on the Holocaust suggests that the Nazis were not just driven by racism, but also by a political paranoia which led to a radicalisation of anti-Jewish measures. The paranoid-schizoid position uses projective identification and splitting to project the hated parts of the self out and onto the ‘Other’, while simultaneously idealising the good within oneself.[76]   Political paranoia has arguably been a driving factor behind Beijing’s re-education campaign in Xinjiang.[77] In internal speeches held in 2014, Xi had initially delineated the ‘enemy’ as those who engaged in direct acts of violence against the state. Ultimately, however, anyone who cannot be controlled is ‘untrustworthy’ because they could conceivably end up resisting the state in some form.[78] This creates a devolutionary logic by which the ‘enemy’ is no longer just those who actually engage in violent resistance, but also persons who are potentially ‘untrustworthy’ because the state fails to ascertain their state of mind.   Moses describes this logic as a striving for ‘permanent security’, defined as the ‘unobtainable goal’ of pursuing ‘absolute safety’—being invulnerable to threats.[79] He argues that ‘[t]he paranoid and hubristic quest for permanent security escalates routine state…security practices’ to a point where the government indiscriminately targets entire groups, with indifference to collateral damage.[80] This quest then becomes the breeding ground for a mass atrocity.   Consequently, the pre-emptive internment of large numbers of ordinary non-Han citizens can be understood as political paranoia that feeds on exaggerated threat perceptions. This paranoia and the attendant desire to control the Uyghur population, its density, distribution and growth, could also explain systematic patterns of sexual assault against Uyghur women as an extension of the state project of settler colonialism.   Sexual Violence as Attritional Genocide: Attacks on Uyghur Reproductive Capacities are an Extension of Settler Colonialism   As a strategic frontier region, Xinjiang has a long history of settler colonialism and resource extraction by the Chinese state.[81] In 1884, the Qing authorities formally referred to it as ‘Xinjiang’ (‘New Frontier’). Since 1949, the PRC government has aimed to cement its control by dramatically increasing the Han population, which at that point made up only 6.7 percent of the region’s total populace.[82] By 1978, their share reached 41.6 percent. Han in-migration surged again in the 1990s and early 2000s. Besides growing economic activity of the Xinjiang Construction and Production Corps (XPCC), a state entity established in 1954 as a military-agricultural colony to facilitate large-scale Han in-migration, the Great Western Development project, a multi-billion RMB development project initiated by the central government, also led to an influx of Han settlers.[83] By 2018, however, Han population shares had declined to 31.6 percent, due to lower birth rates and out-migration resulting from Xinjiang’s deteriorating security situation and increased state oppression.[84]   To increase the Han population, the state redoubled its efforts to lure Han settlers from other parts of China. In 2017, the central government mandated an increase of Xinjiang’s settler population in southern Xinjiang by 300,000 by the year 2022.[85] It promised incoming young settler families several acres of arable land, well-paid government jobs, brand new apartments with four years free rent, comprehensive medical benefits, and additional generous monthly livelihood subsidy payments.[86]   In her work on ‘sexual violence as genocide’, Lisa Sharlach notes that while rape is often presented as a consequence rather than a component of conflict, sexualized degradation serves to strategically perpetuate a dominant’s group hegemony over a weaker ethnic population.[87] Sharlash refers to ‘state rape’ as systematic mass rape ‘perpetrated, encouraged, or tacitly approved by the institutions of the state’.   As in other atrocity contexts such as former Yugoslavia, Xinjiang’s leaders have denied incidents of sexual abuse and have not issued any publicly-available statements condoning them. Theoretically, sexual assaults against Uyghur and Kazakh female detainees could result from male sex drives. However, paranoid state perception of concentrated and growing Uyghur populations, coupled with the region’s increased geopolitical significance in the context of Xi Jinping’s signature Belt and Road Initiative, mean that sexual violence can be understood as but one component of a wider campaign of settler colonialism.   Taken together, the acts of Han police guards penetrating shackled Uyghur female detainees, gang-raping Uyghur men, forced sterilisation, sending Han men into the homes of Uyghur women, or forced interethnic marriage embody the ultimate intention behind the state’s settler colonial project.[88] While officials argue that sexual assault in camps violates government regulations, the presence of such violence is a logical consequence and expression of the systematic dehumanization, occupation and dispossession of Uyghur and Kazakh heartlands. Acts of rape go further than mere internment: by penetrating and thus occupying the bodies of the dispossessed, they turn state phantasies of ethnopolitical dominance into physical domination over their reproductive capacities.   Citing Lorenzo Veracini, Sean Roberts notes that while other forms of colonialism exploit host populations and therefore act more like a virus living off other living cells, settler colonialism favours lower population density as it is less interested in exploiting the population than the land and its resources.[89] Settler colonial efforts are therefore more akin to bacteria living on surfaces without needing a living host. Even so, rather than necessitating full ethnic cleansing, settler colonial campaigns may be content to destroy what Lemkin described as the ‘national pattern of the oppressed group’, imposing their pattern (ways of living) on ‘the oppressed population which is allowed to remain’.[90] Here, Beijing’s settler colonialism in Uyghur heartlands combines frontier with settler colonial elements as its two large-scale systems of state-imposed forced labour feed off the exploitation of the able-bodied ethnic workforce.[91]   Rather than being a process that can ‘erupt’ into ‘genocidal moments’, Pauline Wakeham argues that settler colonialism entails cumulative dispossessions that combine to a long-term attritional effect.[92] Drawing on Raphael Lemkin’s notion that genocide can be a process of protracted group disintegration rather than of rapid destruction, she suggests that settler colonialism exerts a slow violence that follows a logic of gradual dissolution. Benjamin Madley described ‘frontier genocide’ as a three-phased process, where in the final phase, indigenous populations are subjected to slow genocidal attrition through malnutrition, inadequate healthcare and violence.[93] Nazila Isgandarova’s work on the long-term effects of systemic rape explicates the various knock-on effects of initial acts of sexual violence, such as victims suffering from long-term mental and physical conditions that prevent them from being able to marry.[94] This results in long-term impacts on the capabilities of targeted groups to maintain numerical strength and to reproduce socio-communal structures that are the foundations of their survival.[95]   Whereas Hamas’ acts of sexual violence against Israeli and other women were carried out with the declared intent to physically destroy the Jewish race, systematic acts of rape and sexual abuse by Russian troops against Ukrainian women and by Han Chinese males against Uyghur females are best understood in the context of long-term campaigns designed to integrate and colonize subjugated populations.[96] Moscow and Beijing seek to eradicate the distinct identities in the regions they seek to or have occupied, weakening and decreasing the respective populations through acts of violence and birth prevention so that they can more readily impose the cultures of the ‘master races’.[97] These efforts represent forms of settler colonialism carried out with varying degrees of genocidal attrition, within which sexual violence and acts of sexual domination can play an integral part.[98]   Together with eliticide—the elimination of a targeted group’s intellectual, cultural, and spiritual elite through murder or lifelong imprisonment—attacks on the dignity and physiological functioning of the female reproductive apparatus are part of a systematic campaign intended to destroy a group ‘in part’, to facilitate its subjugation, integration, and erasure of identity. Adrian Zenz Adrian Zenz is Director and Senior Fellow in China Studies at the Victims of Communism Memorial Foundation. A German anthropologist known for his studies of the Xinjiang internment camps and persecution of Uyghurs in China, he is the author of numerous books and articles. [1] Ivan Watson and Rebecca Wright, ‘Allegations of shackled students and gang rape inside China’s detention camps’ ( CNN,  19 February 2021) < https://www.cnn.com/2021/02/18/asia/china-xinjiang-teacher-abuse-allegations-intl-hnk-dst/index.html > accessed 27 December 2023; Uyghur Tribunal, ‘Witness Statement: Tursunay Ziyawudun’ (Uyghur Tribunal: An International People’s Tribunal 2021) < https://uyghurtribunal.com/wp-content/uploads/2022/01/UT-211111-Tursunay-Ziyawudun.pdf > accessed 27 December 2023; Matthew Hill, David Campanale, and Joel Gunter, ‘‘Their goal is to destroy everyone’: Uighur camp detainees allege systematic rape’ ( BBC News , 2 February 2021) < https://www.bbc.com/news/world-asia-china-55794071 > accessed 27 December 2023; David Tobin and others, ‘State violence in Xinjiang - a comprehensive assessment. Submission of evidence to the Uyghur Tribunal’ (June 2021) < https://www.shu.ac.uk/-/media/home/research/helena-kennedy-centre/projects/pdfs/state-violence-in-xinjiang---a-comprehensive-assessment.pdf > accessed 27 December 2023, chapter 3. [2]   Uyghur Tribunal (n 1). [3]  ibid. [4] ibid. [5]   ibid; Asim Kashgarian, ‘Uyghur Activists in Exile Emboldened by Beijing’s Attacks’ ( Voice of America , 26 March 2021) < https://www.voanews.com/a/east-asia-pacific_uyghur-activists-exile-emboldened-beijings-attacks/6203805.html > accessed 27 December 2023. [6] Adrian Zenz, ‘The Xinjiang Police files: Re-education Camp Security and political paranoia in the Xinjiang Uyghur Autonomous Region’ (2022)   3 The Journal of the European Association for Chinese Studies   263; Adrian Zenz, ‘Public security minister’s speech describes Xi Jinping’s direction of mass detentions in Xinjiang’ ( ChinaFile , 24 May 2022) < https://www.chinafile.com/reporting-opinion/features/public-security-ministers-speech-describes-xi-jinpings > accessed 27 December 2023; James Millward, ‘China’s new Anti-Uyghur campaign’ ( Foreign Affairs, 23 January 2023) < https://www.foreignaffairs.com/china/chinas-new-anti-uyghur-campaign > accessed 27 December 2023; Adrian Zenz, ‘Thoroughly Reforming Them Towards a Healthy Heart Attitude: China’s Political Re-education Campaign in Xinjiang’ (2018) 38 Central Asian Survey 102; Adrian Zenz, ‘Wash Brains, Cleanse Hearts’: Evidence from Chinese Government Documents about the Nature and Extent of Xinjiang’s Extrajudicial Internment Campaign’ (2019) 7(11) Journal of Political Risk. [7] Sean Roberts, War on the Uyghurs: China’s Internal Campaign Against a Muslim Minority   (Princeton University Press 2020).   [8] Adrian Zenz and James Leibold,   ‘Securitizing Xinjiang: Police Recruitment, Informal Policing and Ethnic Minority Co-optation’ (2020) 242 The China Quarterly 324. [9] Adrian Zenz, ‘Innovating Repression: Policy Experimentation and the Evolution of Beijing’s Re-Education Campaign in Xinjiang’ (2024) Journal of Contemporary China; Fergus Shiel, ‘About the China cables investigation’ ( ICIJ, 23 November 2019)   < https://www.icij.org/investigations/china-cables/about-the-china-cables-investigation/ > accessed 27 December 2023. [10] OHCHR, ‘OHCHR Assessment of Human Rights Concerns in the XUAR’ (OHCR 2022). [11] Uyghur Tribunal, ‘Uyghur Tribunal Judgement: Beyond reasonable doubt the People’s Republic of China committed torture and crimes against humanity against the Uyghurs’ (Uyghur Tribunal: An International People’s Tribunal 2021). [12] Gideon Boas, James L Bischoff, and Natalie N Reid, International Criminal Law Practitioner Library : Elements of Crime Under International Law (11th edn, Cambridge University Press 2008). [13] Uyghur Tribunal, ‘Witness Statement: Qelbinur Sidik’ (Uyghur Tribunal: An International People’s Tribunal 2021) < https://www.uyghurtribunal.com/wp-content/uploads/2021/06/04-0930-JUN-21-UTFW-005-Qelbinur-Sidik-English-1.pdf > accessed 27 December 2023; Hill (n 1). [14]   Shiel (n 9); Uyghur Tribunal, ‘Witness Statement: Wang Leizhan’ (Uyghur Tribunal: An International People’s Tribunal 2021) < https://uyghurtribunal.com/wp-content/uploads/2021/06/07-1000-JUN-21-UTFW-022 > accessed 27 December 2023; Rebecca Wright and others, ‘‘Some are just psychopaths’: Chinese detective in exile reveals extent of torture against Uyghurs’ ( CNN, 5 October 2021) < https://edition.cnn.com/2021/10/04/china/xinjiang-detective-torture-intl-hnk-dst/index.html > accessed 27 December 2023. [15]  Rahile Omer was 14 years old on September 28, 2017 , when she was first detained ; Zenz (n 6).  [16] Anna Ferris-Rotman, 'Abortions, IUDs and sexual humiliation: Muslim women who fled China for Kazakhstan recount ordeals' ( Washington Post , 5 October 2019) < https://www.washingtonpost.com/world/asia_pacific/abortions-iuds-and-sexual-humiliation-muslim-women-who-fled-china-for-kazakhstan-recount-ordeals/2019/10/04/551c2658-cfd2-11e9-a620-0a91656d7db6_story.html > accessed 27 December 2023. [17]   Uyghur Tribunal, ‘Witness Statement: Gulzire Awulqanqizi’ (Uyghur Tribunal: An International People’s Tribunal 2021)  < https://www.uyghurtribunal.com/wp-content/uploads/2022/01/UT-211206-Gulzire-Aulhan.pdf > accessed 27 December 2023. [18] Written witness statements and interviews conducted by the author in late 2022. [19]  Uyghur Tribunal (n 1);  Uyghur Tribunal, ‘Witness Statement: Sayragul Sauytbay ’ (Uyghur Tribunal: An International People’s Tribunal 2021) < https://uyghurtribunal.com/wp-content/uploads/2022/01/UT-211109-Sayragul-S > accessed 27 December 2023; OHCHR (n 10); Human Rights Watch, ‘‘Break Their Lineage, Break Their Roots’: Chinese Government Crimes against Humanity Targeting Uyghurs and Other Turkic Muslims’ (Human Rights Watch 2021). [20] Uyghur Tribunal, ‘Witness Statement: Gulbahar Jelilova’ (Uyghur Tribunal: An International People’s Tribunal 2021) < https://uyghurtribunal.com/wp-content/uploads/2022/01/UT-Gulbahar-Jelilova.pdf > accessed 27 December 2023; Harris (n  1); Elizabeth M Lynch, ‘China’s attacks on Uighur women are crimes against humanity’ ( The Washington Post , 21 October 2019)  < https://www.washingtonpost.com/opinions/2019/10/21/chinas-attacks-uighur-women-are-crimes > accessed 27 December 2023; David Tobin, ‘Genocidal processes: Social death in Xinjiang’ (2022) 45(16) Ethnic and Racial Studies 93; Joanne Smith-Finley, ‘Why scholars and activists increasingly fear a Uyghur genocide in Xinjiang’ (2021) 23(3) Journal of Genocide Research 348. [21]   Uyghur Tribunal (n 19) [22] ibid 11; Wright (n 1). [23] ibid; compare Zenz (n 6). [24] Ruth Ingram, ‘Uyghur women have been disproportionately singled out for abuse in Xinjiang’ ( The China Project, 16 March 2023)   < https://thechinaproject.com/2023/03/16/uyghur-women-have-been-disproportionately-singled-out-for-abuse-in-xinjiang/ > accessed 27 December 2023. [25]  Uyghur Tribunal (n 20). [26] Ursula Gauthier, ‘‘They want to turn us into zombies’: the ordeal of the Uighurs in the Chinese camps’ ( Ursula Gauthier, 21 November 2019) < http://www.ursulagauthier.fr/they-want-to-turn-us-into-zombies-the-ordeal-of-the-uighurs-in-the-chinese-camps/ > accessed 27 December 2023. [27]   ibid; The Associated Press, ‘China cuts Uighur births with IUDs, abortion, sterilization’ ( AP News , 29 June 2020) accessed 27 December 2023. [28] Ferris-Rotman (n 16). [29] Interview with an anonymous Uyghur witness, conducted by unnamed interlocutors in Kazakhstan. Used with permission. [30]  Uyghur Tribunal (n 17)  13. [31] CBS News, ‘Uighur woman details horrific abuse in China internment camp’ ( CBS News,  27 November 2018) < https://www.cbsnews.com/news/china-uighur-woman-abuse-chinese-internment-camp-muslim-minorities-xinjiang/ > accessed 27 November 2023. [32] Shosuke Kato and Kenji Kawase, ‘Xinjiang: What China shows world vs. what former detainee describes’ ( Nikkei Asia, 10 August 2019) < https://asia.nikkei.com/Politics/Xinjiang-What-China-shows-world-vs.-what-former-detainee-describes > accessed 27 December 2023; Uyghur Tribunal, ‘Witness Statement: Mihrigul Tursun’ (Uyghur Tribunal: An International People’s Tribunal 2021) < https://uyghurtribunal.com/wp-content/uploads/2021/06/06-1650-JUN-21-UTFW-014-Mihrigul-Tursun-English.pdf > accessed 27 December 2023. [33] Congressional-Executive Commission on China ‘Testimony of Mihrigul Tursun, Hearing: The Communist Party’s Crackdown on Religion in China’ (Congressional-Executive Commission on China 2018); Ivan Watson and Ben Westcott, ‘Uyghur refugee tells of death and fear inside China’s Xinjiang camps’ ( CNN , 21 January 2019) < https://edition.cnn.com/2019/01/18/asia/uyghur-china-detention-center-intl/index.html > accessed 28 December 2023. [34] The Select Committee on the CCP, ‘Hearing Notice: The Chinese Communist Party's Ongoing Uyghur Genocide’ (23 March 2023) < https://selectcommitteeontheccp.house.gov/committee-activity/hearings/hearing-notice-chinese-communist-partys-ongoing-uyghur-genocide > accessed 28 December 2023, 37:35-37:55; Alex Willemyns, ‘Uyghurs tell Congress of gang rape, shackles and sterilization’ ( RFA , 24 March 2023) < https://www.rfa.org/english/news/uyghur/genocide-select-committee-03242023125434.html > accessed 28 December 2023. [35] Adrian Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control: The CCP’s Campaign to Suppress Uyghur Birthrates in Xinjiang’ ( Jamestown Foundation, 28 June 2020)  < https://jamestown.org/program/sterilizations-iuds-and-mandatory-birth-control-the-ccps-campaign-to-suppress-uyghur-birthrates-in-xinjiang/ > accessed 3 January 2024; Adrian Zenz, ‘‘End the Dominance of the Uyghur Ethnic Group’: An Analysis of Beijing’s Population Optimization Strategy in Southern Xinjiang’ (2021) 40(3) Central Asian Survey   291; The OHCHR report speaks of ‘credible’ allegations of sexual violence, torture and rape in Xinjiang’s internment camps, see OHCHR (n 10). [36] United Nations, ‘Crimes Against Humanity’ ( United Nations Office on Genocide Prevention and the Responsibility to Protect ) < https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml > accessed 3 January 2024. [37] Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control’ (n 35). [38]  National Bureau of Statistics of China, ‘China Statistical Yearbook 2016’   (China Statistics Press 2016); National Bureau of Statistics of China, ‘China Statistical Yearbook 2018’   (China Statistics Press 2018); National Bureau of Statistics of China, ‘China Statistical Yearbook 2019’   (China Statistics Press 2019). [39] ‘Per mille’ refers to ‘per thousand’. [40]  National Bureau of Statistics of China, ‘China Statistical Yearbook 2020’   (China Statistics Press 2020).   [41] Adrian Zenz, ‘Wash Brains, Cleanse Hearts’ (n 6). [42]   Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control’ (n 35); Compare The Associated Press ‘China cuts Uighur births with IUDs , abortion, sterilization’ ( AP News , 29 June 2020) < https://apnews.com/article/269b3de1af34e17c1941a514f78d764c > accessed 3 January 2024. [43]  Hotan Prefecture Health and Family Planning Commission ‘ 2019 Budget Disclosure ’ (Hotan Prefecture 2019) . [44] Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control’ (n 35). [45] ibid. [46] The Associated Press (n 42); Ruth Ingram, ‘Confessions of a Xinjiang Camp Teacher’ ( The Diplomat , 17 August 2020) < https://thediplomat.com/2020/08/confessions-of-a-xinjiang-camp-teacher/ > accessed 3 January 2024. [47] Emma Graham-Harrison and Lily Kuo, ‘Muslim minority teacher, 50, tells of forced sterilization in Xinjiang, China’ ( The Guardian , 4 September 2020) < https://www.theguardian.com/world/2020/sep/04/muslim-minority-teacher-50-tells-of-forced-sterilisation-in-xinjiang-china > accessed 3 January 2024. [48] Ingram (n 46). [49] Graham-Harrison and Kuo (n 47). [50] Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control’ (n 35); Adrian Zenz, ‘The Karakax List: Dissecting the Anatomy of Beijing’s Internment Drive in Xinjiang’ (2020) 8(2) Journal of Political Risk.  [51]  ibid; Kizilsu Kirghiz Autonomous Prefecture ‘Summary of poverty alleviation development work in the first half of 2018 and work plan for the second half’ (Kizilsu Kirghiz Autonomous Prefecture, 2018).   [52] Kizilsu Prefecture Government, ‘Public Explanation of the 2019 Kizilsu Kyrgyz Autonomous Prefecture Health Commission Departmental Final Accounts’ (Kizislu Prefecture Government, 10 August 2020). [53] See Zenz, ‘End the Dominance of the Uyghur Ethnic Group’ (n 35). [54] ibid. [55] Adrian Zenz, ‘The Xinjiang Papers: An Introduction’ (The Uyghur Tribunal, 27 November 2021)  < https://uyghurtribunal.com/wp-content/uploads/2021/11/The-Xinjiang-Papers-An-Introduction-1.pdf > accessed 3 January 2024. [56] ibid. [57] International Legal Research Net, ‘The 41st Session of the International Law Lecture – How to enlighten the key of Social Stability and Long-term Security in Xinjiang’ (2015) < http://web.archive.org/web/20210305011946/http://sil.cupl.edu.cn/info/1040/1013.htm > accessed 3 January 2024. [58] Zhaoyu Liao, ‘‘Yidai yilu’ beijing xia ruhe yi ‘wenhua kepu’ pudian Xinjiang changzhijiu’an jishi’ (2016) 4 Journal of Kashgar University 46 . [59]  The speech is summarized on Xinjiang University’s website at Xinjiang University School of Economics and Management. Liu Yilei participated in the ‘Chinese Economists 50 Forum’ and spoke as a representative. [60] Liu Yilei ‘Liu Yilei: Face the Problem, Deal With Each Issue on Its Merits, Implement Policy Precisely, and Promote the Formation of a New Pattern in the Development of the Western Region’ ( China Think Tanks , 25 July 2020) < https://www.chinathinktanks.org.cn/content/detail?id=npc2ev31 > accessed 3 January 2024 [61] Gao, Xue-Jing, and Li Ming, ‘Research into the Core Content and the Promoting Tactics of the Counter-terrorist Strategy of Embedding in Xinjiang’ (2017) 5 Journal of Beijing Police College   26. [62] Zenz, ‘End the Dominance of the Uyghur Ethnic Group’ (n 35). [63] Adrian Zenz, ‘Coercive Labor and Forced Displacement in Xinjiang’s Cross-Regional Labor Transfer Program: A Process-Oriented Evaluation’ ( Jamestown Foundation, March 2021)   < https://jamestown.org/product/coercive-labor-and-forced-displacement-in-xinjiangs-cross-regional-labor-transfer-program/ > accessed 3 January 2024; Adrian Zenz, ‘The Conceptual Evolution of Poverty Alleviation Through Labour Transfer in the Xinjiang Uyghur Autonomous Region’ (2023) 42(4) Central Asian Survey 649; Adrian Zenz, ‘Coercive Labor in the Cotton Harvest in the Xinjiang Uyghur Autonomous Region and Uzbekistan: A Comparative Analysis of State-Sponsored Forced Labor’ (2023) 56(2) Communist and Post-Communist Studies 1. [64] Andréa J. Worden and others, ‘Forced marriage of Uyghur Women: State policies for interethnic marriages in East Turkistan’ ( Uyghur Human Rights Project, 16 November 2022) < https://uhrp.org/report/forced-marriage-of-uyghur-women/ > accessed 3 January 2024; Gulchehra Hoja, ‘Matchmaking app offers Uyghur Brides for Han Chinese men’ ( Radio Free Asia , 14 November 2023) < https://www.rfa.org/english/news/uyghur/matchmaking-app-11142023094007.html > accessed 3 January 2024. [65] Xinjiang Documentation Project, ‘The ‘Jieqin’ Campaign: Ethnic Integration, Surveillance, and Grassroots Governance’ ( The University of British Columbia ) < https://xinjiang.sppga.ubc.ca/chinese-sources/chinese-academic-discourse/jieqin-%E7%BB%93%E4%BA%B2/ > accessed 4 January 2024. [66] Shohret Hoshur, ‘Male Chinese ‘relatives’ assigned to Uyghur homes co-sleep with female hosts’ ( Radio Free Asia, 31 October 2019)  < https://www.rfa.org/english/news/uyghur/cosleeping-10312019160528.html > accessed 4 January 2024. [67] The Select Committee on the CCP, ‘Testimony of Qelbinur Sidik’ (23 March 2023) < https://docs.house.gov/meetings/ZS/ZS00/20230323/115543/HHRG-118-ZS00-Wstate-SidikQ-20230323.pdf > accessed 4 January 2024. [68] Ruth Ingram, ‘Sexual abuse of Uyghur women by CCP cadres in Xinjiang: A victim speaks out’ ( Bitter Winter , 19 September 2020) < https://bitterwinter.org/sexual-abuse-of-uyghur-women-by-ccp-cadres-in-xinjiang/ > accessed 4 January 2020. [69] ibid. [70] The Select Committee on the CCP (n 34), 40:50-41:20. [71] The Select Committee on the CCP (n 67). [72] Zenz (n 50). [73] Zenz (n 6). [74] Roberts (n 7). [75] A Dirk Moses, ‘Paranoia and Partisanship: Genocide Studies, Holocaust Historiography, and the ‘Apolitical Conjuncture’’ (2011) 54(2) The Historical Journal 553; Compare Robert S Robins and Jerrod M Post, Political Paranoia: The Psychopolitics of Hatred  (Yale University Press 1997). [76] Robins and Post (n 75) . [77] Zenz (n 6). [78] Zenz (n 9). [79] A Dirk Moses, The Problems of Genocide: Permanent Security and the Language of Transgression  (Cambridge University Press 2021). [80] ibid. [81] James A Millward, Eurasian Crossroads: A History of Xinjiang (Columbia University Press 2021); Roberts (n 7); Joanne Smith-Finley, ‘Tabula rasa: Han settler colonialism and frontier genocide in ‘re-educated’ Xinjiang’ (2022) 12(2) Journal of Ethnography Theory 341. [82] Statistical Bureau of Xinjiang Uygur Autonomous Region, ‘1990 Statistical Yearbook’ (1990) table 3-1; Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control’ (n 35). [83] Zenz, ‘Coercive Labor in the Cotton Harvest’ (n 63). [84] Zenz, ‘Sterilizations, IUDs, and Mandatory Birth Control’ (n 35). [85] Zenz, ‘End the Dominance of the Uyghur Ethnic Group’ (n 35). [86] ibid. [87] Lisa Sharlach, ‘State rape: Sexual violence as genocide’ in Kenton Worcester, Sally Avery Bermanzohn, and Mark Ungar (eds.) Violence and Politics (Routledge 2002).  [88] In this, I concur with Rachel Harris’ testimony to the Uyghur Tribunal, in which she argues that these forms of sexual violence are interconnected, meaning that ‘sexual violence is an integral part of the planned transformation of the Xinjiang region’; Uyghur Tribunal, ‘Transcript: 4-7 June 2021’ (Uyghur Tribunal 2021) 66. [89]  Roberts (n 7) . [90] Pauline Wakeham, ‘The Slow Violence of Settler Colonialism: Genocide, Attrition, and the Long Emergency of Invasion’ (2021) 24(3) Journal of Genocide Research, 337, 344. [91] Adrian Zenz, ‘Innovating penal labor: Reeducation, forced labor, and coercive social integration in the Xinjiang Uyghur Autonomous Region’ (2023) 90 The China Journal 27; Zenz, ‘The Conceptual Evolution of Poverty’ (n 63). [92] Wakeham (n 89). [93] Benjamin Madley, ‘Patterns of frontier genocide 1803–1910: The Aboriginal Tasmanians, the Yuki of California, and the Herero of Namibia’ (2004) 6(2) Journal of Genocide Research 167; Compare Smith-Finley (n 80). [94] Nazila Isgandarova, ‘Post-traumatic growth and resilience in victim-survivors of genocidal rape’ (2023) 72 Pastoral Psychology 417. [95] For the Xinjiang context, see for example Tobin (n 20). [96] Bruce Hoffman, ‘Understanding Hamas’s genocidal ideology’ ( The Atlantic , 10 October 2023) < https://www.theatlantic.com/international/archive/2023/10/hamas-covenant-israel-attack-war-genocide/675602/ > accessed 4 January 2024. After 7 October 2023, Israel responded with an invasion that has killed tens of thousands of Palestinians. [97] Peter Dickinson, ‘Putin admits Ukraine invasion is an imperial war to ‘Return’ Russian land’ ( Atlantic Council , 10 June 2022) < https://www.atlanticcouncil.org/blogs/ukrainealert/putin-admits-ukraine-invasion-is-an-imperial-war-to-return-russian-land/ > accessed 4 January 2024; Orysia Kulick, ‘Gender and violence in Ukraine: Changing how we bear witness to war’ (2022) 64(2-3) Canadian Slavonic Papers 190; Zenz (n 55). [98]  Smith-Finley (n 80).

In Indianapolis in 1984, an unusual political alliance was formed. On one side was the staunchly conservative city council and on the other were two of America’s foremost radical feminists, Catharine MacKinnon and Andrea Dworkin. The issue at stake was pornography—the council saw it as an obscene offence against Christian morality, whilst MacKinnon and Dworkin argued that pornography was responsible for violence against women and their subordination to men. At the invitation of the council, MacKinnon and Dworkin drafted an ordinance banning ‘the production, sale, exhibition, or distribution of pornographic materials’. Critics assailed the ordinance as an attack on freedom of speech and a little more than a year after the ordinance was passed in Indianapolis, it was struck down in federal court on First Amendment grounds. But that was not the end of the argument. MacKinnon[1] did not just argue that pornography subordinated women, but that it silenced them too, a claim developed by Rae Langton[2] and Jennifer Hornsby.[3] Langton, on whose work this essay focuses, suggests that pornography itself might plausibly violate the free speech of women. Therefore, invoking free speech does not provide a straightforward defence of pornography—rather, pornography presents a clash between the free speech rights of pornographers and those of women.   At first glance, the claim that pornography silences women might seem confused. Pornography does not seem to stop women speaking, so how can it silence them? Langton disagrees. Drawing on JL Austin’s[4] notion of speech acts, she argues that pornography literally silences women. I elaborate Langton’s argument below and then offer some objections.   Langton’s account   Langton draws heavily from Austin’s notion of speech acts. A speech act is an utterance which performs an action. This action can be further split into three components: a locutionary act, a perlocutionary act, and an illocutionary act. The locutionary act refers to the very uttering of a meaningful utterance. The perlocutionary act refers to the production of certain effects in the listener by the utterance. The illocutionary act refers to the action performed in making some utterance, the action the utterance constitutes. Take the utterance ‘I do’, said by the bride to the groom during a marriage ceremony. The locutionary act comprises saying ‘I do’, meaning she takes this man to be her husband. By  saying that, the bride may delight the groom—this is the perlocutionary act. In  saying it she marries the groom—this is the illocutionary act. Speech acts are ubiquitous and varied, reflecting the diverse uses of language. Illocutionary acts, for example, range from warning, to predicting, to questioning, to boasting, and so on. It is this category Langton primarily focusses on. She argues pornography silences women by preventing their illocutions.   What illocution some utterance performs, if any, is determined by certain conditions set by convention. Some illocutions, eg sexual consent, require that the speaker intend to perform that illocution. Others require that certain authority perform—only a judge can sentence a criminal. Langton[5] (as well as Hornsby[6] and Austin[7]) notably holds that, excepting illocutions bound up with formal institutions (eg sentencing), ‘uptake’ is a necessary condition for the performance of an illocution. That is, the listener must recognise the intention of the speaker to make some illocution, for the speaker to successfully do so.[8] Donald Davidson[9] gives a famous example of where uptake is not secured. An actor in a play might intend to warn the audience of a fire by shouting, ‘Get out! Fire!’, but the audience might not recognise this intention, rather believing the utterance to be part of the actor’s performance. Davidson suggests that here the actor tries  to warn the audience, but fails, because uptake is not secured.   Langton argues that speech acts can silence other speech acts, and notably silence persons’ illocutions. One is illocutionarily silenced or ‘disabled’ when one can make some utterance, but it not only fails to have its intended effect, but also fails to perform the very action it was intended to. The foreperson of the jury might intend to sentence the defendant (having got confused about court procedure), but their utterance, ‘I sentence you to three months imprisonment’, does not perform the illocution of sentencing as they lack the authority to sentence in the first place. Only the presiding judge has the requisite authority to perform the illocution of sentencing a defendant. Plausibly, a party’s speech acts can silence another’s illocutions, if they set the conditions for an illocution, such that the other party’s utterances fail those conditions. This is the case in the foreperson example. The speech act constituting the law governing courtroom proceedings, sets the conditions for an utterance to perform the illocution of sentencing someone, such that a foreperson cannot perform that illocution.   Accordingly, pornography will illocutionarily silence women if it sets the conditions on certain illocutions, such that women cannot perform them. Legal speech sets very clear conditions on certain illocutions, such as sentencing. But speakers can set conditions by their utterances more informally, by gradually building up precedents and conventions. This is what Langton suggests happens in the case of pornography. In the sexual context, pornographic speech sets the conditions of refusal. Pornography portrays women as always sexually available, or as incapable of agency. It thereby teaches some men simply not to recognise that women’s utterances such as ‘no’ are intended to perform illocutions of refusal. It is not that they recognise women’s refusals but ignore them. Instead, they quite literally do not take women to intend to refuse sex by saying ‘no’, thinking they are instead being ‘coquettish’, for example. Given successful illocution typically requires uptake, the influence of pornography thus prevents women’s utterances in the sexual context from counting as refusals.   Importantly, Langton also argues that pornography perlocutionarily silences women. Pornography frequently presents sexual violence as titillating and woman as sex objects. It thereby inculcates in certain men desires to rape women, and induces them to see women as mere things, undeserving of respect. These attitudes influence how men treat the women they encounter in sexual contexts. In these cases, although men recognise that women’s utterances such as ‘no’ are intended to refuse sex, and so women successfully perform illocutions of refusal, men ignore these refusals. The intended effect of women’s utterances, to prevent men having sex with them, is not realised, and so they are perlocutionarily disabled, ie raped.   Objections to Langton   An initial worry for Langton’s argument is that if, by failing to recognise their intentions, men prevent women’s utterances during sex from counting as refusals, then women do not refuse sex with men who rape them and so are not ‘genuinely’ raped. I believe this worry is misplaced. Firstly, simply not refusing sex may be insufficient for sex to be consensual—that may require an active act of consent by each partner. But more importantly, in these situations, women do not refuse sex with men only insofar as their utterances cannot constitute refusals. They still obviously intend  to refuse sex by such utterances, intend not to consent, and I suggest that is clearly enough to establish that they have been raped.   A second worry is that there is tension between the claims that pornography both perlocutionarily and illocutionarily silences women. In the first instance, pornography teaches men to override the refusals of women, (ie to ignore what they recognise as women’s refusals), whilst in the second case pornography teaches men not to recognise women as refusing at all. It might be unclear how pornography can do both, albeit one may argue that pornography can teach men different attitudes, depending on the sort of pornography they consume or on the sexual context in which they find themselves.   But the contention that pornography illocutionarily disables women relies on a further empirical claim we may doubt—that rapists do, at least sometimes, sincerely and consciously believe that women’s utterances during rape are not intended to refuse sex. Perhaps the closest documented example of this is the UK court case DPP v Morgan ,[10] where the defendants claimed that they believed their   victim wanted to have sex with them, as they had been assured by her husband that she was ‘kinky’ and would merely feign refusal. Even here, however, the judge notably ruled that the men could not have genuinely believed her protestations were insincere. So, one may think that women do  secure uptake on their intentions to refuse sex, and so do genuinely refuse – it is just that men disregard such refusals. The rape of women is then an instance of perlocutionary not illocutionary disablement. This might seem irrelevant; after all, whether women are perlocutionarily or illocutionarily silenced by pornography, they are still silenced. But as noted, anti-pornography feminists often want to argue that the pornographic silencing of women violates their rights to free speech. Literally being rendered incapable of refusing, ordering, advising, etc, as in cases of illocutionary silencing, plausibly violates free speech. But as Alexander Bird[11] argues, it might appear perlocutionary frustration is not a free speech infringement. A right to free speech would imply one’s arguments, intended to persuade, can never permissibly be found uncompelling, for example. Therefore, if pornographic speech perlocutionarily silences women, but not illocutionarily, then it plausibly does not violate their free speech.   But one might argue that given massive underreporting of sex crimes, it is unsurprising that there is little documented evidence of men failing to recognise the refusals of women. Indeed, victims may be especially unlikely to report their rape when the rapist did not apparently realise their crime, for fear that such ignorance would be deemed to exonerate their attacker, or from rationalising their rapist’s actions as ‘not really meant’ or less serious for being unintended. Langton[12] draws on surveys of British adolescents to argue that rape may well occur where the rapist does not realise the woman intends to refuse. These surveys suggest that pornography is, to some extent, taken as epistemically authoritative in the sexual domain, ie taken to accurately depict sexual desires and dynamics. Multiple respondents said that porn ‘gives you the idea that girls are easy’, or that ‘all girls want sex’. This may suggest pornography does propagate the notion that women never refuse sex.   Leaving this empirical question aside, there is a further objection to Langton’s claim that pornography silences women. Following Bird[13] and Peter Strawson,[14] one can deny uptake is necessary to produce illocutions. Accordingly, even if pornography teaches men not to recognise women’s intentions to refuse sex, this does not illocutionarily silence women. We have already seen uptake is not necessary for institutional illocutions such as sentencing, which Langton and Hornsby argue are an exception. But consider whining and rejoicing, both of which are non-institutional illocutions and neither of which require uptake. One can whine without intending to, and one can rejoice without any audience present. In neither case does any listener recognise one’s intentions to perform these illocutions.   Even considering the classic example of warning, it is unclear that uptake is necessary. Recall Davidson’s actor—Davidson maintains that the actor is illocutionarily disabled, and so fails to warn the crowd of the fire. As Bird[15] argues, however, this plausibly runs contrary to our intuitive assignments of moral responsibility. If the audience eventually sees the smoke and flees, they could not afterwards reasonably complain that they were not warned of the fire, precisely because they were  warned. But perhaps this point is not decisive. One could maintain that the audience was not  warned, and that they cannot complain about this, simply because no third party was responsible for their not being warned. Rather it was the audience itself, by obtusely failing to take up the actor’s intention to warn, that caused themselves not to be warned. I think the point is brought out by a comparison between two cases: the original case where the actor exclaims ‘Get out! Fire!’, intending to warn the audience but uptake is not secured, and a case where the actor intends to warn with their utterance, but uptake is not secured as they only utter terrified gibberish. Langton deems both cases equivalent; neither actor warns because neither secures uptake. But I suggest that, intuitively, the cases are different. The former actor succeeds in doing something, whereas the latter does not—namely, they manage to utter a genuine warning. That warning is not heeded, and so they are perlocutionarily disabled, but they are not illocutionarily silenced.   As there are not obvious examples of illocution requiring uptake, we should perhaps doubt uptake is necessary for refusal. An arrogant chef who cannot even conceive  of someone disliking their food, might never recognise a person’s intentions to refuse more food from them. But if one says ‘No, thank you’ in response to such an offer, as Bird argues, it is intuitive that one has still refused, even if this refusal is not registered. Analogously, even if a man does not recognise that a woman intends to refuse sex by her utterance, and so rapes her, she still performs the illocution of refusing sex. Again, she is perlocutionarily disabled, not illocutionarily. As established, perlocutionary disablement cannot constitute the sort of silencing Langton attributes to pornography.   Conclusions   Given free speech defences of pornography, it might seem politically advantageous for feminists to claim that pornography silences women in some near-literal sense, and so unambiguously violates their free speech. But given the above problems, perhaps the claim should be taken less literally. As Finlayson[16] suggests, we can understand the claim simply to emphasise the intimate and powerful way in which pornography prevents women from making themselves understood and determining how they are perceived. I suggest it is in this sense, not a strict illocutionary sense, that pornography silences women in inducing men not to recognise their refusals of sex. This recasting need not close off politically powerful arguments for regulating pornography. By silencing women in Finlayson’s sense, pornography plausibly leads to sexual violence. And opponents of pornography can still invoke free speech—perhaps the most influential justification of free speech is that it is conducive to the spread of truth. That is surely not true of pornography, which perpetuates myths about female sexuality, and so plausibly merits less protection under a right to free speech. I suggest that although the claim that pornography silences women cannot be understood in illocutionary terms, there are other philosophically and politically powerful ways of construing it, which offer more promising results. Adam Rachman   Adam Rachman graduated from Peterhouse, Cambridge, with a degree in Philosophy in 2020. He will be pursuing graduate study at Oxford or Cambridge in October 2021, with a focus on political philosophy. [1] Catharine A MacKinnon, Only Words  (Harvard University Press 1993). [2] Rae Langton, ‘Speech Acts and Unspeakable Acts’ (1993) 22(4) Philosophy and Public Affairs 293. [3] Jennifer Hornsby and Rae Langton, ‘Free Speech and Illocution’ (1998) 4(1) Legal Theory 21. [4] JL Austin, How to Do Things with Words . (Oxford University Press 1975). [5] Langton (n 2) [6] Hornsby and Langton (n 3). [7] Austin (n 4). [8] The defendant need not recognise the judge’s intention to sentence them with some utterance, for the judge to do so. [9] Donald Davidson, ‘Communication and Convention’ (1984) 59(1) Synthese 3. [10]  DPP v Morgan  [1975] UKHL 3. [11] Alexander Bird, ‘Illocutionary Silencing’ (2002) 83(1) Pacific Philosophical Quarterly 1. [12] Rae Langton, ‘Is Pornography like the Law?’ in Mari Mikkola (ed), Beyond Speech: Pornography and Analytic Feminist Philosophy  (Oxford University Press 2017). [13] Bird (n 11). [14] Peter F Strawson, ‘Intention and Convention in Speech Acts’ (1964) 73(4) The Philosophical Review 439. [15] Bird (n 11). [16] Lorna Finlayson, ‘How to Screw Things with Words’ (2014) 29(4) Hypatia 774.

A word from the Editor-in-Chief, Alexander (Sami) Kardos-Nyheim   The last edition of the Journal ended with these words, from Léon Bloy:   ‘Man has places in his heart which do not yet exist, and into them enters suffering, in order that they may have existence’.   This edition is ultimately about human suffering and how it has affected the domains of law, politics, and art. These three domains have been shaped to a significant extent by what Robert Burns might have called ‘Man’s inhumanity to Man’, and the urge to limit it and prevent its reoccurrence. Law, politics, and art are not just three fields that are external products of a society. They are projections of what is going on within us as human beings; of the instinct to understand the world, structure it, control it, express oneself upon it, appreciate its complexity and beauty, and to live a fuller life. Human rights abuses have brought tragedy to the world; but they have also prompted huge developments in the fields of law, politics, and art. Amidst the destruction—past and present—there is a human instinct to learn from mistakes and achieve a higher level of consciousness. This is one interpretation of Bloy’s words: that inhumanity forces us, in turn, to forge new levels of humanity.     I started the Journal because I wanted to create a forum for balanced and calm thinking at a time of clash and chaos. Nowhere is this harder to achieve than with this subject matter. As illustrated by the actions of American soldiers against German officers during the liberation of Dachau in April 1945, it is difficult to remain calm and balanced when faced with human atrocities. Undoubtedly this edition reflects that difficulty. But this edition also constitutes an important collection of individuals from our three fields of focus who have wrestled with this challenge throughout their professional or personal life, and significantly contributed to the world.   I am pleased to present our first Special Edition, and our third published edition since I started the Journal three years ago. These have been three rich years in which we have grown a community of contributors spanning Nobel Laureates to Cypriot monks, Supreme Court Judges to national museum curators, artists to law students. We are also blessed with a wide community of engaged readers from around the world.   To that community, I present the risk that this Special Edition also carries. Focusing on a specific theme requires curation. That is precisely what I was trying to get away from when the Journal began. I wanted to allow for free thinking not constricted by categorisation or intrusive editorial intervention. On the other hand, to address a theme coherently, a level of structure is required—and we have ensured that our editors continue the Journal ’s practice of light-touch revisions. To break up the structure and introduce space to think, we have woven in freestanding arts articles that do not fit into specific chapters, but which are relevant to the wider subject matter of this Special Edition. See these as an opportunity to draw breath between powerful and at times heavy articles.   ‘The Sleep of Reason produces Monsters’, reproduced below, is the 43rd plate from an album of prints by Francisco de Goya entitled Los Caprichos  (‘The Fantasies’). It can be found in the Fitzwilliam Museum in Cambridge and is perhaps Goya’s best-known etching. The point, while overused, is clear: reason promises an escape from base human instincts. My fear, however, is that we are ‘over-reasoning’ in today’s political and legal discourse, which at times feels disembodied from the heart and the creative instinct—or whatever you call that which cannot be explained but makes us human.   What is less known about this particular plate of Goya’s is this added inscription, by the artist:   Imagination abandoned by reason produces impossible monsters: united with her, she is the mother of all arts and the source of their wonders.   Just as reason should not abandon imagination, nor should imagination abandon reason. With only one of these, we are indeed liable to become monsters; with both, we become capable of something better. This is why we are The Cambridge Journal of Law, Politics, and Art . The Sleep of Reason Produces Monsters (Francisco Goya y Lucientes 1799, etching and aquatint, 30.48 x 20.32 cm). © Paul Rodman Mabury Trust Fund

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

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

Introduction   Legal dramas often focus on the climax of courtroom arguments and verdicts. In doing so, they gloss over crucial aspects of the legal process: determining the appropriate jurisdiction for a claim, and the subsequent enforcement of a judgment or award.   Determining jurisdiction takes place at the start of every claim. It is the process of deciding which court or adjudicatory body has authority to decide a particular legal claim. This determination can play a fundamental role in whether justice is achieved. Determining jurisdiction is not always easy, however. Indeed, it can be an extraordinarily complex question, and there may be no clear right answer.   Enforcement occurs at the end of a claim. It involves the practical application and execution of a court’s ruling or judgment, whereby the successful party can monetise the judgment.   The two key questions of where to file a lawsuit and how to effectively enforce a judgment are at the forefront of every practitioner’s mind. The unique characteristics of cryptoassets, including decentralised control and often pseudonymous ownership, mean that significant challenges can arise in answering these questions. Addressing such challenges is the focus of this article.   Are cryptoassets property?   Cryptoassets have become a distinct category of digital asset. They primarily use blockchain technology—a decentralised ledger system—and record transactions over a software network of participants and network-instantiated data (ie, data that comes into existence through interactions within a network, rather than being pre-existing), providing security and anonymity. Cryptocurrencies such as Bitcoin and Ethereum are the most well-known forms of cryptoasset. They operate across borders and are independent of central banks. The scope of cryptoassets extends to other assets such as ‘utility tokens’, which provide access to services, and ‘security tokens’, which represent stakes in assets or ventures, such as a company. English law’s classification of cryptoassets is nuanced. Traditional English legal thinking divides property into ‘things in possession’ (tangible objects), and ‘things in action’ (the enforceable rights associated with the property). Cryptoassets such as non-fungible tokens (NFTs) challenge this binary classification. They lack the physicality of ‘things in possession’ and do not give rise to the typical enforceable claims or rights of ‘things in action’. The UK Jurisdiction Taskforce—a body established by the UK Government, the Judiciary, and the Law Society to promote the use of technology in the UK’s legal sector—has therefore proposed a third category that treats cryptoassets as a novel form of property. This classification is consistent with the standards set out in the landmark National Provincial Bank v Ainsworth   [1965] AC 1175  case, which require that property be definable, identifiable, transferable to third parties, and have a certain degree of permanence or stability.   Despite their intangible nature and volatility in value, cryptoassets generally meet the National Provincial Bank  criteria. This is reflected in the pragmatic approach that the English courts have taken. For example, in AA v Persons Unknown & Ors, Re Bitcoin  [2019] EWHC 3556 (Comm), an insurance company that was the victim of a ransomware attack and was forced to pay the ransom in Bitcoin applied for a ransom injunction. The English court granted the injunction, recognising Bitcoin, for the purposes of the injunction, as property that can be protected by law. While cryptoassets do not meet traditional definitions of ‘things in possession’ or ‘things in action’, their recognition as a potentially new form of property signals broader legal and conceptual acceptance. AA v Persons Unknown  set a precedent in UK law for treating crypto-currencies as property, opening the way for legal protection and enforceability of crypto-currencies in disputes over theft, fraud, and other legal actions. Unsurprisingly, English courts have followed this trend, repeatedly citing AA v Persons Unknown  and orienting the common law towards the needs of the modern digital world—going as far as allowing new claims to be served via NFTs. The fact that the English law on the nature of decentralised networks is rapidly evolving is also demonstrated by the pending Tulip Trading Ltd v van der Laan  [2023] EWCA Civ 83, where one of the main questions in dispute is whether certain networks are sufficiently decentralised that the programmers who created, updated, and ultimately developed them could be deemed to have a duty towards those who had assets on those networks. The answer to this question has significant ramifications, including the creation of a potential fiduciary duty owed by developers to Bitcoin owners.   Rights relating to property under English law   English law recognises two sets of rights in relation to assets: rights in personam , and rights in rem . Rights in personam , or personal rights, are specific rights that exist between particular individuals. For example, if a person enters into a contract with another person, a personal obligation arises to perform that contract. This obligation is a right in personam  for each person that enters into the contract, is enforceable against the other, and generally cannot be enforced against anyone other than the parties involved. In contrast, a right in rem  extends beyond the parties involved. A common example is the ownership of a piece of property. The right in rem  means that if someone trespasses on your property, you can enforce your property rights against them, regardless of whether you have any personal legal relationship with them.   Whether a right is a right in personam  or a right in rem  is critical in determining jurisdiction over that right. Jurisdiction over in personam  rights depends on connecting factors between the claimant and the defendant, the cause of action, venue, and the consent of the defendant. In contrast, jurisdiction over in rem  rights depends on whether the property in question is within the jurisdiction of the court. This distinction highlights the importance of having practical control over an asset—a concept that has become increasingly complex in the cryptoasset space due to its intangible and decentralised nature, as explored in more detail below.   Establishing jurisdiction through connecting factors   Traditional legal systems governing assets are often based on geographical boundaries and physical presence. Private international law usually adopts the principles of lex loci  (the law where the property is located) and the forum situs  (the jurisdiction where the property is located) to regulate the jurisdiction of property and the applicable law. This is simple for real property (eg, land) and generally applies to personal property as well (eg, a motor vehicle).   For intangible assets that have no physical location, a legal fiction is created to tie those assets to a specific location. The approach taken by English private international law generally looks at two elements: effective enforcement and specific access to remedies. For example, for assets that require registration, such as securities, shares, and intellectual property, the court where the relevant register is located has jurisdiction. Likewise, a debt is located at the debtor’s usual place of residence. The pattern emerging from the case law is that courts look to adopt a connecting factor for intangibles that is meaningful and will give validity to a future judgment. For a connecting factor to be meaningful, the court must have some degree of actual control over the intangible asset.   The ubiquitous and virtual nature of the Internet challenges these traditional jurisdictional principles. In EU Internet cases, the European Court of Justice has considered relevant factors such as place of residence, place of business, place of causal events, place of damage, and place of performance of the contract.[1] But practice shows that online communication spaces lead to a lack of useful connecting factors. In some cases, artificial connecting factors (eg, the location of the digital wallet) can be partly sufficient if the virtual location cannot be transposed into the real world; in others, using geographical connecting factors (eg, the location of the owner) can be useless because there is no obvious location to tie a cryptocurrency asset to a specific jurisdiction. This becomes even more apparent for cryptoassets related to distributed ledger technology (‘DLT’) (eg, Ethereum).[2] The current international legal framework, including the UNCITRAL Model Law on Electronic Commerce and the United Nations Convention, does not contain specific jurisdictional provisions for the Internet. Its reference points, such as ‘place of business’ and ‘habitual residence’,[3] do not fully take into account the non-territorial nature of the Internet and intangible assets.   Cryptoassets may be a special type of intangible asset. An artificial situs  (or site) of the property may have to be established because there may be no direct, natural connecting factor. There is already precedent in English law to permit this. In Ion Science Limited v. Persons Unknown ,[4] for example, it was stated that the location of a cryptoasset is ‘the place where the person or company who owns the coin or token is domiciled’. This is a useful starting point; however, it arguably remains an overly territorial approach to the issue of Internet jurisdiction. In this approach, the concept of ownership is tied to aspects of physical ownership and/or exclusive control. If someone claiming to be the rightful owner cannot access a cryptoasset—for example, because they no longer possess the private key, which is a decryption code—how can they prove ownership? If ownership cannot be determined, it may not be possible to determine domicile and jurisdiction. Such top-down judicial solutions may, therefore, not be experimental or iterative enough to keep pace with technological developments. The Law Commission recognised this in its February 2024 ‘Summary on the Call for Evidence’ for the ‘Digital assets and ETDs in private international law: which court, which law?’ law reform project,[5] where it concluded that lex situs  is far easier to apply to tangible objects than to digital objects. Applying the lex situs  rule to decentralised objects, in particular, is one of the most difficult problems raised by DLT. This is because decentralised cryptotokens are an ‘omniterritorial’ phenomenon: the object does not simply exist ‘nowhere’, but ‘nowhere and everywhere, at the same time’. In this way, cryptotokens exemplify the challenges that digitisation and decentralisation pose to the principle of territoriality, which underpins private international law.   Territoriality, de-territorialisation, and re-territorialisation New ways of thinking about jurisdiction over the Internet and digital assets are needed. In 2024, territoriality remains the common denominator of both private and public international law. Some scholars have gone as far as to say that our current legal paradigm operates under the tyrannical spectre of territoriality.[6] Extraterritoriality—that is, the application of a given jurisdiction’s laws outside of its own jurisdiction—as a possible response can be expected ultimately to face the same limitations. States asserting extraterritorial jurisdiction typically refer to a territorial reference point, usually one which is based on effects or impact within their own territory.[7] Extraterritoriality is, therefore, not a meaningful solution but a palliative reformulation. But what would a solution look like? The solution may lie in rethinking the concept of space and its relationship to norm-making or rule-making. Traditionally, connecting factors in private international law tie back to a physical, centralising factor. This factor can be either rather obvious (such as the place where the damage or injury occurred) or artificial (such as the place of the register in which the relevant entitlements are maintained). Therefore, when it comes to digital assets, the temptation might be to rely on the physical infrastructure of the Internet (the place of the cables, servers, and data centres) in order to solve the connecting factor issue. However, identifying these material pillars does not necessarily provide a reliable starting point for responsibility. This is because practical control over the physical infrastructure within the territory does not necessarily result in access to data.[8] For example, the debates over where data is stored[9] (such as on a server in a data centre) and where it can be accessed (such as on a laptop) are governance issues more than they are clear-cut geographical issues. The fact that a server is located within the territory of the United States does not automatically mean that the US government has access to data on that server.[10] If the government does not have access to the data underpinning the digital asset, then enforcement becomes uncertain. Additionally, in the DLT context, nodes supporting the crypto network can be located anywhere in the world—begging the question of whether jurisdiction would then be determined by where the majority of nodes are located, by using geofencing such as identification on the basis of IP address or GPS, or by treating the DLT network as a legal entity and resorting to its place of incorporation as a connecting factor?   The emergence of new asset classes—such as cryptocurrencies, protocol tokens, utility tokens, security tokens, natural asset tokens, crypto collectibles, crypto-fiat currencies, and stablecoins—has exacerbated this unresolved problem. DLT is not territorial; rather, it is peer-to-peer and decentralised. Furthermore, DLT introduces novel concepts such as multisignature and divided control.[11] Multisignature refers to a security mechanism whereby multiple signatures (or private keys) are required to authorize a transaction. For example, if three people have the keys to a multisignature address, and two-thirds of the people are required to agree for a given thing to happen, it is not clear who has custody of the funds.[12] What happens if the key-holders are living in different countries? Assigning a general rule to create a connecting factor may seem sufficient to provide a starting point for case law, but it may not be suitable for enforcement purposes. For example, you may get a connecting factor that allows you to commence proceedings in England, but if one of the key holders lives in Somalia and Somalian law does not recognise the basis on which the English courts agreed to take jurisdiction, the Somalian courts may not permit enforcement of the English judgment—particularly where one or more of those countries may not recognise the jurisdiction of the courts in another of those countries.   Further difficulties are faced given the pseudo-anonymous nature of blockchain. Indeed, without a clear understanding of who the parties are, it becomes difficult to enforce contracts or legal obligations across jurisdictions. Cross-border enforcement mechanisms, such as Mutual Legal Assistance Treaties, often fail to keep up with the rapid pace of DLT transactions. Moreover, decentralised systems, intentionally designed as they are to operate without central intermediaries, lack the means to enforce such decisions.   The best solution for determining jurisdiction over cryptoassets likely lies in developing a unified international legal framework that addresses their unique characteristics as digital assets. Given the global and decentralised nature of cryptoassets, the framework should be based on principles that transcend traditional geographical boundaries and that recognise the digital and often borderless realm in which these assets exist. International cooperation and consensus-building among different jurisdictions are needed to establish common standards and definitions for cryptoassets. This approach could include criteria such as the residence of the asset holder, the location of important nodes in the blockchain network, and/or the principal place(s) of business of the parties involved. Additionally, integrating technological tools such as blockchain analytics into legal proceedings can provide empirical data to support judicial decisions. Such a unified framework would not only ensure clarity and consistency in legal procedures related to cryptoassets but would also create a stable and predictable environment for their use and trading, thereby improving legal compliance for all participants in the digital asset ecosystem. Given the geo-political issues at play, and the varied stances taken by each jurisdiction, such an internationally harmonised approach is unlikely.   Challenges in enforcement against cryptoassets   Jurisdictional issues are inextricably linked to issues that arise in real-world cases. In the UK, judgment creditors have a number of options for enforcing a judgment. These options are each tailored to particular circumstances and are governed by different sections of the Civil Procedure Rules (CPR), the rules that govern the procedural aspects of civil court proceedings in England and Wales.   One method is for the court to appoint a receiver, a person responsible for recovering assets for creditors if the debtor does not pay.[13] Another method involves a third-party debt order, whereby the creditor forces a third party that holds assets for, or is indebted to, the debtor to pay the creditor directly.[14] In addition, charging orders can be obtained against the debtor’s interest in the property, securities, or company assets.[15] A party may also request an ‘attachment of earnings’ order directing the debtor’s employer to periodically withhold amounts from his or her income and forward those amounts to the court for payment to creditors.[16] These diverse mechanisms provide judgment creditors with flexible and effective tools to pursue their claims and ensure that they are satisfied.   In addition to the various enforcement methods available to judgment creditors, the English legal system also provides effective interim relief including in the form of injunctions. Examples include freezing orders, worldwide freezing orders, disclosure orders, and other forms of interim injunction. These injunctions are effective tools to facilitate enforcement. For example, a freezing order can prevent a party from dissipating its assets until a legal dispute is resolved, or judgment enforced, such as by freezing a defendant’s assets other than those the defendant reasonably needs to carry on business. This ensures that assets are not siphoned away to avoid enforcement.   Identification and location of assets   One of the biggest obstacles to enforcing judgments against cryptoassets is the difficulty in identifying and locating such assets. This problem is exacerbated because the decentralised ledger technology underlying cryptocurrencies means that assets are not held in a single location, but rather are distributed across a global network and, in many cases, cannot be traced back to a server, file, or device. Additionally, as stated above, blockchain transactions often allow users to remain anonymous or use pseudonyms, making it difficult to identify the actual person behind the transaction. To complicate matters further still, cryptoassets can be controlled by multiple individuals or entities, resulting in complex ownership structures that obscure the identities of legitimate defendants even more. In fact, much of the existing case law regarding cryptoassets involves court orders against ‘Persons Unknown’, highlighting the limitations of traditional legal tools in identifying responsible parties and holding them accountable.   Cryptocurrency exchanges are at the heart of managing global crypto assets. A large portion of cryptocurrency investors use wallets hosted on these exchanges. As a custodian, the exchange assists investigators and analysts by providing critical information. Asset trackers can request due diligence documents from exchanges and other cryptocurrency institutions, either voluntarily or through court-ordered disclosure. If tracing efforts lead to the identification of a public key address maintained by a third party, such as a cryptocurrency exchange, the injured party can take legal action. This is usually done by applying for a Bankers Trust Order (BTO)[17] or a Norwich Pharmacal Order (NPO) (so named after the claimants in the respective cases in which the orders were first made).[18] The purpose of these orders is to compel third parties to disclose information that can assist the investigation of claims and enforcement of laws.   Cryptocurrency exchanges often hold critical ‘Know Your Customer’ information and other relevant data about their customers. A BTO or NPO can help to determine ownership of wallets containing disputed digital assets. For example, the court in Fetch.ai Ltd and another v Persons Unknown and others  [2021] EWHC 2254 (Comm) (15 July 2021) granted a BTO and an NPO against the relevant entities to assist the claimants in tracing the assets. This is particularly helpful where a crypto exchange is found to hold assets on constructive trust for the benefit of the wronged party, making crypto exchanges a route to recovery ( see   Jones v Persons Unknown  [2022] EWHC 2543 (Comm)) .   Cross-border enforcement   A number of international agreements and conventions have been concluded in an attempt to address cross-border enforcement. These include, for example, the New York Convention on arbitral awards, the Hague Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments on court judgments, and the EU Brussels regime. Yet, despite these attempts to address cross-border enforcement, enforcing a judgment (or arbitral award) in another country can pose significant legal challenges due to differences in national legal systems.   Different national legal systems can have different procedural requirements and standards of fairness, which can engender potential conflict with the domestic law of the country in which enforcement is sought. In Payward Inc et al. v Chechetkin  [2023] EWHC 1780 (Comm), a UK court refused to recognise and enforce an arbitral award in favour of a California-based cryptocurrency exchange and trading platform because it was inconsistent with consumer rights protection under UK law and the UK Financial Services and Markets Act 2000—something that would likely not have been a hurdle had enforcement been sought in California.   Whether cryptoassets are treated as property is a matter of international debate, and how they are treated is influenced by each jurisdiction’s legal principles, technical understandings, and public policy considerations. In those jurisdictions where the courts have proceeded on the presumption that cryptoassets are property—such as England and Wales, Singapore, and Hong Kong—enforcement may be relatively straightforward. This is not, however, true for all jurisdictions.   Further, countries such as Tunisia or Nepal, for their parts, have implemented blanket bans on crypto assets.[19] These inconsistencies mean that a claimant who needs to enforce a judgment in a country that refuses to recognise cryptoassets as property, or which makes the transfer, dealing, or owning of such assets illegal, may find itself in choppy waters.   Enforcement using the blockchain — the cure is in the illness   Blockchain technology is a double-edged sword: while it challenges traditional judgment enforcement methods, it also provides solutions that promote innovation and efficiency in legal development. Its complexity highlights the growing need for innovative legal solutions, technological advancements, and global collaboration in order to effectively manage and enforce legal judgments in this digital age.   Asset tracing on the blockchain   Blockchain records are publicly accessible and cannot be deleted. Such transparency allows asset ownership to be tracked from the beginning. Still, some people who want to hide their activities use services like cryptocurrency tumblers or mixers, which mix ‘tainted’ funds with other funds, making the tracing process difficult. This is where the expertise of professional cryptocurrency recovery analysts is crucial. Specialist tracing companies use advanced tools and methods to unravel complex transactions and find their origins.   Unsurprisingly, blockchain analysis tools have become essential tools for lawyers and law enforcement. These sophisticated tools use the immutable nature of the blockchain to analyse transaction patterns, identify wallet addresses, and track asset flows, providing key benefits for tracking and recovering crypto assets. Despite the sophisticated nature of tracing tools, however, blockchain analysis still faces obstacles when dealing with privacy coins like Monero or Zcash, which are specifically designed to enhance privacy and obscure transaction details. Tracing transactions on these networks requires more sophisticated technology and expertise. As new methods and technologies are developed to improve the privacy and security of crypto transactions, blockchain analytics tools must (and will) evolve accordingly to keep pace. The use of blockchain analytics also raises important questions about privacy, data protection, and regulatory limits in digital finance. Some of the features of blockchain technology, such as encryption and data integrity checks, smoothly align with data protection principles. However, issues such as perpetual data storage, a lack of centralised control, and the inability to restrict cross-border transfers still have to be reconciled.   Enforcing judgments through smart contracts   A smart contract is a self-executing contract that automatically executes once preconditions written in code are met. This technique is particularly effective at executing judgments. For example, smart contracts can ensure that judgment conditions are automatically met. If a court orders a payment settlement, a smart contract can automatically transfer funds from the debtor’s cryptocurrency wallet to the creditor on issuance of the judgment. In cases where assets are frozen, smart contracts can also be used to lock funds or assets, only to be released once certain conditions are met (such as the issuance of a final judgment). This mechanism would permit the automatic release of assets to their rightful owners, streamlining the execution process. Smart contracts are also able to facilitate cross-border enforcement of judgments. Since blockchain operates globally, smart contracts can conduct transactions without being restricted by geographical boundaries, simplifying the process of international enforcement. While these applications hold great promise, they require strong legal frameworks and technical infrastructure to ensure smart contracts are enforceable and comply with legal standards. Moreover, incorporating smart contracts into the legal system requires foresight and collaboration between lawyers, technology experts, and policymakers to address challenges related to coding, contract interpretation, and dispute resolution. Further, unless obligated by law, they also require the consent of all parties to a cryptoasset transaction. All other things being equal, English law appears to be one of the most attractive governing laws for smart contracts, as it is sufficiently flexible to address both legal and business concerns (see the November 2021 Law Commission advice to the UK Government on the legal status of smart contracts, which highlights that principles of contract law in England allow for the recognition and enforcement of smart contracts, and that courts in England have demonstrated a willingness to adapt and engage with new technologies).   Need for international cooperation in enforcement It is clear that what is needed is international cooperation, which, when done properly, is very effective. The Silk Road case is a good example. In that case, the notorious online black market Silk Road used Bitcoin to conduct transactions, attracting the attention of law enforcement agencies around the world. The investigation, conducted by the FBI in partnership with multiple international agencies, resulted in the arrest of Ross Ulbricht, the inventor of Silk Road, and the seizure of approximately 170,000 Bitcoins.   To achieve this result, there was extensive international cooperation, with authorities sharing information, resources, and expertise. The agencies involved had to navigate a web of legal systems, each with a unique approach to cryptoassets.[20] This collaboration dismantled a major criminal syndicate, set a precedent for future cases, and highlighted the importance of developing an international legal framework and cooperative mechanisms to effectively track, freeze and enforce judgments against cryptoassets.   Conclusion   The legal environment surrounding cryptoassets must not only address their current state, but also anticipate future developments. A proactive approach to updating existing laws and regulations will be required—one that reflects the nuances and complexities of cryptoassets. This includes clarity on the legal status of different types of digital tokens (such as utility tokens or security tokens) and the recognition of smart contracts in legal proceedings. In addition to updating existing laws, there is a need to develop new legal tools and methods that specifically address the unique challenges posed by the decentralised and digital nature of cryptoassets, such as issues related to cross-border transactions, asset tracking, and judgment enforcement. Helpfully, English common law provides a useful, flexible tool for addressing many of these issues, and English courts have proven to take innovative approaches where necessary to address the nuances of the new cryptoasset world.   Another flexible tool is international arbitration. International, consensual, and private by nature, international arbitration provides a framework conducive to resolving cryptoasset-related disputes. This is particularly as it is supported by the New York Convention, a successful international agreement assisting enforcement across the world. An agreement to arbitrate, however, is just that: a consensual agreement. Unless built into the network so that all users must pre-agree to arbitrate any disputes, many cryptoasset-related claims—particularly those to do with fraud—are unlikely to be subject to a mutually negotiated contract. Addressing the challenges posed by cryptoassets will require a concerted effort that transcends traditional legal boundaries. An interdisciplinary approach that brings together legal practitioners, technical experts, and policymakers is crucial. This collaboration could provide a more comprehensive understanding of the technical underpinnings of cryptoassets and their implications in the legal realm. Effective enforcement of legal judgments against cryptoassets requires a deep understanding of blockchain technology and its applications. Lawyers armed with these technical insights are better able to develop effective strategies for tracking assets, understanding smart contract disputes, and resolving issues related to digital identity and privacy. The global nature of cryptoassets also highlights the importance of international dialogue and policy development. Forums and conferences that bring together stakeholders from different areas of the law can facilitate the exchange of ideas, best practices, and regulatory experience. This kind of international engagement will go a long way toward ensuring a consistent and unified legal approach to cryptoassets. Ioana Bratu, Aleksandra Dziki, and Michael Davar   Ioana Bratu is currently a doctoral researcher with joint supervision from the University of Exeter and the Open University. Her research focus is on jurisdictional issues related to digital platforms and the Internet.   Michael Davar is a Partner at the global law firm Squire Patton Boggs. He specialises in litigation and international arbitration. The Legal 500 2024 highlighted Michael as ‘excellent in his field’, a practitioner who is ‘known for his meticulous attention to detail’, and one who ‘embodies the team’s commitment to excellence’. Michael is named as a ‘Next General Partner’ and is listed as a key lawyer for international arbitration, commercial litigation: mid-market, and commodity disputes.   Aleksandra Dziki is an Associate in the International Dispute Resolution team at Squire Patton Boggs. She specialises in international commercial arbitration, investment treaty arbitration, and shipping disputes. Cryptocurrency-related legal issues are a key focus of her academic writing as cryptocurrency is her retirement plan. [1] Tobias Lutzi, ‘Internet Cases in EU Private International Law – Developing a Coherent Approach’ (2017) 66 ICLQ 690. [2] Examples of non-DLT-related cryptoassets are those backed by a bank or central body, such as China’s Digital Yuan, which operates on a central ledger controlled by the central bank. [3] Faye Fangfei Wang, Internet Jurisdiction and Choice of Law: Legal Practices in the EU, US and China  (CUP 2010) 19. [4]  Ion Science Limited v Persons Unknown  (unreported, 21 December 2020). [5] The Law Commission, ‘Digital assets and ETDs in private international law: which court, which law? Summary of the Call for Evidence’ (February 2024) 16-17 < https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/30/2024/02/Digital-Assets-and-ETDs-in-Private-International-Law-SUMMARY.pdf > accessed 1 July 2024. [6] Dan Jerker B Svantesson, Solving the Internet Jurisdiction Puzzle  (OUP 2017) 13. [7] Julia Hörnle , Internet Jurisdiction Law and Practice  (OUP 2021) 5; Cedric Ryngaert, Jurisdiction in International Law  (OUP 2015) 6-7.  [8] Jason Healey, ‘The spectrum of National Responsibility for Cyberattacks’ (2001) 18(1) The Brown Journal of World Affairs 63. [9] See  United States v Microsoft Corp ., 584 U.S. (2018). [10] Amanda Holpuch, ‘Tim Cook says Apple’s refusal to unlock iPhone for FBI is a ‘civil liberties’ issue’ The Guardian  (London, 22 February 2016) < https://www.theguardian.com/technology/2016/feb/22/tim-cook-apple-refusal-unlock-iphone-fbi-civil-liberties > accessed 10 September 2024. [11] Don Tapscott and Alex Tapscott, Blockchain Revolution  (Penguin 2018) 291. Multi-signature arrangements are also referred to as M-of-N arrangements, with M being the required number of signatures or keys to authenticate an operation and N being the total number of signatures or keys involved in the arrangement. [12] Interview with Jerry Brito, 29 June 2015, cited in ibid 32. [13] Civil Procedure Rules [SI 1998/3132 (L. 17)], Part 69. [14] ibid, Part 72. [15] ibid, Part 73. [16] ibid, Part 89. [17] Norwich Pharmacal Co. v. Customs and Excise Commissioners  [1974] A.C. 133. [18] Bankers Trust Co v. Shapira [1980] 1 WLR 1275. [19] See ‘Cryptocurrency Regulation Tracker’ ( Atlantic Council ) < https://www.atlanticcouncil.org/programs/geoeconomics-center/cryptoregulationtracker/ > accessed 1 January 2024. [20] See Marie-Helen Maras, ‘Inside Darknet: the takedown of Silk Road’ (2014) 98 Criminal Justice Matters 22-23.