Like many other Rwandans, I heard for the first time of the United Kingdom (UK)’s plan to send its unsolicited asylum seekers to Rwanda to claim asylum there on the news. It was when the then UK Secretary of State for Home Department, The Rt Hon Priti Patel, and the Rwandan Minister of Foreign Affairs and International Co-operation, Dr Vincent Biruta, were shown shaking hands on media across the word, after signing what the two countries called an ‘Immigration and Economic development partnership’ in Kigali, in April 2022. The topic had never been debated in the Rwandan parliament and neither had it been canvassed in the local media prior to the announcement and signing of the partnership. Priti Patel, representing the British government, said that the UK had signed a world-leading Migration Partnership with Rwanda which can see those arriving dangerously, illegally, or unnecessarily into the UK relocated to Rwanda to have their claims for asylum considered and, if recognised as refugees, to build their lives there. She added that this will help break the people smugglers’ business model and prevent loss of life, while ensuring protection for the genuinely vulnerable. Dr Vincent Biruta, representing the Rwandan government, said that there is a global responsibility to prioritise the safety and well-being of migrants, and Rwanda welcomes this partnership with the United Kingdom to host asylum seekers and migrants and offer them legal pathways to residence. He also stated that the partnership is about ensuring that people are protected, respected, and empowered to further their own ambitions and settle permanently in Rwanda if they choose.[1] The Rwandan government’s official press release, issued straight after the signing of both countries scheme of asylum transfer to Rwanda, reads that the partnership reflects Rwanda’s commitment to protect vulnerable people around the world.[2] The press release highlights that by relocating migrants to Rwanda, the dignity and rights of those migrants will be respected. It claims that migrants will be provided with a range of opportunities, including for personal development and employment, in a country that has consistently been ranked among the safest in the world. A considerable number of Rwandans have experienced what it means to be displaced, and even formerly or currently been refugees themselves, due to historical conflicts and/or political oppression as well as economic struggles in Rwanda. Rwandans, irrespective of their political stance—either against or for the ruling party in Rwanda—would understand the struggle that comes with being an asylum seeker and what it means to receive help from host countries to rebuild lives. Therefore, most Rwandans are sensitive to the plight of those forced to leave their home countries and would be more than willing to make them feel welcome. However, this does not change the fact that the arrangement to deport asylum seekers from the UK to Rwanda is unlawful and that Rwanda does not qualify as a safe third country to send asylum seekers to. Rwanda’s Legitimate Actions to Solve Global Immigration Issues As a signatory to the 1951 United Nations Convention Relating to the Status of Refugees (ratified on 26 January 1982) and the 1967 Protocol (ratified on 26 January 1982) as well as the 1969 Organization of Africa Unity (OAU) Convention Concerning Refugees (ratified on 26 January 1980), Rwanda already delivers upright and permissible actions to ensure the overall general protection, security, and safety of the persons of concern. These actions are executed in collaboration with the United Nations (UN), the African Union (AU), and developed countries that provide technical and financial support. It is through the delivery of these actions that Rwanda lawfully contributes towards solving global immigration issues. For instance, Rwanda has been hosting refugees from neighbouring countries. Today, the country is home to 134,519 refugees and asylum seekers mainly from the Democratic Republic of the Congo (DRC) and Burundi.[3] The majority of these refugees have been settled in six refugee camps located throughout different parts of Rwanda as well as accommodation in urban areas of the country.[4] Rwanda’s Ministry in Charge of Emergency Management (MINEMA), in collaboration with the United Nations High Commissioner for Refugees (UNHCR), is responsible for the smooth delivery of multi-sector assistance to refugees residing in refugee camps and reception centres, as well as to refugees and asylum seekers living in urban areas. Rwanda is also a temporary host for refugees being evacuated from Libya. There has been a desperate situation unfolding in the country involving thousands of migrants and refugees languishing in detention centres or enduring homelessness, exploitation, and abuse while trapped in an endless cycle of violence.[5] In response, the Government of Rwanda, UNHCR, and the AU signed a Memorandum of Understanding (MoU) in September 2019 to set up a transit mechanism for evacuating refugees out of Libya.[6] Under this MoU, the Government of Rwanda agreed to receive and provide protection to 500 refugees and asylum-seekers who were being held in detention centres in Libya and willingly choose to be transferred to safety in Rwanda. The aim of this action is to temporarily host refugees and asylum seekers who have undertaken voluntary evacuation from Libya with a view that some evacuees would benefit from resettlement to third countries, while others would be helped to return to countries where asylum had previously been granted, or to return to their home countries if it was safe to do so.[7] Some would be given permission to remain in Rwanda subject to agreement by the competent authorities. Two Emergency Transit Mechanism (ETMs) were established in Rwanda to support the agreed number of refugees and asylum seekers evacuated from Libya at any given time and to conduct case processing for resettlement and other durable solutions. While in the ETM, the asylum seekers go through refugee case processing undertaken by UNHCR to determine if they are a refugee.[8] In October 2021, the first Addendum to the tripartite MoU of September 2019 was signed by the parties, agreeing to renew and extend the MoU until December 2023 and to increase the total number of individuals to be hosted in the centre to 700 people at any given time.[9] According to UNHCR, between September 2019 and March 2023, 1600 refugees and asylum seekers were evacuated from Libya to the ETM in Rwanda by way of 13 evacuation flights.[10] The refugees and asylum seekers consist of mainly Eritrean, Somali, Sudanese, Ethiopian, South Sudanese, Cameroonian, Nigerian, and Chadian nationalities. To date, all refugees have opted not to stay in Rwanda but for resettlement to third countries. Over 900 refugees have subsequently been resettled to third countries. Currently, the ETM is hosting 698 refugees and asylum seekers.[11] The European Union has been the main funding partner to UNHCR for the operation of the ETM in Rwanda—between 2019 and 2022, the EU donated €12 million to the project.[12] The EU granted to the UNHCR an additional €22 million in February 2023 to support its operation of the ETM in Rwanda until 2016.[13] Prior to signing an arrangement for evacuation of refugees from Libya to Rwanda with the country’s government, the UNHCR had been involved in similar schemes with other countries. In May 2008, a tri-partite agreement establishing the Emergency Transit Centre (ETC) in Romania was signed by the Government of Romania, the International Organisation for Migration (IOM) and UNHCR.[14] In November 2017, UNHCR had established for the first time an ETM for the evacuation of vulnerable refugees and asylum seekers from detention in Libya to Niger and signed a MOU with the Government of Niger in December 2017 to temporarily expanding the Niger asylum space to these refugees and asylum seekers.[15] The UNHCR schemes with Romania, Niger and Rwanda that evacuate refugees from Libya are certainly reasonable because they protect migrants from torture, sexual violence, and indefinite detention. However, this is not the case with the Rwanda asylum plan between the UK and Rwanda. Rwanda also deploys troops in peacekeeping missions across the world. By doing so, Rwanda contributes towards addressing threats to international peace and security, an action that is connected to rightly solving global immigration issues. In that context, Rwanda has deployed its military and police personnel on UN peacekeeping missions in Darfur (completed in 2020), the Republic of South Sudan, the Central African Republic, and the Interim Security force for Abyei. Rwanda is today ranked the fourth-most country contributing personnel to UN peacekeeping operations.[16] Rwanda has also entered into bilateral agreements with individual states which have led to additional deployments of its defence forces and police personnel into those countries to ensure security and peace. This was the case during the deployment of Rwanda defence forces and national police to Cabo Delgado, a province of Mozambique affected by terrorism and insecurity. The Rwandan force protection troops were also deployed to the Central African Republic to counter the targeting of the UN peacekeeping forces by rebels. I commend the Rwandan government for the aforementioned actions, as they demonstrate that in spite of Rwanda being categorised as a poor and least developed state, it is certainly making a major contribution towards solving global immigration issues. Of course, more can be done to fulfil Rwanda’s commitment to protecting vulnerable people around the world. However, this is not to be rightfully done currently because the scheme to transfer asylum seekers from the UK to Rwanda is not lawful. Rwanda Policy is Unlawful Just a few months after the MOU between the UK and Rwanda was signed by both countries’ officials, UNCHR, pursuant to its responsibility under the United Nations General Assembly to ensure the promotion and supervision of compliance with international refugee law, published a note that summarizes its views on the legality and appropriateness of partnership on the asylum transfer between the governments of the UK and Rwanda.[17] The UN agency made the note with reference to international refugee law norms and principles, as articulated notably in the 2013 UNHCR Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers and UNHCR’s 2021 Note on the ‘Externalization’ of International Protection. In its note, the UNHCR explained that although States may make arrangements with other States to ensure international protection, these arrangements must—as the preamble of 1951 Convection provides—advance international cooperation to uphold refugee protection, enhance responsibility sharing and be consistent with fundamental rights and freedoms of asylum seekers and refugees. International law requires States to fulfil their treaty obligations in good faith. However, the UK and Rwanda arrangement does not advance international cooperation that would uphold any protection to refugees who would be transferred under the scheme. The MoU on the arrangement[18] clearly states that it will not be binding in international law[19] and does not create or confer any right on any individual, nor shall compliance with it be justiciable in any court of law by third-parties or individuals.[20] It also stipulates that in case of disputes[21] the participants will make all reasonable efforts to resolve between them all disputes concerning the arrangement. Neither participant will have recourse to a dispute resolution body outside of this. The absence of regularising the MoU raises questions on the protection of asylum that will be transferred under the partnership if, for unforeseeable reasons, the partnership suddenly ends. Moreover, the arrangement between the two states does not contribute to burden-sharing and responsibility-sharing and puts the asylum seekers transferred from UK to Rwanda at risk of refoulement. The UNCHR’s assessment of the Rwandan asylum system is that the system is still nascent, while the UK asylum system is highly developed and has the capacity to consider asylum claims. This renders the arrangement as not promoting responsibility-sharing between the two states but simply shifting the burden from the UK to Rwanda, which is not in line with the 1951 convention. The UNHCR had submitted shortcomings in the Rwandan asylum system to the Universal Periodic Review in July 2020.[22] Among these flaws include the inefficiency and untimely manner of asylum procedures, lack of objective assessment of the fairness and efficiency of the asylum procedures, lack of representation by a lawyer for asylum seekers, arbitrary denial of access to asylum by Rwanda’s Directorate General for Immigration and Emigration, discrimination in access to the asylum procedures for groups such as LGBTQ+ persons and so on. These shortcomings have resulted in those wishing to claim asylum in Rwanda being left undocumented, at risk of detention and deportation and produced incidents of chain refoulement. The flaws in the Rwandan national asylum system represent a challenge to the legality of the UK-Rwanda transfer; for any arrangement to transfer asylum to be deemed legal, it must ensure that access to fair and efficient procedures for the determination of refugee status is guaranteed. The UNHCR explains that the legality of transfer arrangements also requires those transferred to be treated in accordance with accepted international standards. These requirements reflect the rights granted to refugees under the 1951 Refugee Convention. Concerns over whether refugees transferred to Rwanda will be treated in accordance with respected international standards are considerable. Rwanda has constituently been categorised as ‘not a free country’ by Freedom House and has a history of and continues to disregard international obligations, including human rights such as those set out in the Convention Against Torture, amongst others. This situation is well-known to the UK government. In January 2021 during the 37th Session of the Universal Periodic Review, while sharing recommendations to improve human rights in Rwanda, the UK Foreign Commonwealth and Development Office expressed its concerns regarding continued restrictions on civil and political rights and media freedom, and urged Rwanda, as a member of the Commonwealth and future Chair-in-Office, to model Commonwealth values of democracy, rule of law, and respect for human rights.[23] The UK tabled recommendations for Rwanda to improve its human rights. However, Rwanda did not support these recommendations. This prompted the UK to issue yet another statement expressing its regrets that Rwanda did not support its recommendations, which was also made by other states, to conduct transparent, credible and independent investigations into allegations of human rights violations including deaths in custody and torture.[24] The UK expressed its disappointment that Rwanda did not support its recommendation to screen, identify and provide support to trafficking victims, including those held in government transit centres in Rwanda. Human rights violations and torture affects anyone in Rwanda who dares to challenge the government’s narrative, including refugees hosted in the country. In 2018, twelve Congolese refugees were shot and killed by Rwandan police as they tried to march out of their camp in protest of a cut in food rations.[25] 65 Congolese refugees were also arrested.[26] Those arrested were accused of causing uprising or unrest among the population, of spreading false information or harmful propaganda with the intent to cause a hostile international opinion against Rwandan Government, and of holding illegal demonstration or public meeting. Only one person was acquitted, whilst the rest were sentenced to three to six years of imprisonment. Lastly, international law requires that transfer arrangements must ensure that when a person being transferred is recognised as being in need of international protection, that person is able to access a durable solution. Yet evidence shows that Rwanda remains a poor and less developed country with limited resources. Rwanda produces its own refugees due to ongoing repression and the lack of economic opportunities. One example of Rwanda’s insufficiency as a third country to transfer asylum is the previous bilateral arrangement between Rwanda and Israel. Unlike UK-Rwanda asylum transfer deal that was publicly announced, the transfer arrangement between Israel and Rwanda was of a secretive nature. Some 4000 Eritrean and Sudanese asylum seekers based in Israel were sent to Rwanda and Uganda between 2013 and 2018. For those asylum seekers sent to Rwanda, testimonies collected by the International Refugee Rights Initiative suggest that the majority, if not all, were being smuggled out of the country by land to Kampala within days of arriving in Kigali.[27] They were not given an opportunity to apply for asylum, and even if they wished to stay in Rwanda, their refugee claims could not be assessed as the national refugee status determination committee has yet to be established. The UNHCR note concluded that the UK-Rwanda arrangement fails to meet the required standards relating to the legality and appropriateness of bilateral or multilateral transfers of asylum-seekers, making it incompatible with the letter and spirit of the 1951 Convention. Furthermore, the note adds that the arrangement cannot be brought into line with international legal obligations through minor adjustments. Although the UK High Court ruled that the arrangement itself is lawful, it added concern that the asylum seekers being transferred to Rwanda were not allowed to argue about the safety of Rwanda. Hence the case was appealed. The Court of Appeal concluded that the deal was unlawful because Rwanda was not a safe third country to send asylum to. The Court noted that Rwanda’s system for making asylum decisions was inadequate.[28] The system has serious deficiencies, and at the date of the hearing in the High Court, those deficiencies had not been corrected and were not likely to be in the short term. The Court of Appeal also stated that asylum seekers transferred to Rwanda would be at risk of refoulment, making Rwanda not a safe third country.[29] The Court established substantial grounds for believing that there is a real risk that the asylum claims may be wrongly refused by Rwanda’s national system. Moreover, it revealed that asylum seekers sent to Rwanda faced a real risk of mistreatment.[30] The Court of Appeal also disagreed with the argument by the UK Secretary of State for the Home Office that the past and the present should either be ignored or sidelined in this case.[31] The Israel-Rwanda agreement is illustrative of the danger and suffering that is likely to arise from the UK’s externalisation plan,[32] and the shooting of Congolese refugees in Rwanda in 2018 has also been considered. The Court was not convinced by the UK Secretary of State for the Home Office’s uncritical acceptance of assurances from Rwanda, or that these assurances are enough to wipe away all real risk of violations while the structural institutions that gave rise to past violations remain in Rwanda today.[33] It is indeed a fact that institutions in Rwanda demonstrate use of violence against citizens and this makes Rwanda not a free country. Anyone who dares to challenge the government’s policies and narratives is persecuted and labelled an enemy of the state intending to destabilise Rwanda. I know this because I, amongst so many others, have experienced it first-hand. Rwanda is Not a Free Country In 1999, several years after the end of a civil war that culminated in the genocide against the Tutsis and crimes against humanity in Rwanda, the Rwandan Patriotic Front (RPF)—the country’s new rulers—held a national dialogue referred to as ‘Urugwiro Village’ meetings to discuss how Rwanda could solve its issues with democracy, amongst other issues. The outcome of these consultations was an agreement that going forward the East African nation should adopt a ‘consensual democracy’. This ‘consensual democracy’ was deemed the best option to supposedly guide the philosophies of governance in Rwanda based on its population, culture, and history in order to accelerate development and to prevent further ethnic violence in the country. However, the ruling party has over time transformed Rwanda’s consensual democracy into a political system that suppresses political dissent, restricts pluralism, and curbs civil liberty in Rwanda. This situation has led Freedom House to consecutively categorise Rwanda as not a free country.[34] Rwanda’s score on the Democracy Index has decreased and remained below global and African countries averages between 2006 and 2022.[35] The Index has consecutively[AMH1] categorised the Rwanda regime as authoritarian. Indeed, a closer look reveals that lack of effective electoral process, pluralism and political participation are the main reasons that Rwanda has been assigned a stunted score. There has been a pattern of restricting political participation in Rwanda, particularly during the periods preceding each Rwandan presidential election, since the RPF took power. The victims have always been members of opposition who do not toe the line of the government’s narrative and who have announced that they would run against the ruling party’s only candidate, President Paul Kagame, in those presidential elections. Amnesty International reported that during and after the first post-genocide presidential election in Rwanda that took place in August 2003, opposition candidates and supporters faced harassment and intimidation.[36] In fact, former Prime Minister Faustin Twagiramungu, who was one of the main presidential candidates against President Paul Kagame, was denied registration of his newly formed party the Alliance for Democracy, Equity and Progress.[37] He was also forced to interrupt his campaign before the presidential election after death threats were made against his aides. The report of the European Parliament Delegation’s observation of the 2003 presidential elections stated that the best-placed opposition figure was eliminated from electoral contest by the invalidation of his candidature before the start of the elections campaign.[38] The report added that this opposition figure was in prison at the time of the report’s publication. Dr Theoneste Niyitegeka, who took care of many people injured in the 1994 genocide, tried to put forward his candidacy but was rejected.[39] Afterwards, he was charged with the crime of genocide and sentenced to 15 years in prison in 2008. International and domestic human rights organizations have claimed the charges against Niyitegeka were politically motivated.[40] Rwanda’s record of human rights abuses were amongst the reasons that the Commonwealth Human Rights Initiative (CHRI) recommended that the 21st Commonwealth Head of Government Meeting, held in Port of Spain, Trinidad and Tobago, in November 2009, should not make a decision about Rwanda’s Commonwealth membership application.[41] In the end, however, the decision was taken to include Rwanda as part of the Commonwealth. I had truly hoped that our government would apply Commonwealth values in its governance, but this did not happen. Persecution of opponents who were in the best position to compete with President Paul Kagame increased once again in the run-up to presidential elections in 2010. Accusations of ‘divisionism’ and ‘genocide ideology’ which were based on vaguely-worded legislation continued to be used to stifle legitimate dissent. Me Bernard Ntaganda was selected by members of the political party he presided over, the Ideal Social Party (PS-Imberakuri), to be their candidate during the 2010 presidential elections in Rwanda.[42] He was arrested on the first day on which presidential candidates could register for the election. In 2011, the High Court in Kigali found Ntaganda guilty of endangering national security, ‘divisionism’—inciting ethnic divisions—and attempting to organize demonstrations without official authorisation. In 2010, I left my husband and our three children and returned to Rwanda from exile in the Netherlands, with the intention of registering my political party and running in Rwanda’s presidential elections later in the same year. On the day of my return to Rwanda, I visited the Kigali Genocide Memorial Centre in Gisozi and gave a speech urging unity and reconciliation. I said that for Rwanda to experience true reconciliation, we need to recognise all crimes committed in Rwanda, including the genocide perpetrated against the Tutsi and the crimes against humanity committed against the Hutu. My opinion was based on United Nations Report S/1994/1405. Three months later, I was arrested and dragged into a politically motivated judiciary process that would include years of solitary confinement, relentless smear campaigns, and a long, painful separation from my family. The then-UK Parliamentary Under Secretary of State for Africa declared that I was arrested on trumped up charges.[43] In 2012, the High Court of Rwanda sentenced me to eight years in prison for ‘conspiring against the government by use of war and terrorism’ and ‘genocide denial’. My speech at the Gisozi Genocide Memorial Centre, where I called for effective reconciliation, was considered evidence of ‘genocide denial’. The European Parliament issued a resolution stating that my trial did not meet international standards and was based on fabricated evidence and confessions from co-accused who had been coerced through torture at military detention to make false confessions against me.[44] The EU strongly condemned the politically motivated nature of my trial. I was never deterred by the biased judgement of the Rwandan court. I appealed the High Court’s decision to the Supreme Court, only for the latter to extend my sentence from eight to 15 years. In 2014, I filed a claim against the Rwandan government to the African Court on Human and Peoples’ Rights (AfCHPR). In 2016, just as the AfCHPR was set to decide on my claim, the government of Rwanda withdrew its declaration enabling individuals to file complaints with the court.[45] Nonetheless, having already reviewed my claim, the AfCHPR concluded in 2017 that the Rwandan government had violated my rights to freedom of expression and adequate defence. The court also ordered the government to reimburse me and my family for the material and moral prejudice I suffered during my prosecution and imprisonment. The government has refused to recognise and has not executed that court order to this day. This situation is an example of where the Rwandan government has failed to honour its international commitment. During the annual conference of African Bar Association held in Nairobi, Kenya in 2018, a resolution on Rwanda was passed urging the Rwandan government to respect orders of the AfCHPR in my case, amongst others.[46] In September 2018, I was released early by presidential pardon after eight years of detention, five of which I spent in solitary confinement. This pardon came with two conditions: I must appear before the primary level prosecutor in my place of residence, must appear at the prosecution office once a month and must seek authorisation from the minister in charge of justice every time I wish to go out of the country. These conditions shall cease to apply at the end of the remaining period of imprisonment, which I was supposed to serve till 2025. Upon my release, I launched the political party Dalfa Umurinzi with a mission to strive for the rule of law and for sustainable development benefiting every Rwandan. Although the constitution provides me with the right to organise a general assembly, I am not permitted to register my political party or to be approved for operation. In 2019, I received an international award from the Association for Human Rights of Spain (APDHE). I could not travel to Spain to collect the prize because I had no right to leave Rwanda without permission from the Minister of Justice. Two requests to do so have received no response from the authorities. I have not seen my family in the Netherlands for more than 10 years. Early this year, I wrote to President Paul Kagame requesting that he withdraw the conditions attached on the early pardon he gave me under humanitarian ground because I would like to travel to the Netherlands and be with my husband who is severely ill. I have yet to receive any response from the President. During the 2023 annual conference of African Bar Association held in South Africa, another resolution was passed reminding the Rwandan government to respect orders of the AfCHPR , including my case. Another presidential candidate, Ms Diane Rwigara, was only 35 years old when she decided to run in the 2017 presidential elections in Rwanda against President Paul Kagame. She was also persecuted, being accused of inciting insurrection and fraudulently obtaining the necessary requirements for her candidacy. She was arrested and detained with her mother for a year. Ms Rwigara and her mother were acquitted of all charges after the presidential election was completed.[47] Persecution in Rwanda is not limited to presidential candidates. Many of my supporters have lost their lives, or disappeared after responding to my call to struggle for the establishment of genuine democracy, respect for human rights and rule of law in our homeland.[48] Today, eight of my supporters are still in prison after acquiring a book and attending an online training session about the philosophy of non-violence.[49] Freedom House has consistently categorised Rwanda as not a free country not only because of the political restrictions, but also the curbing civil liberties. Independent human rights organisations such as Human Rights Watch and Amnesty International have frequently reported that judicial authorities in Rwanda prosecute opposition members, journalists, and commentators on the basis of their speech and opinions. Last year, Human Rights Watch reported that Rwandan authorities have threatened, arrested, or prosecuted people reporting or commenting on current affairs via YouTube. The organisation noted that the judiciary system in Rwanda is lacking the independence to stand up and protect free speech in accordance with international law. Through politically motivated prosecutions, Human Rights Watch has alleged that the judicial authorities in Rwanda perpetuate a culture of intolerance to dissent. Indeed, those kept in detention have said that they are regularly tortured. In June 2022, Human Rights Watch reported that a prominent Rwandan YouTube commentator, Aimable Karasira, accused prison authorities of beating him and other jailed critics.[50] In a statement at a court hearing in Kigali in May 2022, Mr Karasira, held in Nyarugenge prison, also said prison authorities were intercepting and withholding privileged communications from his lawyer. The shooting of 12 Congolese refugees that took place in Rwanda in February 2018, which is used as evidence that asylum seeker transferred from the UK to Rwanda are at risk of ill-treatment, is the result of that same culture of intolerance perpetuated across some institutions in Rwanda. The use of violence to prevent citizens from exercising their rights, and particularly those who dare to challenge the Rwandan government and its narratives, is another example demonstrating Rwanda’s failure to honour its international commitments. This is especially true when looking at its international commitment to respect human rights as a member of the UN Human Rights Council and in ratifying the Convention Against Torture in December 2008. Persistent human rights violations have only reinforced the top-down decision-making approach of the Rwandan regime. Thus, the level of citizen participation remains low and undermines good governance in Rwanda. The Worldwide Governance Indicators database, which independently reports aggregate and individual governance indicators for over 200 countries and territories, has revealed that Rwandan governance largely lacks voice and accountability (the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and a free media). The Ibrahim Index of African Governance (IIAG), an independent tool that measures and monitors governance performance in African countries, also came to a similar conclusion. The most recent IIAG shows that Rwanda governance is mainly affected by low levels of participation, rights, and inclusion in the country. Rwanda’s strategy of placing women in high-level decision-making roles, though commendable, has not spurred participation. This is because, as a 2019 study found, the majority of women in high public responsibility roles are card-carrying members of the ruling party or its coalition partners. This means most women in high official roles owe allegiance to the ruling party, rather than the constituencies that elected them. Hence, they adhere to the ruling party governance methods known for not tolerating criticism and restraining citizen participation.[51] Failure to efficiently involve citizens in the decision-making has prevented the Rwandan government from achieving its development programme and prevented the economic progress made by Rwanda from being inclusive. Rwanda’s Economic Growth Hides Flaws The implementation of a ‘consensual democracy’ as a new political system to direct the governance of Rwanda was not the only outcome of the national consultation held in 1999. The RPF administration also promised to transform Rwanda from a low-income to a middle-income country driven by a knowledge-based economy by 2020. That plan was named the Rwanda Vision 2020 development programme and Rwanda started working towards achieving its targets in 2000. Over the following two decades, the Rwandan government received net official development assistance (ODA) from donor countries and institutions equivalent to 16 billion USD from 2000 to 2018. It has raised roughly 9 billion USD of tax revenue between 2009 and 2019. The government has also borrowed finance from external and domestic markets to the tune of 72.4% of GDP which is equivalent to 7 billion USD as of end 2020. Rwanda has experienced significant growth and has been listed the tenth-fastest growing economy in the world from 2001 to 2010, income per capita increased and so has the human development index of the country.[52] However, this growth has not been inclusive and is marred by inequalities in income, education, and health. Moreover, food insecurity in Rwanda is a challenge. Only 40% of Rwanda households are substantially food secure. Rwanda’s growth has not translated into any considerable poverty reduction, particularly in rural areas. The government has chosen to invest a large segment of public funds into the meetings, incentives, conferences, and exhibitions (MICE) industry, developing the touristic areas of the country, and building impressive infrastructure in the capital, Kigali. These efforts have not translated into increased employment across the country and have provided no benefit to rural communities struggling the most. MICE-related developments suffered a lot due to the pandemic, further limiting the gains made. Now as a result of these and other short-sighted economic strategies, Rwanda stands on debt equivalent to a whopping 73% of its GDP. Despite the praise the Rwandan government has received internationally for advancing the country’s development, Rwanda remains categorised among the poorest and least-developed countries in the world. The government’s promise to transform Rwanda into a middle-income state by 2020 has not been delivered.[53] Rwanda remains a low-income state and is categorised among the poorest and least-developed countries today. The Rwandan government has postponed the target to transforming Rwanda into a middle-income state in 2035. There are no official documents that explains why the government did not achieve the anticipated objectives of Vision 2020, and what needs to be improved so that the government’s future development programmes meet their targets. Instead, the government launched yet another ambitious development programme, called Vision 2050. This one aims to transform Rwanda into an upper middle-income state by 2035 and a high-income state by 2050. Rwandan economic progress has shortcomings, especially in those areas needed to achieve genuine social and economic transformation for the wider population. In my opinion, there are four main areas that Rwanda’s economy has fallen short on. First, Rwanda lags behind in human capital development. Between 2018—the year the Human Capital Index (HCI) was first published—and 2020, Rwanda’s ranking on HCI has been consistently low. The HCI measures which countries are best at mobilising the economic and professional potential of their citizens. In spite of Rwanda having significantly increased the level of school enrolment in Rwanda, its score on the World Bank Human Capital Index 2020 is lower than the average for sub-Saharan Africa.[54] A child born in Rwanda today will grow up to be 38% as productive as they could have been if they had enjoyed high-quality education and healthcare. The reasons behind such a low score are Rwanda’s poor education standard and high rates of malnutrition. It is important to highlight that since 1998, the UK Department for International Development (DFID) has provided over 1 billion GBP in development assistance to Rwanda to develop areas including its agricultural and educational sectors.[55] A persistently low standard of education is among the main reasons that Rwanda struggles to attract private investment. Second, the development of a solid social capital that is genuinely reconciled and united and capable to advance the development of their country is yet to be achieved. This is challenged by the legacy of the history that led to the 1994 genocide against Tutsi and other crimes against humanity committed in Rwanda and the country’s governance since. Many people lack confidence that there has been justice for all the atrocities committed. I have always pointed out that genuine reconciliation will remain elusive until Rwanda honours and remembers all the victims, of all the crimes, committed during that dark period in our country’s history. Each time I called on the Rwandan government to ensure all crimes of our past history are recognised, I am referred as engaging in polarising politics. Ironically, the United States and the United Kingdom, Rwanda’s closest and most influential allies, share the view that failing to honour the many Hutus and others killed during the genocide paints an incomplete picture of this dark chapter in my country’s history. Curiously, they are never accused of being ‘polarising’. The persisting human rights violations reported in Rwanda over the past decades honed by economic injustice such as authorities uprooting farmers crops or engaging in unfair land expropriations have contributed to social capital depletion in Rwanda. This has increased citizens’ distrust of government institutions and officials. Thus, Rwanda has consecutively ranked among the five nations with the least-happiest populations on the World Happiness index. According to findings of the African Youth Survey 2022, the optimism about the direction of Rwanda of Rwandan youth aged between 18 and 24 has significantly declined from 94% in 2019 to 60% in 2022.[56] Third, the lack of citizen participation in decision making remain low in Rwanda. The power remains with the executive in Rwanda. Human rights organisations have established that Rwanda’s judiciary system is influenced by the executive as in many occasions it has delivered politically motivated judgments. Rwanda has experienced sudden and rapid decline of its performance on index of economic freedom over the past four years due to, among other reasons, the lack of judicial effectiveness. Rwanda moved from being the 2nd freest economy in Sub-Saharan Africa and the 32nd freest in the world in 2019, with a score of 71, to the 30th freest economy in Sub-Saharan Africa and the 137th freest in the world in 2023, with a score of 52.[57] The Parliament that is supposedly to speak on behalf of the people is made of members from the ruling party and from opposition parties affiliated to it. Thus, citizens in Rwanda lack ability to hold their policymakers accountable and this has been an obstacle to development. While Rwanda scores above the sub-Saharan African average for ‘control of corruption’ and ‘government effectiveness’ in the Worldwide Governance Indicators, it falls well below the average for ‘voice and accountability’. Policies are typically implemented with little input from citizens and often lack sensitivity to the population’s wants and needs. This top-down approach not only means that people may be not satisfied with government policies, but the stifling of dissenting voices also means those policies are less likely to be effective and well-designed. For decades, there have not been independent opposition political parties in the country capable of providing checks and balances to the government’s decisions and accountability. The lessons in history teach us that Rwanda is highly unlikely to transition to a modern and competitive middle-income country without developing highly capable and genuinely accountable institutions. Finally, Rwanda’s relationship with its neighbouring states have been deteriorating. This has prevented Rwanda from maximising its potential in the region for the development of its economy. The strained relations arise from the Rwandan government often alleging that its neighbouring states are supporting forces made up of Rwandan refugees that want to topple its leadership by force. Moreover, some of these neighbouring states have accused Rwanda of meddling into their internal affairs. The situation has been creating regional political tensions and have prevented Rwanda from efficiently integrating in the region for the development of its citizens, for example transparently being part of the supply chain of the region’s natural resources. Taking into consideration the flaws in the economy of Rwanda, how would migrants, who may have suffered psychological trauma fare in such an environment, and in a country that is still rebuilding itself? In fact, Rwandans are fleeing Rwanda to seek refugee abroad due to both political and economic reasons. Rwanda Produces Refugees Rwanda itself creates thousands of refugees every year, and its government has yet to guarantee a safe environment for Rwandan refugees settled across the world to return home. According to UNHCR, in 2021 alone, 12838 Rwandans fled the country and applied for asylum elsewhere. This tragic trend did not start recently. Rwanda has been producing refugees in significant numbers since before the country’s independence in 1962. The Rwandan Revolution of 1959, for example, pushed some 300,000 Rwandans into exile in neighbouring Tanzania, Burundi, the Democratic Republic of the Congo (then Zaïre), and Uganda. Just over a decade later, in 1973, a coup d’état caused an additional 40,000 to flee the country. In 1990, the RPF, the armed group made up of the descendants of those who fled the country in the wake of the 1959 revolution, launched an attack on Rwanda seeking to restore democracy and human rights in the country and facilitate the return of refugees to Rwanda. That war increased the number of refugees living in neighbouring countries to at least 600,000. The RPF eventually defeated the government forces and assumed control of Rwanda. But the civil war culminated in the genocide against the Tutsi and pushed about 1.75 million additional Rwandans to seek refuge in neighbouring countries. Approximately 700,000 Rwandan refugees (the majority being those who had fled Rwanda during the 1959 revolution including their children born in exile) returned to Rwanda. The RPF administration led by Kagame was determined to bring all Rwandan refugees home, using soft or hard power—at any cost. In 1996, as part of the Alliance of Democratic Forces for the Liberation of Congo (AFDL) coalition, the Rwandan army invaded the DRC and fought the Rwandan forces that had sought refuge there after the 1994 genocide. During that conflict, the camps that were hosting Rwandan refugees were directly attacked and the UN reported that thousands of Rwandan refugees and Congolese nationals were killed in the process.[58] Close to 750000 Rwandan refugees returned to Rwanda as a result of this conflict.[59] Some of the survivors still live in the DRC, while others have managed to flee to countries in Southern Africa and outside the African continent. They all carry with them horrific memories of state violence. Moreover, the Rwandan government also sought to bring refugees home by signing voluntary repatriation agreements with the governments of African states hosting Rwandan refugees. The Rwandan government also convinced the UN to end the refugee status of Rwandans who had left the country before November 1998. Despite all these efforts, the number of Rwandan refugees in Africa and beyond remains concerningly high. According to the most recent figures by the UNHCR, there are still more than 250,000 Rwandan refugees across the world. There are compelling reasons why so many Rwandan refugees do not want to—or do not feel safe enough to—return to their motherland. The devastating memories of the civil war, the genocide against Tutsi and the killing of refugees in the DRC by government forces are still fresh in the minds of many Rwandan refugees and in the absence of a comprehensive reconciliation policy, they have little reason to want to return to Rwanda. Moreover, persistent poverty and deep inequality, coupled with widespread political persecution and oppression, has not only discouraged the return of existing refugees but is pushing more Rwandans to leave the country and seek safety elsewhere. The failure of the Rwandan government to guarantee a safe environment for Rwandan refugees settled across the world to return home has been a source of instability in the African Great Lakes region. Among the refugees that fled Rwanda to seek refuge in the Democratic Republic of Congo after the RPF army took power in 1994, were the remnants of defeated Rwanda forces and militia responsible for the genocide. Since then, the Rwandan government has maintained that there are negative forces resident in eastern DRC who are set out to destabilise Rwanda, especially the Democratic Forces for the Liberation of Rwanda (FDLR). The FDLR is an armed group formed by Rwandan refugees in DRC who, following their forcible eviction from Rwanda during the genocide, resorted to armed struggle as a means to retake power in Rwanda. Despite Rwanda’s armed forces and militia having launched military operations in collaboration with the Congolese army against the FDLR on numerous occasions, the Rwandan government still insists that the FDLR is a threat to Rwanda’s security. In addition, there are other Rwandan refugees who have been grouped into political parties that oppose the ruling party and agitate for a voluntary and safe return to their motherland so they can exercise political rights without any restrictions. These political parties have members in many parts of the world, including Europe, America, and Africa. The Rwandan government claims these political groups are linked to armed dissident groups in the eastern DRC, or that the groups’ members are genocidaire . There have been political tensions between Rwanda with its neighbouring countries over allegations that these states are supporting Rwanda refugee opposition figures who want to overthrow the Rwandan leadership. In 2016, the UN Security Council accused Rwanda of recruiting and training Burundian refugees with the goal of ousting Burundi’s then-President.[60] Moreover, in 2012 and again in 2022, the United Nations went to the extent of alleging Rwanda’s support for M23, an armed group that is fighting in the eastern DRC.[61] This conflict caused by the M23 has displaced and led to the death of millions of African civilians. Development partners of Rwanda, including the UK, have had to suspend and withhold their aid to Rwanda over the allegations that Rwanda supported the M23 in 2012.[62] Recently the United States has publicly called on the Rwandan government to cease supporting M23 and to remove its troops from the eastern DRC.[63] The European Union and United States have also sanctioned Rwandan military officials for backing the M23.[64] Moreover, The United States has placed Rwanda on the Child Soldiers Prevention Act List and suspended its military aid with the country due to Rwanda’s support of M23, an armed group that the United States says recruits and uses child soldiers.[65] Inter-Rwandan Dialogue: A Solution for Rwanda On 1 July 2021, the 58th anniversary of Rwanda independence, Maître Bernard Ntaganda and I announced that we had submitted to the Rwandan government a Road Map for a promising future of Rwanda.[66] The proposal was made to address the Rwandan refugee problem as well as the roots cause leading to Rwanda repeatedly being categorised as ‘not a free country’ under an authoritarian regime, where political spaces are restricted and human rights are violated. This regime has been alleged by the UN and its development partners to support armed group that have been creating instability in the east of DRC. The promise of a ‘consensual democracy’, reconciliation, and transformation of Rwanda into a middle-income state made by the RPF during the national dialogue in 1999 has not been delivered. Our suggestions argued that domestic governance reform is the single most vital aspect of setting Rwanda on the course it desires. Hence, we proposed that Rwanda hold another inter-Rwandan dialogue between the government, political opposition parties, and civil society organisations internally and externally. The purpose is for these stakeholders to agree on governance reforms that need to be adopted to ensure the political inclusion, respect for human rights and the rule of law, and guaranteeing an environment for a safe and voluntary return of all Rwandan refugees in a dignified manner to their motherland. Why dialogue? The history of Rwanda since its independence has been characterised by successive regimes that have stayed in power by any means possible. The repercussions of this have been massacres and human rights violations, culminating in the 1994 genocide and crimes against humanity. To prevent history from repeating itself, an intra Rwandan dialogue for governance reform is a necessity today. This opening of discussion and inclusivity would help create an environment that could facilitate stability and the sustainable economic development in Rwanda and Great Lakes region that would be in everyone’s shared interests. Our proposal has strong alignment with Rwandan law. Seeking solutions to country’s problem through dialogue is enshrined in the constitution of Rwanda. Moreover, it is in line with the United Nations’ strategy for peacebuilding, conflict prevention, and resolution in the Great Lakes region, adopted in December 2020.[67] This strategy promotes the use of dialogue across region to reach its objectives. The outcomes of the proposed dialogue will not only shift Rwanda towards embracing Commonwealth values, but will also contribute to consolidating peace in the African Great Lakes region. This will also enable Rwanda to be at peace with neighbouring states, efficiently integrate in the region and be part of the transparent supply chain of the region’s natural resources for the development of its citizens. Thus, instead of the UK government partnering with the Rwandan government on an asylum transfer scheme, it should support Rwanda towards resetting its governance so that it embraces Commonwealth value, enabling it finally become a free and democratic country. The UK should utilise its voice and global influence to advocate and endorse resolutions that call Rwanda’s leadership to reform its governance through the aforementioned dialogue. By doing so, the UK would have contributed towards creating secure social, economic, and political environment in Rwanda which can pave the way for fruitful long-term partnership between the two countries. Victoire Ingabire Umuhoza Victoire Ingabire Umuhoza is a Rwandan political figure who champions the establishment of genuine democracy, respect for human rights, and rule of law in Rwanda. In 2010, Victoire returned to Rwanda from exile in The Netherlands to run for presidential candi date but was arrested and sentenced to 15 years in prison by the Rwandan Supreme court in a politically motivated judicial proceeding. Her appeal to The African Court on Human and Peoples' Rights cleared her and held that Rwanda violated her rights to freedom of expression as well as to adequate defence. Victoire was released in 2018 by presidential grace after eight years of imprisonment, five of which she spent in isolated confinement. She has founded and is chairing the Development and Liberty for All (DALFA-Umurinzi) political party. Her party is yet to be registered in Rwanda. It strives for the rule of law and sustainable development that benefits every Rwandan. Since her release she has been advocating for governance reform in Rwanda through holding inclusive dialogue. [1] Home Office and The Rt Hon Priti Patel MP, ‘World first partnership to tackle global migration crisis’ ( Gov.uk , 14 April 2022) < https://www.gov.uk/government/news/world-first-partnership-to-tackle-global-migration-crisis > accessed 13 November 2023. [2] Rwanda Government Communications, ‘Rwanda-UK Migration and Economic Development Partnership’ ( Twitter , 14 April 2022) < https://twitter.com/RwandaOGS/status/1514643560146116617 > accessed 13 November 2023. [3] UNHCR, ‘Operational Update: Rwanda’ ( UNHCR, August 2023) accessed 13 November 2023. [4] UNHCR, ‘Where We Work’ ( UNHCR ) < https://www.unhcr.org/rw/where-we-work > accessed 13 November 2023. [5] Médecins Sans Frontières, ‘Imprisoned, exploited, abused: the horrifying reality for people trapped in Libya’ ( MSF , 20 December 2019) < https://msf.org.uk/article/imprisoned-exploited-abused-horrifying-reality-people-trapped-libya > accessed 13 November 2023. [6] ‘Joint Statement: Government of Rwanda, UNHCR and African Union agree to evacuate refugees out of Libya’ ( UNHCR , 10 September 2019) < https://www.unhcr.org/news/news-releases/joint-statement-government-rwanda-unhcr-and-african-union-agree-evacuate > accessed 13 November 2023. [7] UNHCR, ‘UNHCR Rwanda Factsheet: Emergency Transit Mechanism - February 2023’ ( ReliefWeb , 23 March 2023) < https://reliefweb.int/report/rwanda/unhcr-rwanda-factsheet-emergency-transit-mechanism-february-2023 > accessed 13 November 2023. [8] ibid. [9] UNHCR, ‘The Government of Rwanda, the African Union, and UNHCR agree to continue the evacuation of refugees and asylum seekers from Libya’ ( UNHCR , 1 November 2021) < https://www.unhcr.org/rw/16735-the-government-of-rwanda-the-african-union-and-unhcr-agree-to-continue-the-evacuation-of-refugees-and-asylum-seekers-from-libya.html > accessed 13 November 2023. [10] UNHCR, ‘Evacuees from Libya – Emergency Transit Mechanism’ ( UNHCR ) < https://www.unhcr.org/rw/who-we-help/evacuees-from-libya-emergency-transit-mechanism-centre > accessed 13 November 2023. [11] UNHCR (n 7). [12] ‘Rwanda: the EU provides €10.3 million for life-saving refugee support measures’ ( European Commission , 19 November 2019) < https://ec.europa.eu/commission/presscorner/detail/en/ip_19_6301 > accessed 13 November 2023. [13] ‘European Union increases support to people in need of international protection with additional grant of €22 million to UNHCR to operate the Emergency Transit Mechanism in Rwanda until 2026’ ( UNHCR , 9 February 2023) < https://www.unhcr.org/rw/18777-european-union-increases-support-to-people-in-need-of-international-protection-with-additional-grant-of-e22-million-to-unhcr-to-operate-the-emergency-transit-mechanism-in-rwanda-until-2026.html > accessed 13 November 2023. [14] UNHCR, ‘Emergency Transit Centre Overview’ ( UNHCR , 2021) < https://www.unhcr.org/ro/wp-content/uploads/sites/23/2021/01/ETC-Fact-Sheet-January-2021-Final.pdf > accessed 13 November 2023. [15] UNHCR, ‘UNHCR Niger Factsheet: Emergency Transit Mechanism (ETM) - November 2020’ ( ReliefWeb , 5 November 2020) < https://reliefweb.int/report/niger/unhcr-niger-factsheet-emergency-transit-mechanism-etm-november-2020 > accessed 13 November 2023. [16] ‘Uniformed Personnel Contributing Countries by Ranking’ ( UN , 31 July 2023) < https://peacekeeping.un.org/sites/default/files/02_country_ranking_64_july_2023.pdf > accessed 13 November 2023. [17] UNHCR, ‘UNHCR Analysis of the Legality and Appropriateness of the Transfer of Asylum Seekers under the UK-Rwanda arrangement’ ( UNHCR , 8 June 2022) < https://www.unhcr.org/uk/media/unhcr-analysis-legality-and-appropriateness-transfer-asylum-seekers-under-uk-rwanda > accessed 13 November 2023. [18] ‘Memorandum of Understanding between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Republic of Rwanda for the provision of an asylum partnership arrangement’ ( Gov.uk , 6 April 2023) < https://www.gov.uk/government/publications/memorandum-of-understanding-mou-between-the-uk-and-rwanda/memorandum-of-understanding-between-the-government-of-the-united-kingdom-of-great-britain-and-northern-ireland-and-the-government-of-the-republic-of-r > accessed 13 November 2023. [19] ibid provision 1.6. [20] ibid provision 2.2. [21] ibid provision 22.1. [22] UNHCR, ‘Rwanda: UNHCR Submission for the Universal Periodic Review - Rwanda - UPR 37th Session (2021)’ ( refworld , July 2020) < https://www.refworld.org/docid/607763c64.html > accessed 13 November 2023. [23] Foreign, Commonwealth & Development Office and Julian Braithwaite, ‘37th Universal Periodic Review: UK statement on Rwanda’ ( Gov.uk , 25 January 2021) < https://www.gov.uk/government/speeches/37th-universal-periodic-review-uk-statement-on-rwanda > accessed 13 November 2023. [24] Foreign, Commonwealth & Development Office and Rita French, ‘UN Human Rights Council: Universal Periodic Review Adoption – Rwanda’ ( Gov.uk , 8 July 2021) < https://www.gov.uk/government/speeches/un-human-rights-council-universal-periodic-review-adoption-rwanda > accessed 13 November 2023. [25] ‘Rwanda: A Year On, No Justice for Refugee Killings’ ( Human Rights Watch , 23 February 2019) < https://www.hrw.org/news/2019/02/23/rwanda-year-no-justice-refugee-killings > accessed 13 November 2023. [26] Kerry Jabo, ‘Congolese Refugees Tell Court Rwanda Government Is Not Revealing Real Reason For Their Prosecution’ ( The Chronicles , 25 October 2019) < https://www.chronicles.rw/2019/10/25/congolese-refugees-tell-court-rwanda-government-is-not-revealing-real-reason-for-their-prosecution/ > accessed 13 November 2023. [27] International Refugee Rights Initiative, ‘“I was left with nothing”: “Voluntary” departures of asylum seekers from Israel to Rwanda and Uganda’ ( refworld , September 2015) < https://www.refworld.org/country,,IRRI,,RWA,,55ee8c3a4,0.html > accessed 13 November 2023. [28] R (AAA) and others v. The Secretary of State for the Home Department [2023] EWCA Civ 745 [272]. [29] ibid [273]. [30] ibid [92]. [31] ibid [91]. [32] ibid [101]. [33] ibid [104]. [34] ‘Rwanda’ ( Freedom House , 2023) < https://freedomhouse.org/country/rwanda/freedom-world/2023 > accessed 13 November 2023. [35] ‘Democracy Index 2022’ ( Economist Intelligence ) < https://www.eiu.com/n/campaigns/democracy-index-2022/ > accessed 13 November 2023. [36] ‘Rwanda: Setting the Scene for Elections: Two Decades of Silencing Dissent in Rwanda’ ( Amnesty International , 7 July 2017) < https://www.amnesty.org/ar/documents/afr47/6585/2017/en/ > accessed 13 November 2023. [37] ‘Elections in Rwanda’ ( Amnesty International , 5 September 2017) < https://www.amnesty.org/en/latest/campaigns/2017/09/rwandas-repressive-tactics-silence-dissent-before-elections/ > accessed 13 November 2023. [38] European Parliament, ‘Report: Ad-hoc delegation to observe the presidential election in Rwanda on Monday 25 August 2003’ ( European Parliament , 5 September 2003) < https://www.europarl.europa.eu/cmsdata/212731/Election_report_Rwanda_25_August_2003.pdf > accessed 13 November 2023. [39] ‘Rwanda: Review Doctor’s Genocide Conviction’ ( Human Rights Watch , 15 February 2008) < https://www.hrw.org/news/2008/02/15/rwanda-review-doctors-genocide-conviction > accessed 13 November 2023. [40] United States Department of State, ‘Rwanda 2015 Human Rights Report’ < https://rw.usembassy.gov/wp-content/uploads/sites/147/2016/08/252929.pdf > accessed 13 November 2023. [41] CHRI, ‘Rwanda’s Application for Membership of the Commonwealth: Report and Recommendations of the Commonwealth Human Rights Initiative’ ( Human Rights Initiative , 2009) < https://www.humanrightsinitiative.org/download/Rwanda%20application%20for%20membership.pdf > accessed 13 November 2023. [42] ‘Rwanda: Prison Term for Opposition Leader’ ( Human Rights Watch , 11 February 2011) < https://www.hrw.org/news/2011/02/11/rwanda-prison-term-opposition-leader > accessed 13 November 2023. [43] ‘National Election Commission (Rwanda)’ ( Hansard , 6 July 2010) < https://hansard.parliament.uk/Commons/2010-07-06/debates/10070631000015/NationalElectionCommission(Rwanda)#contribution-10070631000072 > accessed 13 November 2023. [44] European Parliament, ‘MOTION FOR A RESOLUTION on Rwanda: the case of Victoire Ingabire’ ( European Parliament , 4 October 2016) < https://www.europarl.europa.eu/doceo/document/B-8-2016-1075_EN.html > accessed 13 November 2023. [45] ‘Dispatches: Rwanda Turns the Clock Back on Access to Justice’ ( Human Rights Watch , 11 March 2016) < https://www.hrw.org/news/2016/03/11/dispatches-rwanda-turns-clock-back-access-justice > accessed 13 November 2023. [46] ’2018 Annual Conference of the African Bar Association: Resolutions on Rwanda’ ( The Rwandan , 6 September 2018) < https://www.therwandan.com/2018-annual-conference-of-the-african-bar-association-resolutions-on-rwanda/ > accessed 13 November 2023. [47] ‘Rwandan police arrest Paul Kagame critic Diane Rwigara’ ( Al Jazeera , 24 September 2017) < https://www.aljazeera.com/news/2017/9/24/rwandan-police-arrest-paul-kagame-critic-diane-rwigara > accessed 13 November 2023. [48] Victoire Ingabire Umuhoza, ‘Rwanda has to investigate killings of opposition members’ ( Al Jazeera , 24 March 2023) < https://www.aljazeera.com/opinions/2023/3/24/rwanda-has-to-investigate-killings-of-opposition-members > accessed 13 November 2023. [49] ‘Rwanda: Crackdown on Opposition, Media Intensifies’ ( Human Rights Watch , 19 October 2021) < https://www.hrw.org/news/2021/10/19/rwanda-crackdown-opposition-media-intensifies > accessed 13 November 2023. [50] ‘Rwanda: Jailed Critic Denounces Torture in Prison’(Human Rights Watch, 13 June 2022) < https://www.hrw.org/news/2022/06/13/rwanda-jailed-critic-denounces-torture-prison > accessed 13 November 2023. [51] Victoire Ingabire Umuhoza, ‘Rwanda shows that it takes more than seats in Parliament to liberate women’ ( Open Democracy , 8 March 2023) < https://www.opendemocracy.net/en/5050/rwanda-women-in-parliament-employment-culture-empowerment/ > accessed 13 November 2023. [52] ‘Africa's impressive growth’ ( The Economist , 6 January 2011) < https://www.economist.com/graphic-detail/2011/01/06/africas-impressive-growth > accessed 13 November 2023. [53] Victoire Ingabire, ‘Rwanda Vision 2020 – Development Programme Scrutiny’ ( DALFA , December 2019) < https://dalfa.org/en/wp-content/uploads/2020/02/Rwanda-vision-2020-development-programme-scrutiny.pdf > accessed 13 November 2023. [54] ‘Rwanda: Human Capital Index 2020’ ( World Bank , October 2020) < https://databankfiles.worldbank.org/public/ddpext_download/hci/HCI_2pager_RWA.pdf?cid=GGH_e_hcpexternal_en_ext > accessed 13 November 2023. [55] ‘UK–Rwanda development partnership summary, July 2023’ ( Gov.uk , 17 July 2023) < https://www.gov.uk/government/publications/uk-rwanda-development-partnership-summary/uk-rwanda-development-partnership-summary-july-2023 > accessed 13 November 2023. [56] ‘African Youth Survey 2022’ (Ichikowitz Family Foundation, 2022) < https://ichikowitzfoundation.com/storage/ays/ays2022.pdf > accessed 13 November 2023. [57] ‘2023 Index of Economic Freedom’ < https://www.heritage.org/index/ > accessed 13 November 2023. [58] ‘DRC: Mapping human rights violations 1993-2003’ (OHCHR, August 2010) < https://www.ohchr.org/en/countries/africa/2010-drc-mapping-report > accessed 13 November 2023. [59] Amnesty International, ‘Rwanda. Protecting their rights: Rwandese refugees in the Great Lakes region’ ( Amnesty International , n. d.) < https://www.amnesty.org/en/wp-content/uploads/2021/09/afr470162004en.pdf > accessed 13 November 2023. [60] Michelle Nichols and Louis Charbonneau, ‘Exclusive: Burundi rebels say trained by Rwandan military - U.N. experts’ ( Reuters , 4 February 2016) < https://www.reuters.com/article/us-burundi-rwanda-un-idUSKCN0VD04K > accessed 13 November 2023. [61] ‘Letter dated 26 June 2012 from the Chair of the Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security Council’ ( United Nations Security Council , 27 June 2012) < https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/DRC%20S%202012%20348%20ADD%201.pdf > accessed 13 November 2023; ‘UN experts say Rwanda provided military support to M23 rebels in eastern Congo’ ( France 24 , 4 August 2022) < https://www.france24.com/en/africa/20220804-un-experts-say-rwanda-provided-military-support-to-m23-rebels-in-eastern-congo > accessed 13 November 2023. [62] Liz Ford, ‘UK withholds aid to Rwanda in light of Congo DRC allegations’ Guardian (London, 30 November 2012) < https://www.theguardian.com/global-development/2012/nov/30/uk-withholds-aid-rwanda-congo-drc > accessed 13 November 2023. [63] Matthew Miller, ‘Press Statement: Final Report by UN Group of Experts’ ( US Department of State , 19 June 2023) < https://www.state.gov/final-report-by-un-group-of-experts/ > accessed 13 November 2023. [64] Thomas Fessy, ‘EU Sanctions Congo, Rwanda Army Officers’ ( Human Rights Watch , 30 July 2023) < https://www.hrw.org/news/2023/07/31/eu-sanctions-congo-rwanda-army-officers > accessed 13 November 2023; Nicole Widdersheim, ‘US Sanctions Rights Abusers in Eastern Congo’ ( Human Rights Watch , 28 August 2023) < https://www.hrw.org/news/2023/08/28/us-sanctions-rights-abusers-eastern-congo > accessed 13 November 2023. [65] RFI and David Thompson, ‘Enfants-soldats: les États-Unis restreignent leur coopération militaire avec le Rwanda’ ( RFI , 21 September 2023) < https://www.rfi.fr/fr/afrique/20230921-enfants-soldats-les-etats-unis-restreignent-leur-coop%C3%A9ration-militaire-avec-le-rwanda > accessed 13 November 2023. [66] Victoire Ingabire Umuhoza and Maître Ntaganda Bernard, ‘Road Map for a Promising Future of Rwanda’ ( DALFA , June 2021) < https://dalfa.org/wp-content/uploads/2021/07/ROAD-MAP-FOR-A-PROMISING-FUTURE-OF-RWANDA.pdf > accessed 13 November 2023. [67] ‘UN Strategy for the Great Lakes Region’ ( Office of the Special Envoy for the Great Lakes ) < https://ungreatlakes.unmissions.org/un-strategy-great-lakes-region > accessed 13 November 2023.

Nila Ibrahimi is a 16-year-old Afghan women’s rights activist who narrowly escaped the Taliban following their return in August 2021. Upon the overthrow of Kabul in August 2021, Nila’s online notoriety as an activist and her status as a member of the Hazara ethnic community rendered her a target of the Taliban. Nila now resides in Canada with her family and continues to raise her voice to injustice as she raises awareness and fights for the all the women left behind in Afghanistan. CJLPA : Welcome Nila Ibrahimi, and many thanks for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art , to discuss your story of having to lose everything you love and know in the name of fighting for women’s rights. Following the return of the Taliban in August 2021, you voiced the need to protect women’s human rights through your online presence as an activist. As a result, you became a target to the Taliban and this put you and your family in immediate danger, having to narrowly escape Afghanistan.   I would like to begin by asking you to briefly take us through your story, from your initial reaction when the Taliban first reached Dasht-e-Barchi to having to escape your homeland and everything you know to find refuge in Canada.   Nila Ibrahimi : It all started from 15 August when the Taliban got to Kabul. Before that, they had conquered the other provinces of the country, and Kabul could be next. But it was shocking and so horrible that it happened in a day. I mean, I can’t say that day was a normal day in the beginning, but we were just having breakfast and I was thinking if I should start studying for tests that we could have the next day.

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).

On 15 August 2021, the Taliban seized control of Afghanistan. The ‘Apagan’ operation initiated an airlift that successfully evacuated approximately 2600 Afghans to France. However, two weeks later, the airlift operations concluded, leaving a considerable number of the remaining 40 million Afghans trapped within the confines of Afghanistan. Since then, numerous Afghans, compelled by threats related to their profession, gender, or opinions, have been forced to either hide or flee. Those who manage to escape often find themselves stranded in neighbouring countries such as Pakistan, Iran, or Turkey, struggling to survive in precarious conditions. Among them are families yearning to reunite with a spouse or child in France, single women grappling with uncertainty, children, judges, journalists, and activists—all seeking refuge from a country they no longer recognize or one that no longer recognizes them. Limited Legal Routes to France In light of the challenging circumstances faced by Afghans, there are very limited safe and legal routes available for them to reach Europe. Regardless of the process, visa applications must now be submitted in a neighbouring country since nearly all European consular authorities are closed in Afghanistan.

The 2011 Western and Arab intervention in Libya was born of the lessons learned (or, as the case may be, not learned) from the international community’s previous two decades of responding to the outbreak of conflict and commission of gross violations of human rights in various contexts. More precisely, the Libyan case was informed by the international community’s previous failure to stop the horrific genocide in Rwanda and to halt what had been up to that point the largest mass killing on European soil, in Srebrenica, since the Second World War.   During those anxious months in the late winter and early spring of 2011 as observers watched events unfolding in Libya, these lessons ‘weighed heavily on the decision-makers in Washington, London, Paris and beyond’.[1] The world was monitoring a domestic Libyan uprising which was being met, particularly in the city of Benghazi, by the excessive use of force by units under the command of Muammar Qaddafi. The ‘Responsibility to Protect’ (R2P) doctrine was invoked by some international figures to push for the ultimate passage of UNSCR 1973 on the premise of preventing potential crimes against humanity and indeed the resolution contains language pertaining to R2P.[2] This UN resolution paved the way for the NATO and Arab intervention in Libya, which morphed from a protection mission to one of regime change, leading to Qaddafi’s downfall.

My Dark Drawings  begin as I cover the white paper with the blackest of black charcoal. Working in a spontaneous manner I push and pull the charcoal this way and that, allowing the initial flow to take what direction it will. The surface is quickly loaded, black completely dominating white—but it is the white that holds the key. I rub, smear, and cover, standing back looking hard as I search for clues offered by remaining outposts of white. Soon enough my hand goes to work, led by my eye, pulling up light from the darkness with licks from my eraser, trying to locate that which is to be set free. Often the path taken leads nowhere and fresh charcoal almost covers my tracks, a history begins in the traces left by the forsaken trail. Always stepping back to look, once in a while taking photos with my phone to compress and clarify my progress. Then again my eraser goes to work. An image emerges, at times too quickly for its own good, yet others can be more recalcitrant. However when they do reveal themselves their confidence assured, they own me. Taking the lead they drag me along. I become their instrument, the initial clues gaining power, giving, informing, and demanding more as I follow their measure, dancing to their tune, uncovering rhythms as they evolve, leading on to the inevitable conclusion.

KV Duong was born in Ho Chi Minh City, Vietnam, in 1980. He emigrated to Toronto, Canada with his family in 1987 and moved to London, UK on his own in 2010. His art practice spans painting, sculpture, installation, and live performance. In 2022, KV had a solo exhibition titled ‘Too Foreign for Home, Too Foreign for Here’ at the Migration Museum in London, followed by ‘No Place Like Home’ at the Museum of the Home in 2023, a group exhibition of eight artists from the Vietnamese Diaspora that KV co-curated and artistically led.   Originally trained as a structural engineer, KV enrolled in the MA in Painting Programme at the Royal College of Art, London, in September 2023 to further push his artistic investigations and was awarded the Vice Chancellor’s Achievement Scholarship from Royal College of Art in 2024. He is presently exploring latex as a painting medium. Gabriella Kardos: You’ve always been fascinated by material exploration, experimenting with concrete, fibreglass, and polystyrene in the past. Why did you turn your attention to latex?   KV Duong : Latex holds a complex web of connotations deeply rooted in the historical dynamics of rubber plantations during the era of French colonisation in Vietnam, where I was born. Latex also embodies a queer individual’s experience, evoking sexual fantasies and intimacy. Laden with symbolism, I’m using this glue-like substance to act as a signifier and protagonist, fusing together materials of importance in my life to help shape and contextualise my identity and ancestral past.

Tschabalala Self (b. 1990 Harlem, USA) lives and works in Hudson Valley, New York. Tschabalala is an artist and builds a singular style from the syncretic use of both painting and printmaking to explore ideas about the black body. She constructs depictions of predominantly female bodies using a combination of sewn, printed, and painted materials, traversing different artistic and craft traditions. The formal and conceptual aspects of Self's work seek to expand her critical inquiry into selfhood and human flourishing. Recent solo and group exhibitions include: Espoo Museum of Modern Art, Espoo (2024); Highline, New York (2024) Brooklyn Museum, New York (2024); FLAG Foundation, New York (2024); Barbican, London (2024); CC Strombeek, Grimbergen, Belgium (2023); Desert X, Coachella Valley (2023); Kunstmuseum St Gallen (2023); Le Consortium, Dijon (2022); Performa 2021 Biennial, New York (2021); Haus der Kunst, Munich (2021); Kunsthalle Düsseldorf, Düsseldorf (2021); Baltimore Museum of Art, Baltimore (2021); ICA, Boston (2020); Studio Museum Artists in Residence, MoMA PS1, New York (2019); Hammer Museum, Los Angeles (2019); Frye Art Museum, Seattle (2019), amongst many others. Gabriella Kardos : The Fourth Plinth commissions make us look at the world in different ways, addressing issues of importance for British society. They point a mirror to our contemporary world, they embody ideas which need to be expressed in concrete form to remind us of important issues we are facing today. How do you view Lady in Blue within this context?   Tschabalala Self :   Lady in Blue is a sculpture that pays homage to a young, metropolitan woman of colour—a quotidian figure, like many one might encounter in contemporary London. Lady in Blue is not a figure from the historical or political past, but rather a symbol of our shared present and future ambitions. She reflects equity through representation, acknowledgement, and action, where all global citizens are exalted and appreciated for their unique contributions, and a future where the ordinary individual is recognised for their extraordinary capabilities. She expresses resilience and grace through the complications of our ever-evolving modern world.

Brought from my cousin’s Shropshire home early September 2023, the spalted limewood log from which  Eyeless in Gaza  is carved had been left barely protected from the elements after the tree was felled by a storm. It was over four years since that disaster. Axe and saw joined the host of creatures that had invaded the wood before I started to cut with the gouges and chisels of the woodcarver. There was no idea to start with—only to incise and discover. Following routes burrowed by small insects, such as woodworm, and moulds into bark and sapwood seemed a way to learn its story and find what I, as co-sculptor with these small beasts, could expand.

An Avenue to Justice for Afghan Women: Bringing a CEDAW Case Before the International Court of Justice[1]   In a tumultuous Afghanistan, the plight of women and girls has reached a critical juncture. The resurgence of the Taliban in power has not only reversed decades of progress on women’s rights in the country, but has also plunged Afghan women into yet another dark era of severe oppression and erasure.   The Taliban, as de facto  authorities, are freely violating the international human rights treaties that Afghanistan has ratified, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW or the Convention). A chilling regime of systematic gender-based discrimination and violence now prevails. Women and girls are restricted in all facets of life and society, including their rights to freedom of movement, expression, and peaceful assembly, in addition to their rights to employment, political participation, health care, and education.   Afghanistan stands alone as the only state in the world that bars girls from secondary and higher education. Women throughout Afghanistan describe their situation as isolation and suffocation, drawing comparisons to ‘living in prison-like conditions’.[2] United Nations mandate holders have concluded that ‘nowhere else in the world has there been an attack as widespread, systematic and all-encompassing on the rights of women and girls as in Afghanistan’.[3]   The international community has repeatedly condemned the Taliban’s systematic persecution of women and girls. While domestic legal options are currently unavailable, no international legal avenues have been pursued to ensure that women’s and girls’ rights are restored. An untried, overlooked but promising avenue exists. The International Court of Justice (ICJ or the Court) offers a potential platform where the voices of Afghan women could echo, demanding justice and accountability.   Under CEDAW, Afghanistan has consented to the ICJ’s jurisdiction to adjudicate disputes regarding its interpretation and application. Consequently, any other state party consenting to ICJ jurisdiction under CEDAW can bring Afghanistan before the Court to challenge its adherence to the Convention. This approach was highlighted in the June 2023 joint report by the United Nations Special Rapporteur for Afghanistan and the UN Working Group on discrimination against women and girls, which encouraged states to ‘[s]upport international and Afghan civil society justice-seeking efforts for Afghan women and girls for violations of their human rights, including through the […] International Court of Justice’.[4] UN experts have consistently reiterated this stance.[5] While recognising the complexities and challenging nature of such a case, this piece argues that it is not only legally feasible, but also could yield significant and positive impact for women and girls in Afghanistan. The following discussion aims to elucidate this possibility.[6]    Over the years, the ICJ has emerged as an increasingly important forum for adjudicating violations of international human rights conventions. The Court is currently hearing several cases of this nature, including Ukraine v. Russia (concerning the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the Genocide Convention); Armenia v. Azerbaijan  (regarding ICERD); The Gambia v. Myanmar (concerning the Genocide Convention); Canada and the Netherlands v. Syrian Arab Republic  (in relation to the Convention Against Torture (CAT)), and South Africa v. Israel  (concerning the Genocide Convention). Bringing a case under CEDAW at the ICJ would be a landmark first, marking the Court’s inaugural examination of the world’s foremost women’s rights treaty.[7]    1. The Taliban’s Systemic Violations of Women and Girls’ Rights under CEDAW   Since the Taliban’s takeover of Afghanistan in 2021, women and girls in the country have been subjected to severe forms of gender-based discrimination and violence, a situation deemed ‘unparalleled globally’,[8] and identified by UN mandates as potentially constituting gender persecution, a crime against humanity, and possibly ‘gender apartheid’.[9]    The Taliban’s discriminatory policies and practices against women and girls have resulted in a severe erosion of their rights and opportunities. These measures have been implemented through a range of decrees, both written and announced, directly contradicting Afghanistan’s obligations under the CEDAW.[10]    The Taliban have taken a series of measures that have had the effect of banning all girls and women from education beyond the sixth grade. First, through a decree of August 2021, the Taliban authorities banned co-education, and girls were no longer allowed to receive education from male teachers.[11] In September 2021 the Taliban announced the return of male teachers and students to secondary schools, without addressing whether women and girls could return.[12] By March 2022, the Taliban announced that girls from grade seven and up could no longer attend school.[13]  At the university level, women’s access to education was also restricted and eventually prohibited. When the Taliban returned to power, they imposed gender-segregated classes for female students, a mandatory campus dress code, and police control over dormitories, with women receiving severe threats in case of non-compliance. [14] In December 2022, the Taliban banned women’s access to university education.[15] The fear of harassment and violence by Taliban members has also discouraged many young girls from attending schools, even when they are permitted to, with some afraid to leave their homes altogether.[16]   Additionally, only a few months after seizing power, the Taliban instituted a de facto prohibition on many forms of employment for women in Afghanistan, limiting their roles in humanitarian agencies to specific sectors such as health care, primary education, and nutrition.[17] The Taliban authorities prohibited women from holding any senior positions in the civil service, including as judges.[18] In December 2022 and April 2023, respectively, Afghan women faced additional setbacks as they were banned from working with international non-governmental organisations and then with UN agencies except in the exempted areas.[19] Subsequently, in July 2023, beauty salons for women were closed, at a cost of 60,000 women’s jobs, and removing one of the very few spaces where women could find support and community outside their homes.[20]    Moreover, in most Afghan provinces, Taliban   authorities have announced and frequently enforced rules prohibiting women from travelling or leaving their homes, including to go to their workplace without a male family member accompanying them.[21] The authorities also announced rules requiring women to fully cover their faces in public and stipulated that male family members would be punished when women violate rules regarding movement and clothing. [22]  As a result, women and girls faced additional severe limitations in access to education, health care, and employment opportunities.[23] These restrictions also increase their vulnerability to harassment and violence, both in public and a home.[24] Beyond the physical limitations, the psychological impact of living in constant surveillance and fear has been pervasive.[25]    Forced and early marriages have also reportedly increased, partly in response to the economic crisis, further diminishing women and girls’ autonomy and exposing them to coercion and violence.[26]    Women have been forcibly disappeared and severely punished by the Taliban, including with lashings and imprisonment. These severe restrictions have left women economically dependent and vulnerable to continued violence and discrimination.[27]    Women’s access to justice has been also severely curtailed, with numerous obstacles obstructing their ability to seek legal remedies and protection. The imposition of a legal system that purports to rely solely on the Taliban’s strict interpretation of Sharia law often discriminates against women and girls, making it arduous for women to assert their rights in matters such as divorce, inheritance, and child custody. The ban on women working as legal professionals and judges further compounds these challenges, leaving women without adequate legal counsel.[28] Restrictions on women’s freedom of movement, stringent dress codes, and the requirement of male guardians not only restrict their access to legal institutions but also discourage them from pursuing legal action due to fear of retaliation or threats.[29]   The Taliban have also restricted access to health services for women and girls, with severe health consequences.[30] A primary barrier to health care access for women in some areas is the requirement for a male guardian to accompanying them to health clinics, which is also a violation of their medical privacy. The situation is exacerbated as many female health staff are unable to work or fulfil their duties under the current circumstances and no new female healthcare workers are joining the profession due to the Taliban’s bans on education for girls and women.   This combination of restrictions has significantly hampered women and girls’ ability to obtain essential medical and psychological support,[31] as well as to access sexual and reproductive healthcare services, including prenatal and postnatal care, sexual and reproductive health care, and maternal health services.[32] The denial of reproductive rights and healthcare access has had a profound psychological impact on Afghan women, with growing anxiety and fear regarding their reproductive well-being.[33]    Finally, women in Afghanistan are facing profound violations of their right to political participation, denying them representation in the political sphere. The Taliban leadership, all men, has also prohibited women from participating in governance at any level.[34]  Most women who worked for the former government have been unable to resume their jobs. Stifling  freedom of expression and the suppressing of women’s voices have marginalized them from political discourse.[35]    Taliban forces have used excessive force to disperse women protesting. The Taliban have arbitrarily detained many female protesters—in some cases with their entire family, including small children. Detained protesters and their family members have experienced torture and other ill-treatment in custody, including threats, beatings, dangerous conditions of confinement, denial of due process, and abusive conditions for release.[36] This type of treatment has affected female activists, protesters, politicians, and journalists, thereby inhibiting their participation in public and political life.[37]   2. Litigating Before the ICJ for the Rights of Afghan Women and Girls Under CEDAW   2.1. Jurisdiction Over Afghanistan Under CEDAW’s Compromissory Clause   The ICJ has jurisdiction to adjudicate disputes between states (i.e. ‘contentious cases’), but its jurisdiction is contingent on the consent of the involved states—a foundational aspect of international law. Such consent can be established primarily through (1) a special agreement between the states to submit the dispute to the Court; (2) reciprocal declarations made under the ICJ Statute; and (3) a compromissory (jurisdictional) clause in a treaty to which the states are party.[38] Approximately 350 treaties, including CEDAW, contain compromissory clauses that grant the ICJ jurisdiction over contentious cases.[39]    By ratifying CEDAW in 2003 without reservation to its compromissory clause (Article 29), the State of Afghanistan explicitly consented to the jurisdiction of the ICJ thereunder. Article 29 stipulates that any dispute between two or more states Parties ‘concerning the interpretation or application’ of the Convention that is not settled by those parties may be referred by one of them to the International Court of Justice.[40]     2.2. The Taliban’s Actions are Attributable to the State of Afghanistan   The Taliban lacks international recognition as Afghanistan’s government. However, they are considered the de facto authorities in Afghanistan as they have consolidated their administrative control over Afghanistan’s 34 provinces.[41] This means that, despite not having international recognition, the Taliban inherits all obligations and responsibilities that are binding on the State of Afghanistan, including adherence to the international treaties to which it is a party, including CEDAW. The International Law Commission (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts , which codifies customary international law, notes that a ‘ de facto  government…is itself an apparatus of the state’ and its ‘conduct’ is imputable to the state (Article 4; Comment 4 to Article 9).[42] Consequently, actions carried out by the Taliban are imputable to the State of Afghanistan.   As the UN High Commissioner for Human Rights has stated, ‘Afghanistan as a State remains bound by the international human rights obligations stemming from the treaties to which it is a party. The de facto authorities have responsibility for upholding these obligations by respecting, protecting and fulfilling human rights in Afghanistan’.[43] Additionally, because the Taliban authorities are not the recognised government of Afghanistan, they do not have the authority to withdraw from the state’s treaties including CEDAW, while still obligated to meet its provisions.[44]   2.3. Any State Party that has Consented to ICJ Jurisdiction Under CEDAW Can Participate in the Case   Under CEDAW, any state party can challenge Afghanistan’s adherence to the Convention before the ICJ, provided it has likewise consented to the Court’s jurisdiction under the treaty. Additionally, in accordance with Articles 62 and 63 of the ICJ Statute, once the case is initiated, other state parties may co-file or intervene.   Furthermore, Article 48(1)(a) of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts , regarding the ‘invocation of responsibility by a State other than an injured State’ stipulates that any state can invoke the responsibility of another state if the obligation breached is owed to a group of states ‘for the protection of a collective interest of the group’. Commentary to paragraph 1(a) explains that such obligations ‘may derive from multilateral treaties’ sometimes referred to as ‘obligations erga omnes partes ’ (Comment 6)—the principle that every state party to a treaty in question has an interest in other states’ compliance.[45]    Moreover, ‘[o]bligations coming within the scope of paragraph 1(a) have been ‘collective obligations’, ie they must apply between a group of states and have been established in some collective interest’ (Comment 7). The principal purpose of such collective obligations is ‘to foster a common interest, over and above any interests of the states concerned individually. This would include situations in in which states, attempting to set general standards of protection for a group or people, have assumed obligations protecting non-State entities’. Thus, CEDAW, with 189 states parties, attempts to ‘set general standards for protection’ for women, with the stated purpose of eliminating ‘discrimination against women in all its forms’.[46] Accordingly, any state party to CEDAW, provided they meet the jurisdictional requirements discussed above, can invoke Afghanistan’s responsibility. 2.4. Litigating Against the State of Afghanistan Without Recognizing the Taliban   While the Taliban have control over the State of Afghanistan, no foreign government thus far has officially recognised them as its legitimate governing authority.[47] Diplomats from the previous Afghan government continue to represent Afghanistan at the United Nations, indicating that the UN does not recognise the Taliban.[48] Nevertheless, the Taliban have sought to gain recognition and international legitimacy, motivated by the pursuit of financial resources, trade advantages, international status, and diplomatic relations.[49]   Litigation before the ICJ is only between states, meaning that the proposed case would be against the State  of Afghanistan, rather than the Taliban. It is firmly established that initiating litigation against a state does not equate to, nor require, the recognition of its government. ICJ precedents confirm that a state initiating proceedings against Afghanistan would not result in recognising the Taliban as its government. For instance, in United States of America v. Iran (1980) , the United States filed an application against Iran despite the ambiguous nature of diplomatic relations and recognition of the Iranian revolutionary government, referring to it as the ‘Government of Iran’ rather than the ‘Islamic Republic of Iran’, which the Iranian constitution specified. The case continued even after the US severed all diplomatic relations. [50]   In Ethiopia v. South Africa (1960) [51] and Liberia v. South Africa (1960) ,[52] both applicant states instituted proceedings against apartheid South Africa despite their lack of diplomatic relations and their active efforts to boycott and delegitimise it internationally. Moreover, in The Gambia v. Myanmar (2019) , the international community’s lack of recognition of Myanmar’s military junta following its 2021 coup against the civilian government mid-ICJ proceedings, and its subsequent appearance before the Court, did not in any way provide legitimacy to the junta’s rule. Instead, the Court specifically proclaimed ‘that the parties to a contentious case before the court are States, not particular governments’.[53]   As such, pursuing claims against Afghanistan before the ICJ does not require a state to recognise the Taliban as the legitimate government; rather, it demonstrates that a state recognizes that violations of CEDAW are occurring within Afghan territory.   2.5 Procedural Pathway to Litigation and Relief Under CEDAW   To initiate a case at the ICJ under CEDAW, an existing dispute between states regarding the convention’s interpretation or application is required, often identified through multilateral statements or bilateral exchanges such as a note verbale. Per Article 29 of CEDAW, states must first attempt to negotiate a resolution of their disagreement under CEDAW and, failing that, try to organise arbitration for six months. Only after these diplomatic efforts are exhausted, can states bring the dispute to the ICJ.   Once a case is filed at the ICJ, the procedure, as set out in Article 43 of the ICJ Statute, starts with the applicant state(s) submitting written observations on the court’s jurisdiction, admissibility, and merits. The respondent state then either acknowledges these claims and presents its observations on the merits or raises preliminary objections, often addressed in a separate public hearing. If the court confirms its jurisdiction and admissibility of the case, it then proceeds to hear the respondent state’s observations on the merits, followed by a public hearing. The process concludes with the ICJ issuing its final judgement.   As stipulated in Article 41 of the ICJ Statute, once a case is initiated, any state involved may request the ICJ to order provisional measures—obligatory temporary protective or injunctive relief—to safeguard their rights pending a final decision. These interim rulings are aimed at preventing the aggravation of the dispute, particularly critical in prolonged cases relating to situations of armed conflict, or when broad violations of human rights are at risk—as is the situation for women and girls in Afghanistan.   In cases brought under analogous core international human rights conventions, particularly the ICERD, the Court has consistently found the ‘irreparable harm’ required for it to issue provisional measures and has traditionally done so within days or weeks of receiving the request.[54] For example , the Court issued provisional measures within 18 days in a case Ukraine brought against Russia,[55] and within 28 days for a case filed by South Africa against Israel.[56]   And while the ICJ issued provisional measures in only 10 cases during its first 50 years of existence, the number has significantly increased in the past decade, with even more cases involving such measures.[57] In a CEDAW case against the State of Afghanistan, provisional measures could include, for example, orders to lift discriminatory restrictions on education, employment, and movement.   3. Diverse International Participation in Defending Afghan Women’s Rights   As explained above, multiple states parties to CEDAW may jointly file or intervene as third parties in the potential case. This approach is evidenced by cases like Ukraine v. Russia  concerning the Genocide Convention, in which 32 states filed declarations of intervention pursuant to Article 63 (third party interventions) and the European Union also contributed information; as well as in Canada and The Netherlands v. Syrian Arab Republic , in which seven states thus far have filed declarations of intervention. In the recent case of South Africa v. Israel , scores of states have issued public statements about the case, and already a number of states announced they will intervene as a third party. Nicaragua, referring to Article 62 of the Statute of the Court, filed an application for permission to intervene “as a party” in the case.[58] The strength of the case would be significantly enriched by the active participation of a broad spectrum of states from diverse regions.   Such involvement, with each state bringing unique perspectives and regional insights, would ensure a more holistic and globally representative approach to the legal arguments and considerations. Unlike other human rights situations that can be politically divisive, the situation of women and girls in Afghanistan is a rare unifying issue that has garnered global condemnation. This unity should be reflected in the composition of applicants and interveners for the case.   Given the cultural, religious, and geopolitical dimensions inherent in the case, it would be ideal for a diverse group of states (including from different regions) to come forward as co-applicants and interveners. This would provide the Court with a wide spectrum of perspectives and legal cultures, cultivating a balanced interpretation of CEDAW provisions and a more nuanced understanding of the challenges faced by Afghan women and girls.   The involvement by states from various regions, particularly those outside the Western sphere, would also be crucial in countering the risk and perception of double standards and could avoid reproducing a narrative rooted in historical grievances. The history of Western interventions in Afghanistan, coupled with the legacies of these actions, evokes justified frustrations, especially in the context of this case, where the narrative of ‘liberating’ Afghan women has previously been employed to justify military actions.[59] The de facto  authorities have already referred to this narrative in the information they sent to the CEDAW Committee on 30 January 2023, asserting that ‘Western countries repeatedly stated that they came here to support Afghan women, but slowly and gradually this issue disappeared’.[60] Failing to confront this narrative could risk undermining the case’s prospects and could provide the Taliban with an opportunity to challenge its legitimacy, which would be counterproductive for the success of the case. States that might be particularly interested in championing this case include those that have adopted a Feminist Foreign Policy, which means that they commit to upholding equality and women’s rights in their bilateral engagements with other states and in multilateral forums.[61] Feminist Foreign Policy states’ participation in this case would aligned with their responsibility to implement tangible, feminist solutions to foreign policy challenges. Their active involvement, whether as co-applicants or interveners, is helpful for introducing a decolonial and intersectional feminist perspective to the proceedings, which includes among other things facilitating Afghan women’s effective and meaningful participation in the case. The engagement of these states is also crucial for addressing the nuanced issues involved, considering the intersectional nature of the various forms of oppression and discrimination experienced by Afghan women and girls.   Ultimately, the effectiveness and legitimacy of this case will rely on a diligent and respectful approach to the multilayered complexities experienced by Afghans. Case legitimacy is fundamental to ensure its effectiveness. As explained below, the enforcement of ICJ judgements relies heavily on the international community’s will to use the Court’s decisions in political negotiations, and on potential receptivity by the defendant state. An imperative is to ensure that the Afghan community, and especially Afghan women, are genuinely involved in the process—a process which is about them. An inclusive approach is fundamental to addressing the nuanced and intersecting challenges Afghan women and girls endure, providing a pathway to justice that respects the diverse contexts of their experiences.   4. Afghan Women’s Agency Over and ‘Participation’ in the Litigation   Ensuring and respecting the agency of Afghan women throughout this potential case is of paramount importance and a fundamental condition for the case to have true meaning. This should begin from the initial phase of building the case and extend throughout the implementation of any Court ruling. Effective and meaningful involvement of Afghan women in the case ensures it accurately represents their interests and addresses their longstanding exclusion from crucial discussions about their rights. Such active participation has the potential to transform this case into a groundbreaking platform for Afghan women to take control and assert their fundamental rights under international law.   The ICJ does not have formal procedures for direct victim/survivor participation in its proceedings. Article 34 of the ICJ Statute specifies that only states may be parties in court cases, precluding individuals from independently intervening. Despite this, there are ways for Afghan women victims, survivors, and witnesses to contribute and support claims against the State of Afghanistan. This can be facilitated through the applicant state(s), which can incorporate statements from Afghan victims and survivors into the case, and potentially ensure their presence at hearings.[62] This approach enables the voices and experiences of those directly affected to be better involved in the judicial process, especially following their longstanding exclusion from crucial discussions about their rights.   With that said, the involvement of Afghan women in the case should transcend any view seeing them solely as ‘victims/survivors of the Taliban’. They should be acknowledged as agents of change who lead and/or can effectively contribute to the case in various capacities should they want to—from gathering evidence and helping prepare case documentation to working in strategic communications, especially when communicating to the Afghan community. Afghan legal professionals should be part of the legal team, part of the decision-making process, and actively involved in shaping the litigation strategy, including legal argumentation and remedies sought, and where possible, leading oral argument. In this way, Afghan women’s own voices can literally be heard at the ICJ.   Nevertheless, one of the challenges will be to encompass the diverse range of violations and abuses endured by Afghan women and girls. Every effort should be made to ensure a comprehensive representation of the varied intersectional experiences of Afghan women and girls, particularly that of Afghan women who are still in Afghanistan, whose experiences of life under the Taliban are affected not only by their gender but by other factors including their age, disability, economic status, education level, location, sexual orientation, gender identity, and their religion and ethnicity, a concern particularly for women and girls who belong to marginalised religious and ethnic minorities, such as the Hazara.[63]    Ultimately, the effectiveness of the ICJ proceedings hinges not only on the final judgment but also on the inclusivity of the process. If Afghan women are not provided a platform for substantial and meaningful participation throughout the case, the true success of the proceedings, in terms of addressing and remedying their plight, cannot be realised. It will be the responsibility of the applicant state(s) to ensure that Afghan women are not only involved but are invited to be central to the entire legal process.   5. Potential Impact of an ICJ Case   Initiating a case before the ICJ presents a profound and substantive option for legal recourse, and perhaps one of the few available legal avenues to combat the oppressive measures the Taliban has imposed on the women and girls of Afghanistan. Such a case could have far-reaching implications not only for those within the country but also for Afghan women in the diaspora and would be precedent-setting for women’s rights globally.   5.1. Bolstering Diplomatic Efforts to Improve the Situation in Afghanistan   The Court’s rulings in contentious cases are not only legally binding on the states party to the proceedings,[64] but also significantly shape the legal and diplomatic landscape. Although direct compliance by the Taliban may seem unlikely per se, the influence of the ICJ should be considered in the broader context of ongoing diplomatic efforts. The ICJ’s decisions extend an authoritative legal narrative that extends beyond the immediate parties involved.   This would result in a ‘shadow of the law’,[65] wherein all states and other entities, like the UN, engaged in negotiations and interactions with the Taliban are compelled to prioritise the promotion and protection of women’s rights, rather than treating it as a peripheral issue in their conversations. As such, engaging with the Taliban in a context in which the ‘world’s highest court’ has pronounced Afghanistan in violation of women’s and girls’ fundamental rights places significant legal pressure on all interacting entities.   In addition, Article 41(2) of the ICJ Statute requires the communication of provisional measures to the UN Security Council, offering an opportunity to reinforce and bolster the focus on Afghanistan within the Council, particularly in relation to women’s rights. Furthermore, if an applicant state believes that Afghanistan has failed to fulfil its obligations under an ICJ judgement, it may bring the matter before the Security Council under Article 94 of the UN Charter, which, though underutilised, authorises the Security Council to determine the measures to be taken to give effect to a judgement.   5.2. Creating a New Forum for Afghan Women to Assert their Rights   There is mounting frustration among Afghan women over their strongly held view that the international community’s professed commitment to human rights and women’s rights in Afghanistan has not been matched by concrete actions. More than two years since the Taliban takeover, Afghan women continue to await meaningful international action. The proposed case aims to respond to Afghan women’s demands, offering a novel and dedicated platform to further champion their rights under international law. It provides an opportunity for Afghan women to actively participate in the pursuit of justice, advocate for their fundamental rights, amplify their grievances, and elevate their voices on a global stage from which they have been largely excluded.   Additionally, the litigation would grant survivors and victims of the Taliban an opportunity to share their experiences and help establish an official record of violations, which is important for future accountability measures and advocacy efforts. Despite the lack of domestic legal channels, there is hope for a future in which these crimes can be duly prosecuted, and this case could serve as a foundational step in building and enhancing the record for domestic or international accountability efforts.   5.3. Effect on Recognition of the Taliban   From a strictly legal standpoint, the Taliban’s appearance before the Court cannot result in their formal recognition.[66] Nevertheless, there is a valid concern that such litigation could inadvertently bestow some political legitimacy if the Taliban present themselves as state representatives. Yet, the likelihood of this conferring any significant legitimacy seems unlikely, and at most, it would only influence states already inclined toward recognising the Taliban—a scenario with no current examples.[67] Further, should the Taliban not appear to defend a case against Afghanistan, the case would still proceed, with the ICJ determining whether violations of CEDAW are occurring within the country.[68]   The proposed litigation could act as a substantial impediment to the Taliban becoming viewed as the legitimate government of Afghanistan. ICJ rulings, including provisional measures, that find that the Taliban has violated international law, would be an authoritative, legally binding determination that could impact Taliban efforts to gain international recognition and legitimacy. Notably, UN Security Council Resolution 2679 (2023) requested an independent assessment on Afghanistan which focused on the reintegration of Afghanistan into the international system. The assessment was circulated to the Council on 9 November 2023 and underscored the necessity of the Taliban’s adherence to Afghanistan’s international obligations, particularly under CEDAW, noting that key benchmarks must be fulfilled regarding progress on the rights of women and girls in accordance with the state’s treaty obligations. On 29 December, the Council adopted Resolution 2721, which, among other matters, took positive note of the independent assessment.   An ICJ decision that finds the State of Afghanistan in violation of CEDAW could be grounds for unilateral or collective (soft) measures by concerned governments against Afghanistan.[69] Additionally, such a decision could also deter countries considering sending back Afghan women and girls who have sought asylum and compel states to grant refugee status to female Afghan asylum-seekers solely on the basis of gender.   5.4. Advancing Women’s Rights through the First ICJ Adjudication of CEDAW   This case would mark a landmark moment as it would be the first time CEDAW, the world’s foremost treaty on women’s rights, is adjudicated by the ICJ.[70] It offers a significant opportunity to reinforce the principle of gender equality under international law, not just for Afghanistan, but globally. By spearheading this unprecedented case, involved states would establish an enduring legacy in the advancement of women’s rights.   5.5. Complementing Other Accountability Mechanisms that Address the Situation in Afghanistan   The quest for justice by the women and girls of Afghanistan is a multi-layered endeavor that benefits from the complementary roles of various international legal mechanisms in addressing the spectrum of violations they face. Each accountability mechanism has unique capabilities and limitations in delivering justice to Afghan women and girls, and none of them can substitute for another. The potential case before the ICJ too, when strategically employed and coordinated, can complement existing mechanisms and fill some of the accountability gaps.   Discussions around accountability in Afghanistan have primarily focused on criminal accountability, notably the International Criminal Court (ICC) investigation[71] and the application of universal jurisdiction.[72] Both are vital for addressing serious international crimes, yet they are constrained in their scope. This includes jurisdictional limitations on the types of crimes prosecutable and practical limitations on the number of individuals who can be tried. Critically, both the ICC and the exercise of universal jurisdiction are also subject to the discretion of their respective authorities, in terms of who and what is prosecuted.   In contrast, the ICJ offers a venue to address responsibility for a broader spectrum of violations under international human rights law, in particular, CEDAW. This opens a pathway for holding Afghanistan, and the Taliban by proxy, accountable for a wider range of violations that might otherwise go unaddressed. Moreover, litigation at the ICJ could potentially move faster than criminal investigations and prosecutions, for instance through provisional measures, applying more immediate pressure on the Taliban.[73]   As such, a synergistic approach that combines the ICJ, ICC, universal jurisdiction, and tools like the UN Special Rapporteur on Afghanistan’s mandate is essential. These mechanisms can reinforce one another through enhancing the vast range of legal principles involved, gathering evidence, and amplifying the severity of the situation on the international stage. This integrated strategy, as seen in situations like Ukraine and Myanmar, could hold out promises for a more comprehensive justice and reparations for Afghan women and girls for the myriad violations they have endured.   6. Conclusion   Amidst the harrowing situation for the women and girls of Afghanistan, the ICJ offers a novel option for justice and accountability. As the Taliban egregiously flout their obligations under CEDAW, other states who are parties to the Convention possess an opportunity to pioneer a historic move in the global pursuit for women’s equal rights. While such a case would be complex, it is legally feasible and has potential for meaningful impact. This avenue aligns with the increasing calls for justice-seeking efforts by Afghan women and girls and could contribute to restoring fundamental rights in the country and beyond. Fereshta Abbasi, Natasha Arnpriester, and Duru Yavan (All names are listed in alphabetical order by surname.) Fereshta Abbasi is an accomplished human rights lawyer and advocate from Afghanistan. For the past ten years, she has documented human rights abuses in Afghanistan with different organizations, including Human Rights Watch and the All-Survivors Project. Currently, she is the Afghanistan researcher for Human Rights Watch, focusing on research and documentation of ongoing abuses in Afghanistan. Natasha Arnpriester is an international human rights lawyer and Senior Strategic Litigation Officer at the Open Society Justice Initiative, who specializes in developing innovative litigation strategies to tackle complex and challenging human rights issues. Her litigation spans regional human rights tribunals, several domestic courts, and the UN treaty bodies.   Duru Yavan is a human rights lawyer from Turkey, currently working as an Associate Strategic Litigation Officer at the Open Society Justice Initiative, where she uses strategic litigation and advocacy to protect and advance human rights at domestic, regional, and international levels. Her expertise lies in gender justice, accountability for severe human rights violations and international crimes, and the application of decolonial, intersectional feminist approaches to strategic human rights litigation. [1] Since late 2021, Open Society Justice Initiative (OSJI) has conducted rigorous research, developed legal strategy, and compiled evidence in support of a potential ICJ case against the State of Afghanistan for the ongoing grave violations committed by the de facto  authorities against women and girls. The article was greatly enhanced by the review and input of Manuela Londoño, Mariana Pena, and Genevieve Quinn. Advocacy and research compiled in anticipation of this case has also significantly benefitted from several OSJI colleagues, including Betsy Apple, Georgiana Epure, James Goldston, Sophie Li, Diana Romina Puerto Michaut, Ashrakat Mohammed, and Beini Ye, as well as Open Society Foundations (OSF) colleagues, Shehryar Fazli, Sana Ghouse, and Omar Waraich ( all names are listed in alphabetical order by surname) . OSF had an office in Kabul until 2021. Human Rights Watch has documented human rights abuses and violations of international humanitarian law by all parties to the conflicts in Afghanistan, including foreign armed forces, since the early 1980s. Since August 2021, Human Rights Watch has documented human rights abuses by the Taliban, including systematic violations of the rights of women and girls that amount to the crime against humanity of gender persecution; repression and censorship of the media; and abuses against people in custody. Human Rights Watch’s work in Afghanistan involves extensive research and advocacy to promote accountability and urge the protection of fundamental rights for all Afghans. [2] United Nations Office of the High Commissioner for Human Rights, ‘Afghanistan: UN experts say 20 years of progress for women and girls’ rights erased since Taliban takeover’, OHCHR press release  (8 March 2023) < https://www.ohchr.org/en/press-releases/2023/03/afghanistan-un-experts-say-20-years-progress-women-and-girls-rights-erased > accessed 15 November 2023. [3] United Nations Office of the High Commissioner for Human Rights, ‘Situation of women and girls in Afghanistan - Report of the Special Rapporteur on the situation of human rights in Afghanistan and the Working Group on discrimination against women and girls’, A/HRC/53/21 (15 June 2023) < https://www.ohchr.org/en/documents/country-reports/ahrc5321-situation-women-and-girls-afghanistan-report-special-rapporteur > accessed 15 November 2023. [4] ibid. [5] See, eg, ‘Special Rapporteur to Human Rights Council: the Systematic and Institutionalised Discrimination that Seeks to Exclude Women from All Facets of Life in Afghanistan Necessitates an Examination of the Evolving Phenomenon of Gender Apartheid’, speech at the UN Human Rights Council (11 September 2023) < https://www.ohchr.org/en/news/2023/09/special-rapporteur-human-rights-council-systematic-and-institutionalised > accessed 15 November 2023. [6] A more comprehensive version of this paper will be published as a legal brief by the Open Society Justice Initiative. [7] The DRC attempted to bring a case under CEDAW (among several other conventions) in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) , however, the Court found that the DRC never made any attempts to enter into negotiations or undertake arbitration proceedings with Rwanda concerning the application of Article 29 of the Convention, a required prerequisite, nor had it specified which rights protected by that Convention. See Order of 10 July 2002 Request for the Indication of Provisional Measures, para 79. [8] United Nations Office of the High Commissioner for Human Rights, ‘Taliban edicts suffocating women and girls in Afghanistan: UN experts’ press release’ (19 June 2023) < https://www.ohchr.org/en/press-releases/2023/06/taliban-edicts-suffocating-women-and-girls-afghanistan-un-experts > accessed 15 November 2023. [9] United Nations Office of the High Commissioner for Human Rights, ‘Afghanistan: Latest Taliban treatment of women and girls may be crime against humanity, say UN experts’ press release’ (25 November 2022) < https://www.ohchr.org/en/statements/2022/11/afghanistan-latest-taliban-treatment-women-and-girls-may-be-crime-against > accessed 15 November 2023. For an overview of the End Gender Apartheid campaign, see < https://endgenderapartheid.today/ > accessed 15 November 2023. [10] See full list at United States Institute of Peace, ‘Tracking the Taliban’s (Mis)Treatment of Women’ < https://www.usip.org/tracking-talibans-mistreatment-women > accessed 15 November 2023. [11] Srishti Goel, ‘Taliban declare ban On Co-education in Afghanistan, Prohibit Men From Teaching Girls’ ( Republicworld.com , 30 August 2021) < https://www.republicworld.com/world-news/rest-of-the-world-news/taliban-declare-ban-on-co-education-in-afghanistan-prohibit-men-from-teaching-girls.html > accessed 15 November 2023. [12] Emma Graham-Harrison, ‘Taliban ban girls from secondary education in Afghanistan’ Guardian  (London, 17 September 2021) < https://www.theguardian.com/world/2021/sep/17/taliban-ban-girls-from-secondary-education-in-afghanistan > accessed 15 November 2023. [13] Masoud Popalzai and Alex Stambaugh, ‘Taliban postpones return to school for Afghan girls above 6th grade’ ( CNN , 24 March 2022) < https://edition.cnn.com/2022/03/23/asia/taliban-girls-school-delay-afghanistan-intl/index.html > accessed 15 November 2023. [14] Amnesty International. ‘Death In Slow Motion. Women And Girls Under Taliban Rule’ (2022) 22 < https://www.amnesty.org/en/documents/asa11/5685/2022/en/ > accessed 15 November 2023. [15] Associated Press, ‘Taliban bar women from university education in Afghanistan’ ( AP News , 21 December 2022) < https://apnews.com/article/afghanistan-taliban-3cea615c4d5d6d5d7da68b593a7546f2 > accessed 15 November 2023. [16] United Nations Office of the High Commissioner for Human Rights, ‘Afghanistan: Quality Education Must Be Equally Accessible to All, UN Experts Say’ ( OHCHR , 20 March 2023) < https://www.ohchr.org/en/press-releases/2023/03/afghanistan-quality-education-must-be-equally-accessible-all-un-experts-say > accessed 15 November 2023. [17] Al Jazeera, ‘Taliban Ban on Women Has Forced UN into ‘Appalling Choice’’ Al Jazeera  (11 April 2023) < https://www.aljazeera.com/news/2023/4/11/taliban-ban-on-women-has-forced-un-into-appalling-choice > accessed 15 November 2023. [18] Human Rights Watch, ‘Afghanistan’, in World Report 2023 < https://www.hrw.org/world-report/2023/country-chapters/afghanistan > accessed 15 November 2023. [19] Sima Bahous, ‘Statement: The Decree Barring Women in Afghanistan from Working in Non-Governmental Organizations Is Yet Another Stark Violation of Women’s Rights’ ( UN Women , 27 December 2022) < https://www.unwomen.org/en/news-stories/statement/2022/12/statement-the-decree-barring-women-in-afghanistan-from-working-in-non-governmental-organizations-is-yet-another-stark-violation-of-womens-rights > accessed 15 November 2023. [20] ‘Beauty Salons in Afghanistan Are Closing on Taliban Orders’ Al Jazeera  (26 July 2023) < https://www.aljazeera.com/gallery/2023/7/26/beauty-salons-in-afghanistan-are-closing-on-taliban-orders > accessed 15 November 2023. [21] Human Rights Watch (n 18). [22] ibid; Heather Barr and Sahar Fetrat, ‘Afghans Call to #FreeHerFace—Campaign Opposes Taliban Forcing On-Air Female Journalists to Cover Faces’ (23 May 2022) < https://www.hrw.org/news/2022/05/23/afghans-call-freeherface > accessed 15 November 2023. [23] Human Rights Watch (n 18). [24] ‘Human Rights in Afghanistan, 15 August 2021-15 June 2022’ ( UNAMA , July 2022) < https://unama.unmissions.org/sites/default/files/unama_human_rights_in_afghanistan_report_-_june_2022_english.pdf > accessed 15 November 2023. [25] ‘Situation of Afghan Women – Summary Report of country-wide women’s consultations’ ( UN Women , June 2023) < https://asiapacific.unwomen.org/sites/default/files/2023-06/af-Consultation-report-UNWomenIOMUNAMA-130623.pdf > accessed 15 November 2023. [26] Henrietta Fore, ‘Girls Increasingly at Risk of Child Marriage in Afghanistan’ ( UNICEF ,   12 November 2021) < https://www.unicef.org/press-releases/girls-increasingly-risk-child-marriage-afghanistan > accessed 15 November 2023. [27] ‘Out of jobs, into poverty – the impact of the ban on Afghan women working in NGOs’ ( UN Women , 13 January 2023) < https://www.unwomen.org/sites/default/files/2023-01/Gender-alert-3-Out-of-jobs-into-poverty-Afghanistan-en.pdf > accessed 15 November 2023. [28] ‘Human Rights in Afghanistan’ (n 24). [29] ‘Justice Denied: An Examination of the Legal and Judicial System in Taliban-Controlled Afghanistan’ ( Rawadari , 19 June 2023) < https://rawadari.org/040620231635.htm/#:~:text=Rawadari’s%20investigation%20has%20exposed%20widespread,the%20brunt%20of%20these%20violations > accessed 15 November 2023. [30] Office of the United Nations High Commissioner for Human Rights, ‘Afghan women suffer extreme discrimination, restrictions and violence – Deputy High Commissioner’ ( OHCHR, 19 June 2023) < https://www.ohchr.org/en/statements/2023/06/afghan-women-suffer-extreme-discrimination-restrictions-and-violence-deputy-high > accessed 15 November 2023. [31] Zahra Nader and Nargis Amini, ‘The Taliban Are Harming Afghan Women’s Health’ ( Foreign Policy , 2 March 2022) < https://foreignpolicy.com/2022/03/02/the-taliban-are-harming-afghan-womens-health/ > accessed 15 November 2023. [32] Chantelle Lee, ‘What’s the Status of Healthcare for Women in Afghanistan Under the Taliban?’ ( Frontline , 9 August 2022) < https://www.pbs.org/wgbh/frontline/article/healthcare-women-afghanistan-under-taliban/#:~:text=Some%20news%20outlets%20have%20reported,of%20the%20guardian%2C%20Barr%20said > accessed 15 November 2023. [33] Zahra Nader, Matin Mehrab, and Mahsa Elham, ‘‘Despair is settling in’: female suicides on rise in Taliban’s Afghanistan’ ( Zan Times , 28 August 2023) < https://zantimes.com/2023/08/28/despair-is-settling-in-female-suicides-on-rise-in-talibans-afghanistan/#:~:text=As%20Afghan%20women%20see%20their,The%20Fuller%20Project%20has%20found > accessed 15 November 2023. [34] Human Rights Watch (n 18). [35] Wahida Amiri, ‘Women Protest and Power: Confronting the Taliban’ < https://www.amnesty.org/en/latest/campaigns/2023/03/women-protest-and-power-confronting-the-taliban/ > ( Amnesty International , 7 March 2023) accessed 15 November 2023. [36] ‘Afghanistan: Women Protesters Detail Taliban Abuse’ ( Human Rights Watch , 20 October 2022) < https://www.hrw.org/news/2022/10/20/afghanistan-women-protesters-detail-taliban-abuse > accessed 15 November 2023. [37] United Nations, ‘Convention on the Elimination of All Forms of Discrimination Against Women’ (CEDAW) 1979, Article 7 < https://www.un.org/womenwatch/daw/cedaw/text/econvention.htm > accessed 15 November 2023. [38] International Court of Justice, ‘Basis for Jurisdiction’ < https://www.icj-cij.org/basis-of-jurisdiction > accessed 15 November 2023. [39] International Court of Justice, ‘Treaties’ < https://www.icj-cij.org/treaties > accessed 15 November 2023. [40] CEDAW (n 37) article 29. [41] ‘The situation in Afghanistan and its implications for international peace and security – Report of the Secretary-General’ (14 September 2022), paras 3, 15 < https://unama.unmissions.org/sites/default/files/220914_sg_report_on_afghanistan_s.2022.485.pdf > accessed 15 November 2023. [42] International Law Commission, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’, Supplement No. 10 (A/56/10), chp.IV.E.1 (November 2001) < https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf > accessed 15 November 2023. Of note, Afghanistan does not have a government in exile. [43] ‘Situation of human rights in Afghanistan, Report of the Office of the High Commissioner for Human Rights’ (11 September 2023) para 5 < https://documents-dds-ny.un.org/doc/UNDOC/GEN/G23/215/42/PDF/G2321542.pdf?OpenElement > accessed 15 November 2023. [44] The legitimacy of a de facto  government, such as the Taliban, in international legal actions like treaty withdrawal hinges on its recognition by other states and international organisations. Under the ‘principle of continuity of the State’ in international law, a new government inherits its predecessor’s treaty obligations, as the state remains the same legal entity despite changes in governance. For ratifying new treaties or withdrawing from existing ones, a de facto  government requires substantial recognition, as highlighted in the Vienna Convention on the Law of Treaties (VCLT)—a codification of customary international law and state practice—which Afghanistan signed in 1969, however, it does not explicitly address the situation of de facto  governments, leaving much to state practice and interpretation. The VCLT, particularly Articles 56, 67, and 70, sets out the conditions and procedures for treaty denunciation or withdrawal, necessitating formal written instruments or notifications, signed by recognised high-level state officials. Furthermore, as noted, the Taliban’s attempts to represent Afghanistan in the United Nations and other bodies, have been met with reject, and representatives of the previous Afghan government continue to hold Afghanistan’s seats in most international forums. Where the Taliban has engaged in various domestic and bilateral agreements, have not equated to the formal process of ratifying (or withdrawing) from international treaties under international law. The few courts to consider agreements between states and non-state, armed actors have tended to find them not binding under international law. See   Beatrice Walton, ‘The U.S.-Taliban Agreement: Not a Ceasefire, or a Peace Agreement, and Other International Law Issues’, ( Just Security , 19 March 2020) < https://www.justsecurity.org/69154/the-u-s-taliban-agreement-not-a-ceasefire-or-a-peace-agreement-and-other-international-law-issues/ > accessed 15 November 2023. For instance, the Special Court of Sierra Leone Appeals Chamber held in Prosecutor v. Kallon and Kamara  that an agreement between the Government of Sierra Leone and the Revolutionary United Front was not a treaty because it was concluded with a non-state entity. Thus, without widespread recognition, the Taliban authorities lack the authority to withdraw from Afghanistan’s state treaties, including CEDAW, but remain obligated to fulfil their provisions. [45]  Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 449, para. 68;  Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33. [46] CEDAW (n 37) article 2. See also United Nations, ‘Report of the Committee on the Elimination of Discrimination against Women’, 18th-19th sessions, 1998, UN Doc. A/53/38/Rev.1, at p. 49, para. 16 [hereinafter UN, CEDAW Report 18-19 ]; see also Patricia Shulz, Ruth Halperin-Kaddari, Beate Rudolf & Marsha A. Freeman, ‘The UN Convention on the Elimination of All Forms of Discrimination Against Women and its Optional Protocol’ (2d ed 2022), at p. 63 (‘the core goal of the Convention … [is] to eliminate discrimination against women’) [hereinafter Shultz et. al,  CEDAW and its Optional Protocol ]. [47] The UN General Assembly has deferred deciding whether to accredit the Taliban’s choice of Ambassador to the United Nations, leaving in place the prior Afghanistan administration’s Ambassador; see Michelle Nichols, ‘U.N. shelves bid by Afghan Taliban, Myanmar junta for representation’ ( Reuters , 16 December 2022) < https://www.reuters.com/world/un-shelves-bid-by-afghan-taliban-myanmar-junta-representation-2022-12-16/ > accessed 15 November 2023. [48]  Catherine Amirfar, Romain Zamour, and Duncan Pickard, ‘Representation of Member States at the United Nations: Recent Challenges’ (2022) 26(6) ASIL Insights < https://www.asil.org/insights/volume/26/issue/6 > accessed 15 November 2023. [49]  Kate Bateman et al, ‘Taliban Seek Recognition, But Offer Few Concessions to International Concerns’ ( United States Institute of Peace , 28 September 2021) accessed 15 November 2023 ; ‘Afghan women ban makes Taliban recognition near ‘impossible’: UN’  Al Jazeera  (22 June 2023) accessed 15 November 2023 . [50] Oral arguments, Minutes of the Public sittings held from 18 to 20 March and on 24 May 1980, United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) [1980] ICJ Pleadings 249. [51] South West Africa ( Ethiopia v. South Africa ) ICJ < https://www.icj-cij.org/en/case/46 > accessed 15 November 2023 . [52] South West Africa ( Liberia v. South Africa ) ICJ < https://www.icj-cij.org/en/case/47 > accessed 15 November 2023 . [53]  Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Oral Proceedings, 21 February 2022, CR 2022/1 3. [54] See eg, Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) Order of 19 April 2017, Request for the indication of Provisional Measures, ICJ; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Order of 23 July 2018, Request for the indication of provisional measures of Qatar, ICJ; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Order of 7 December 2021, Request for the indication of provisional measures, ICJ. [55] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022. [56] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024. [57] Matei Alexianu, ‘Provisional, but Not (Always) Pointless: Compliance with ICJ Provisional Measures’ ( EJILtalk, 3 November 2023) < https://www.ejiltalk.org/provisional-but-not-always-pointless-compliance-with-icj-provisional-measures/ > accessed 15 November 2023. [58] ICJ, ‘Press Release (No. 2024/14 )Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip ( South Africa v. Israel ). Nicaragua requests permission to intervene in the proceedings under Article 62 of the Statute, 8 February 2024’ < https://www.icj-cij.org/sites/default/files/case-related/192/192-20240208-pre-01-00-en.pdf > accessed 8 February 2024. [59] Maha Abdel Azim, ‘Saving Muslim Women, Scholar Lila Abu-Lughod on the real obstacles facing women in the Islamic World’ ( The Cairo Review of Global Affairs , Winter 2016) < https://www.thecairoreview.com/midan/saving-muslim-women/ > accessed 27 February 2024. [60] CEDAW Committee, Information received by the Committee on the Elimination of Discrimination against Women – Afghanistan (22 May 2023): ‘On 30 January, the Committee on the Elimination of Discrimination against Women (CEDAW) received the response from the de facto authorities in Afghanistan to its request dated 27 January 2022, for information on the situation of women and girls in Afghanistan since 15 August 2021’. Online at < https://www.ohchr.org/sites/default/files/documents/hrbodies/cedaw/received-info/20230522-CEDAW-info-from-de-facto-authorities-in-afghanistan.docx > accessed 15 November 2023; Information sent by the Islamic Emirate of Afghanistan (Ministry of Foreign Affairs Women’s International Affairs and Human Rights Department) < https://www.ohchr.org/sites/default/files/documents/hrbodies/cedaw/received-info/information-from-the-de-facto-authorities-of-Afghanistan.pdf > accessed 15 November 2023. [61] ‘Feminist Foreign Policies: An Introduction’ ( UN Women , September 2022) < https://www.unwomen.org/sites/default/files/2022-09/Brief-Feminist-foreign-policies-en_0.pdf > accessed 15 November 2023. [62]  Antonia Mulvey and Terry Flyte, ‘Syrian Torture Victims Deserve a Hearing Before the ICJ’ ( Just Security , 13 October 2023) < https://www.justsecurity.org/89445/syrian-torture-victims-deserve-a-hearing-before-the-icj/ > accessed 15 November 2023 . [63] Farkhondeh Akbari ‘The Risks Facing Hazaras in Taliban-ruled Afghanistan’ ( Nexus , 7 March 2022) < https://extremism.gwu.edu/sites/g/files/zaxdzs5746/files/Risks-Facing-Hazaras-in-Taliban-ruled-Afghanistan_Akbari_March-2022.pdf > accessed 16 November 2023.  [64] ICJ Statute, article 59. [65] Erlend M Leonhardsen, ‘Trials of Ordeal in the International Court of Justice: Why States Seek Provisional Measures when non-Compliance Is to Be Expected’ (2014) 5 Journal of International Dispute Settlement 306–343. [66]  ‘Developments in Gambia’s Case Against Myanmar at the International Court of Justice Questions and Answers’ ( Human Rights Watch , 14 February 2022) < https://www.hrw.org/news/2022/02/14/developments-gambias-case-against-myanmar-international-court-justice#doesthejunta > accessed 15 November 2023. [67] The unrecognised Myanmar junta appears in The Gambia v. Myanmar , yet this has not furthered its recognition as Myanmar’s government. As discussed above, from a strictly legal standpoint, the Taliban’s appearance before the Court would not result in their formal recognition. [68]  For example, the Syrian government did not participate in the oral arguments. See Mulvey and Flyte (n 62). [69] Syria Justice and Accountability Centre, ‘Q&A: Syria brought to the International Court of Justice’ ( Syria Accountability, 20 July 2023) < https://syriaaccountability.org/syria-brought-to-the-international-court-of-justice/ > accessed 15 November 2023. [70] The Democratic Republic of Congo (DRC) attempted to bring a case under CEDAW (among several other conventions) in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) , however, the Court found that the DRC never made any attempt to enter into negotiations or undertake arbitration proceedings with Rwanda concerning the application of Article 29 of the Convention, a required prerequisite, nor had it specified which rights protected by that Convention. See   Order of 10 July 2002 Request for the Indication of Provisional Measures, para 79. [71] ‘Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan QC, following the application for an expedited order under article 18(2) seeking authorisation to resume investigations in the Situation in Afghanistan’ (27 September 2021) < https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-khan-qc-following-application > accessed 15 November 2023. [72] In recent years, a few universal jurisdiction cases were brought on behalf of Afghan victims of international crimes in the Netherlands and Germany for abuses committed by officials prior to the Taliban’s rise to power in the 1990s. For details, see TRIAL International, ‘Universal Jurisdiction Database’ < https://trialinternational.org/latest/?country=1137&submitted=1 > accessed 15 November 2023. [73]  ‘While the time frame for certain written proceedings may be relatively lengthy in view of the time required by the participating states for the preparation of their pleadings, it should be noted that, on average, despite the complexity of the cases involved, the period between the conclusion of the oral proceedings and the delivery of a judgement by the Court does not exceed six months’. ‘Report of the International Court of Justice 1 August 2022-31 July 2023, General Assembly’ para 11 < https://www.icj-cij.org/public/files/2023-10/2022-2023-en.pdf > accessed 15 November 2023.

Nancy Hollander is an internationally recognized criminal defense lawyer from the Albuquerque, New Mexico, firm of Freedman Boyd Hollander Goldberg Urias & Ward PA, and an Associate Tenant with Doughty Street Chambers, London, UK. The inspiring story of her efforts in freeing Mohamedou Ould Slahi from Guantanamo Bay, where he was held from 2002 to 2016 without charge, were recently captured by the legal drama film The Mauritanian , in which she was played by Jodie Foster. CJLPA : Welcome today, Nancy. I’d like to begin by thanking you again for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art , to discuss your career as a human rights criminal law defence lawyer. Throughout your career, you’ve been involved in the most high profile of cases, representing clients in a wide range of criminal cases, involving white collar crime, drug trafficking, murder, and terrorism. Equally, you are a highly respected and renowned lawyer in international human rights law, having represented clients before the European Court of Human Rights and the United Nations Human Rights Committee. Inevitably, there are many legal topics to discuss based on your work, but in the interests of time I thought that in today’s interview we could focus specifically on your work in defending terrorism, and in particular the implications protecting human rights, or really the lack thereof in such cases. Based on that, I’d like to begun by asking you why you think it is that when dealing with the crime of terrorism it is treated so fundamentally different in a court of law compared to other barbaric crimes such as murder, rape, or kidnapping. Nancy Hollander : The fundamental difference between terrorism and other crimes, and why I don’t think we should have the crime of terrorism, is that it always looks at a community, either a racial community, an ethnic community, or some other community. It’s not a crime involving one person, so even if one person is charged with terrorism, it tends to include the whole community. That to me is the difference. It is a crime on top of another crime; It’s vague and it’s unnecessary. There has never been an international definition of terrorism and I doubt that there ever will be because no one can agree on exactly what it is. CJLPA : That’s interesting. Do you think you have this perspective in retrospect after working on terrorism cases or is that a thought that you had before taking on the cases? NH : Before I took on the cases I did not really think about it to tell you the truth. I was asked to talk about the history of the crime of terrorism at some seminar I was at in the Hague, and I looked into it and realised that my thoughts are not new on this. People have been saying for many years that we should have never had the crime of terrorism and I started looking into it more and I realised…You know you’ve heard people say one man’s terrorist is one man’s freedom fighter. Well, there is truth to that! And if you look at history, who is a terrorist and who is not? The founder of the US, George Washington, was considered a terrorist. Nelson Mandela was considered a terrorist. Jerry Adams, Yasser Arafat, I mean how many more do we need who were considered terrorists at one time but at the same time became heroes. So if you just charge people with what they’re accused of you don’t get into that issue. CJLPA : I’d like to get more specific in some of the cases that you have worked on, beginning with the Holy Land case. In this case you defended Shukri Abu Baker, who was charged with terrorism alongside other co-defendants. Could you briefly walk me through the main ways where justice and the rule of law were denied in this case? NH : There was no justice in that case. It’s the worst case of my entire legal career as far as I am concerned. Shukri and one of his co-defendants, Ghassan Elashi, are each doing 65 years in jail for the crime of feeding children. That is essentially what they were doing. The Holy Land case…I can send you an article I wrote, if I haven’t already sent it to you; which really outlines the whole history. It was a talk that I gave, that I made into an article. But they’re a case where they are charged with material support for terrorism. There was never any accusation that Shukri and any of his co-defendants committed any what we would call even ‘terrorist acts’. They didn’t blow up anything. They didn’t bomb anything. They were not accused of making antisemitic remarks, even. They were just accused of providing charity to people in Palestine and other countries and according to the government, by providing that charity they were somehow assisting Hamas. It was vague, there was never any allegation of them being related to Hamas. It was simply that they were changing the hearts and minds of the people, by the people they were feeding. It’s a tragic case and it’s an example of how they were accused of something that other people did. So during these trials, I can’t tell you how many times it showed the same bus being blown up. The same American flag being trampled on. But they were never accused of doing those things and during the trial it was clear that they didn’t do those things. Other people did those things. And that’s an example of how terrorism has become so broad that under an American case, humanitarian law, I can’t even assist some organization or individual who’s been designated as a terrorist on how to change that, how to come into the democratic process. By assisting them, I’m committing acts of material support. It’s a terrible case and other things happened in that case. It’s the first case in American history, US history, where an expert was allowed to testify in secret. Basically, we were not allowed to know his real name, we were not allowed to know who he was, we were told we couldn’t research him and yet he was supposedly an expert on Hamas. And that meant that there was no right to real cross examination and certainly no right to confrontation, which is something that is required in the US Constitution. The Sixth Amendment says everyone has the right to confrontation. Well, you can’t confront someone if you are not allowed to know anything about them. CJLPA : Based on what you have just mentioned about not being able to cross-examine the expert and also the video of the bus being blown up but there being no actual linkage to the defendants, how and why was that even admissible and what would you do in those situations when it is quite clearly against the law, but the judges are enabling it. Is there any way around it? NH : You can only do what you can do. You can try to convince the jury that the government is wrong; which we did in the first place. We got a mistrial. But then the government came back with four, maybe five, different pieces of evidence that were clearly more prejudicial than probative. That the appellant court said should not have been admitted, but then said it was a harmless error, which probably was a political decision on the part of the court. How do you confront that? I don’t know. You know, we will never give up on this case, we’ve gone everywhere we can with the courts but we can just hope for a miracle, clemency or something that happens, where they get out eventually. CJLPA : Further to how you said that this case seemed to be more political, does this experience make you feel that some legal decisions are pre-determined when the government gets involved, despite lawyers’ best efforts? And do you think there the rule of law can still prevail in such circumstances? NH : I don’t think the cases are necessarily predetermined, but throughout the process, the decisions that prosecutors make, judges make, are weighed against the defendants, certain defendants. Certainly Muslims in the US now, black people as far as we can remember, Native Americans. The US has never been a democracy for all the people. It’s a misnomer. People believe that at one point it was a great country and we have to get back there. Well, when was that? When was the rule of law applied to everyone? Native Americans were slaughtered, genocide. We started with slaves. It’s very hard to accept that the rule of law really exists for everyone in the United States. It’s true in other countries too. What we want to do and what we have to keep doing as defence lawyers is keep pushing, so that the rule of law does apply to everyone. And so in the case of the US, the US legal system does become a justice system, which it isn’t now. It’s not a US justice system, it’s a US legal system that provides justice sometimes and sometimes doesn’t. CJLPA : Based on that, how does a lawyer operate in a justice system where they cannot always trust it, because as you said the rule of law is not always going to be applicable to everyone? You take on a case and the case process that is occurring in the courts is going to be prejudiced. Decisions are going to be made that aren’t necessarily reflective of the justice system that the US is meant to embody. How does a lawyer take on that case knowing that that’s what’s going to happen? NH : There is always a point because there is always the possibility of a miracle, and I don’t mean miracle in a spiritual sense or religious sense. I mean that there are people within the legal system on both sides who are good people and want to do the right thing. I represented a woman for many years in New York and the way I got her out of prison was through the help of the prosecutor. Mohamedou Ould Slahi is a good example of the assistance of the prosecutor. There are people on both sides in the criminal legal system who do want to see justice prevail and there are judges who want to see justice prevail. And when you don’t have those, you just have to keep fighting, and when you do have those you fight together to do everything you can to provide for the rule of law, and that’s what we have to do. You know, fortunately, in the US system, everyone is entitled to a lawyer. Everyone is entitled to have at least one person stand with them and fight against the power of the government. And that person can make a difference. It happens, it doesn’t always happen. Doesn’t happen enough, but we have to keep pushing so it will happen more and more, in the international system as well. CJLPA : Transitioning to a different high-profile case that you worked on, Mohamedou Slahi. After the 9/11 attacks, the Bush administration promised to find the terrorists responsible, no matter what the costs. Mr Slahi was arrested and was ultimately transferred to Guantanamo Bay Detention camp in 2002 and you got involved in 2005, I believe, to defend him. What prompted you or what intrigued you to take on this case specifically? NH : I wanted to do a Guantanamo case and I wasn’t really looking for one specifically. But this one fell into my lap when a lawyer in France, whom I knew, wrote and said he been requested by a lawyer in Mauritania to look into this case and was I interested. And I said yes. I knew virtually nothing about Mohamedou when I started. I knew what he was accused of and that was it. But this was the one that came to me, so this is the one I took. CJLPA : What would you say, when you began this case, were the key elements in your case strategy to prove his innocence? NH : You’ve got to remember he was never arrested, he was captured. There was no legal process happening here. There was no legitimate US court happening here. He was captured in Mauritania. He was taken to Jordan, where he was tortured for seven or eight months. Then rendered to Jordan, rendered to Afghanistan, rendered to Guantanamo, tortured in Guantanamo, interrogated in Guantanamo, and ultimately the court said that he and others could file petitions for writs of Habeas Corpus. But the government’s position was, well they can file them but we are never going to answer them. And it wasn’t until 2008 that the Supreme Court ruled in the Boumediene case that the government actually had to answer these petitions. And then we at least had a legal forum in which to conduct the case. But there was never a real one; other than the Habeas case, which we won in 2009, there was no legal process happening here. CJLPA : As you said, it was based on the Habeas Corpus, that you were able to take on this case and essentially go to court because the US actually never charged Mr Slahi for the crimes that they alleged. Do you believe that, based on that, it was irrespective or irrelevant whether or not, particularly Mr Slahi but also other detainees in Guantanamo Bay, do you think it was irrelevant in such circumstances when such due process was denied? NH : Yes, it became irrelevant and it’s still irrelevant. There are still thirty or thirty-one of them in there. Seventeen of whom I believe are already cleared for release and all but five, six, seven, eight maybe have never been charged with any crime. They have been there since 2002. That’s not a legal process. That is not the rule of law being carried out. If some American/US citizen is in a foreign country and being held for 20 years without being charged, the US government would go crazy. And yet that’s what it is doing and has been doing and people have been tortured. We were able to get a number of those people out and people were tried. One person has been tried, convicted, his case reversed. Another one pleaded guilty, his case was reversed. I have another one there who is facing the death penalty and there are 9/11 guys that are there and are a couple of others who are facing charges in this military commission. But the military commission is not like any court that is structured under US law; it’s under the Uniform Code of Military Justice for Soldiers. It’s not under the federal rules for the US. It’s a made-up court, and due process doesn’t apply. How do you have the rule of law when due process doesn’t apply? CJLPA : Why do you think, after everything is exposed in Guantanamo Bay, that this prison system still exists and how does the US government get away from that? NH : The US is the bully of the world. The US has troops on over 150 of the 200 odd countries on this planet, on the ground. So the US gets away with whatever it wants, basically. And that’s how it has gotten away with this. The US stands up and talks about the human rights violations in China, the torture of the Russians, Cuba, and yet the US is as guilty or more guilty than any of these other countries but it just can get away with it because of its power. Of its economic power, of its strategic power, and that’s how it gets away with it. Empires rule. That’s been the history of the world. CJLPA : So in terms of the next steps for Guantanamo Bay and supposedly shutting it down. Do you think it means more lawyers needing to get involved in these cases and trying them or is it more starting at the root of the problem and trying to work with the politicians and putting more pressure on them? Where would you see the ultimate change factor? NH : Everyone in Guantanamo who wants a lawyer now has one and has had one for many years. And these lawyers keep fighting and that’s how we end up with one or two getting out once in a while. President Biden promised to close Guantanamo, President Obama promised to close Guantanamo. Neither one took decisive action. President Obama is responsible for Mohamedou spending another seven years in prison, because we won this case, A lot of people were winning the Habeas at that time and all the government had to do under Obama, Obama’s Justice Department, Obama’s Attorney General was just not appeal. They go home. They wouldn’t have to worry about what country they go to or where they go. They would get out, And yet most of them were appealed and so Mohamedou sat there for another seven years. And even after he won the second thing which was not a court, the Periodic Review Board, which was six intelligence agencies that found unanimously that he was not a significant threat to the US or its allies, it took several more months to get him out. And then he did not get a passport for three years because the US, as it did with all the countries, told Mauritania they couldn’t give him a passport. So, the US just has its claws everywhere and all you can do is keep fighting and that’s what we continue to do. I fight for my other client, Ibrahim Al Nasiri, in the international court and the Commission lawyers fight for him in his criminal case. The other lawyers who represent the defendants in the criminal cases or in the Habeas cases continue to fight for them. We continue to try to find places that will take them under these strict US rules. And you know there were a number of, and still are, Yemenis in Guantanamo. And they at one point were beginning to go home. And then a Nigerian guy tried to light his underwear on fire in an airplane over Detroit. And he had been recruited and got the equipment that he had from a Yemeni guy. So President Obama said, no more Yemenis go home. Well, that’s collective punishment. And that’s what happened and they got stuck there. And now there is almost no Yemen for them to go home to. They have to go to other places. CJLPA : Despite the disappointing outcome with Mr Slahi and how the Obama administration appealed it, how do you remain motivated in those circumstances? What did you learn from that case and defending Mr Slahi that you can now apply in these current cases where you are continuing the same fight, where you are working for a system that does not always respect the due process and the justice system? NH : I learned a long time ago, in the law, that you just keep going and hope for a miracle, as I told you. With the woman I represented, Precious Paddel, all of a sudden we had a different judge and the prosecutor said now we have a chance and we did. In Mohamedou’s case, all of a sudden he was called up to the Periodic Review Board, one of the last ones called up. After years of thinking what we going to do, we’ve run out of things to do. Something appeared. That’s always possible. So you just keep going, and that’s what I tell lawyers, you just keep going. You keep thinking of new things, thinking of something else. What else can we do? How can we do something that brings this to people’s attention? In Mohamedou’s case, I believe his book, Guantanamo Diary , helped get him out. And the film, The Mauritanian , we now hope will help others get out because it gets the conversation back. People are speaking about it, thinking about it, talking about it. In all criminal cases, which is what I have been involved with, internationally or domestically. You just do everything you know to do, you investigate every corner. You do everything you have the time, energy, finances to do, so that you don’t miss anything. And it won’t work all the time. It won’t work a lot of the time, but it will work sometimes and you’ve got to keep pressing for it. You know, we recently celebrated the anniversary of a case called Gideon v Wainwright. Gideon was a guy in Florida who wrote a handwritten letter to the Supreme Court of the US and said ‘I didn’t have a lawyer’ and as a result of that case, everyone who is charged with a felony in the United States is entitled to a lawyer. Anyone who is going to go to jail, even for a misdemeanour is entitled to a lawyer. But that wasn’t the case before. Before Brown v Board of Education said separate is not equal and said there shouldn’t be segregation in the US schools; there was segregation. So people have to fight that fight. People still have to fight to make sure that a lawyer means a breathing lawyer, an awake lawyer, a not drunk lawyer. So those cases keep happening. But you just keep building on them and fighting for due process in the rule of law and that’s what lawyers do. That’s what we do. It is hard and it is depressing sometimes, often, and its dispiriting but you just keep doing it. CJLPA : Is there a way to also increase accountability of the US government? So to, say, sue certain officials in such circumstances? NH : Yes, there is a way to increase accountability through lawsuits and civil cases against police departments and against police, but those cases are also very difficult. I don’t do them but those are cases where things do change. Police departments have been forced to change through pressure. Pressure on politicians. Getting a politician who is on your side, to focus on those. Electing different people can make a difference. And in the case of Mr Al Nasiri the accountability that he wants, for people to know what happened to him because he was tortured in the CIA black sites. We had to go to the International Courts. And we have had a success. We won two hundred thousand euros for his family, through the European Court of Human Rights. We have a case in front of the International Criminal Court, a case in the UK, a case in front of the UN working committee on arbitrated detention and that will never get him out, but it will get accountability, where other organisations, people, politicians in other countries will see what happened to him. The US is never going to answer to any of those courts. Recently we heard that there was an arrest warrant against Putin from the ICC and I was reading quite a bit about it. And I noticed, they didn’t say ‘well, Russia doesn’t acknowledge this court’. Well, they also didn’t say that the US doesn’t acknowledge this court either… CJLPA : Why do you think it is that the US would never sign to these courts and these Treaties? NH : Because the US is afraid that that will bring out things that happened which the CIA did. That the US will find itself getting arrest warrants for individuals in the US who have committed war crimes. In fact, there is a law in the US that is euphemistically called the Hague Invasion Act and it is a law in the US that says if any American is locked up in the Hague as result of an ICC arrest warrant, US soldiers can go in and get them out. The US worked very hard to get the Rome Statute passed and then said ‘not for us, doesn’t apply to us’. CJLPA : On that point then, what do you think are the implications of the way the US currently operate in outside the international law by committing torture. Could this impact Americans that are currently wrongly detained in other countries such as Iran, where there is also torture? NH : Of course it can apply to other Americans and it has. We’ve seen other countries say ‘the US does this, so we can do it’. There have been numerous amicus briefs written by former admirals, former generals, saying this is dangerous for Americans in other countries. And of course it is because if the US can do it, why can’t others do it to Americans? And yet that argument doesn’t seem to ever get anywhere because the US is the world police and there is a lot of arrogance that goes with that. CJLPA : I’d like to also talk a bit about a common theme that comes up in criminal law, amongst lawyers about innocent versus guilty and I think this is a question that often comes up from, I suppose, academics and people when they ask a criminal lawyer, defense lawyer ‘what if you know your client is guilty?’. How do you, from your perspective as a criminal defense lawyer, explain this, even in the context of defending the most barbaric crimes? NH : It is not my job to decide who is guilty and who is not guilty. It’s never my job to prove someone is innocent. The concept is, is the person guilty or not guilty and it’s up to the government in the US to prove that beyond a reasonable doubt. That’s the standard in most places: proof beyond a reasonable doubt, but that’s the government’s burden. My burden is to defend my client zealously against the government. If, in the end, if the government uses fair tactics, follows the rule of law, provides for due process, and the defendant is convicted, then we will argue about sentencing. But my job is not to be the jury. That’s not my job. My job is to, in the US, essentially defend the US Constitution for everyone, because if it doesn’t apply to my client, it might not apply to someone else, and I don’t think anyone can ever say they won’t be accused of a crime. Someone can say they would never commit a certain crime; they can never say they won’t be accused of committing it. So, that person wants to have the same protection that my client has. I had a client once who I was defending, he was a Republican, who was an oil and gas man and he called me and said, ‘I pulled the lever on the voting booth straight Democrat because I was scared you would find out’. And I said well, the quickest way to turn a Republican into a Democrat is to get him accused of a crime and all of a sudden, ‘What? What is the judge thinking?’. Now you know. You have to approach it that way. I tell people who say, ‘well I could defend certain crimes but not others’, that they’ve got to a really rethink whether you can be a criminal defence lawyer. There are clients I don’t want to defend and I have; I can make that choice. But public defenders don’t get to make that choice. They shouldn’t, they have to represent everyone and everyone the same. And that’s the way it must be. Just because you represent someone who commits a murder, or child abuse, or fraud, doesn’t mean that you did it. It just means that you are providing what the Constitution requires and making sure that there is a rule of law in the country. If we don’t have a rule of law at all, we have a police state. CJLPA : Absolutely. I think inevitably, it doesn’t matter guilty or innocent, every individual has the right to his protection and the right to be treated with human dignity. And that goes back also to Guantanamo Bay. I think a lot of people spoke about the prisoners, whether or not they did it or were they involved. From my point of view, and from what I have read about Guantanamo Bay and the cases, it doesn’t matter if they did do it or they didn’t do it. You read into the torture that they have endured, that the government was responsible for. It’s despicable. No human, no matter what they have done, should ever endure that treatment and they should have had that protection and the justice system failed them because that ever occurred. And so on that point then, I thought it was quite interesting, watching The Mauritanian , which I thought was a fantastic film, I did notice as well that there was a lot of discussion of innocence versus guilt and did he do it, did he not do it. Do you think that was important in the film? NH : I think it was important in the film. It was never important to me. Teri [Duncan] actually, is a death penalty lawyer who represents people on death row and would never have cared in real life whether someone was guilty or not, but the role she took in the film was kind of to be a proxy for the audience. We know that is what the audience is thinking at that point and that’s when I kick her out, you have to leave. Which never happened by the way. There was another lawyer involved who quit but not Teri. But Teri agreed to do this for the film’s sake, to combine these people, so that the audience would have someone to identify with. That whole scene is really interesting because I really would tell someone who took that position, you need to rethink whether you want to be a criminal defence lawyer and you are not on this case anymore. That would have happened. I wouldn’t have been as rude as Jodie was. Jodie has said she was much meaner than I am and ruder. But I did say the last words that are in that scene and those were my words and I must have said them to Jodie when we were talking at one point because she mouthed them. ‘You’ve gotta believe your own shit’, and it’s something that we call trial psychosis. When you get into it you really got to believe, wow, I can really win this. Even when you know you can’t. You’ve got to believe it, you’ve got to believe it and work towards it. And in Mohamedou’s case, there were overwhelming allegations against him that we had to fight one after the other and it turned out that they were all made of nothing. But if you read the police, the first reports you would think he was guilty. Which is true in all criminal cases, if all you do is read the police reports you would think everyone is guilty. And then you got to start parsing it. But I did think it was important for the audience to see how that debate worked out. CJLPA : Reflecting back on your work in that case, today, what would be your advice to present-day lawyers defending a client in a similar situation, not necessarily Guantanamo Bay case, but cases where they are accused of terrorism and confined in the most inhumane prison? Would you have approached the case differently now, thinking back of how it worked through all those years? NH : I don’t know what I would have done differently in Mohamedou’s case, other cases where I have re-thought what I did. But in that case, I think we did everything we knew how to do. I wish we had done some of the investigations that we weren’t able to do, that we didn’t have the funds to do. And maybe things would have moved a little faster. And I am not sure anything would have made a difference at that point at that case. But you know, my advice to people is just don’t give up, turn every corner, be a lawyer, take care of your client. Clients’ stories are the most important and most crimes that are committed by people are the worst five minutes of their lives and they would never do it again. Everyone should be treated with human dignity. And that is the bottom line. Treat your clients the same way you would treat everyone else and care for them, listen to them, listen to what they have to say and do everything you possibly can to win the case. As long as you do it ethically. CJLPA : You mentioned that in Mohamedou’s case you wouldn’t have done something different, but potentially in other cases. Could you expand a bit more on that? NH : Yes, in my first cases. I tried a whole bunch of felony cases when I was a brand-new lawyer. And I know, if I looked back and I did those cases, the ones I lost, and most of them as a public defender, I would say ‘wow, why didn’t I think of this’, ‘why didn’t I think of that’. I didn’t really have very many people to help me at that time, I had some. I went in, I was thrown in and there are other cases where I just feel like I missed something along the way, and I wish I could go back and do them again. CJLPA : What was the most memorable case you have done and why particularly it is that one? Not necessarily the most important, but the most memorable that stuck with you over the years. NH : I really thought about this question, Nadia. There are cases that no one knows about, and I suppose they might be the most memorable, because people know about Mohamedou’s case, they know about Chelsea Manning’s case, they know about Precious Padel’s case, they know about other cases I have won. Lots and lots of high-profile cases, but I was thinking about it. I represented people where we were able to get the charges dismissed and no one ever knew about it. And isn’t that really the best for the client. I remember representing a lawyer who was charged with child abuse. Two people who were charged with child abuse. In both cases they were completely innocent, completely innocent and the cases were dismissed after investigation, and no one ever knew that they were charged. It was the end. Came and went. There was this other guy who was accused of 13 murders and that case people did know about because he got arrested. So it was really high profile, so that case was dismissed. The ones where no one ever knew about them I think are the best. Because that’s where I did my job, because that’s where the criminal legal system worked. Somebody is charged with a crime and then the case goes away because it should and to me those are the most memorable. CJLPA : Do you think that also corresponds with the fact that there was a less of a public eye on it, which in a way offered it more of a due process, having the media cut out of it and the politicians not involved? NH : I do think that matters, a lot. I know that the child abuse cases that I was involved in twenty years ago were a lot different than if I were to be involved in the same case today. The press would be all over it. And it would be a real tragedy for both the complaining witness, who needed some psychiatric care, and for my client, who needed not to have to go through this in the public eye. So I think in many cases that would be different. And that is unfortunate because, you know, there is so much, so much news now about things we never used to know about. We have amber alerts, which we never used to have. We have twenty-four-hour news. We have draconian sentences. And so all of this goes against in many ways the rule of law. Yes, of course we need to protect real victims of rape, real victims of child abuse. But there are times where you don’t know who the real victim is, when the case starts. Is it the defendant or the complaining witness and who is the real victim here? And that is often true in the sex related cases. And those are the ones where they keep the complaining witness’s name and you don’t get to know who that person is, if it is a child. But you know who the defendant is and maybe they shouldn’t, maybe neither one be public until we know where these cases are going. The news is different now than it was twenty years ago. And in many ways that is unfortunate. We don’t have more crime, I keep telling people this. I tell people who say ‘well, it was safer when your son was young’, that, no, it wasn’t, it was actually less safe in the eighties in the US than it is now. Except for murders which went up in the US, during the pandemic, and nobody quite knows why. I mean if you leave the pandemic and the peculiarities of that time out of it. Crime is down, but we never hear more about it. So you’ve got these helicopter parents who won’t let their kids go outside alone. And yet, they are safer than when I let my son go out alone, forty years ago. CJLPA : What would you say is an appropriate balance between having that privacy in the courtroom and the trial taking its course and then equally the public also having awareness of what’s going on around them and their surroundings and the crimes occurring in their neighbourhoods? NH : Well, it is a balance and the public has right to know, and that also benefits someone who is accused because you want the public to be aware, you don’t want to have trials in private, and so there is a balance. But in the balance the defendant’s Sixth Amendment right to protection in favour of confrontation, in due process, the right to a fair trial, always has to be the balance that you look for, always, that balance has to be the one that tips the scale. CJLPA : It would be interesting to know from your experience as a lawyer and working with various other lawyers, what have you noticed makes a good lawyer or a distinguishing one? NH : A good lawyer, in my view, and I tell this to people coming out of law school and people I have been about to hire over years, is someone who is for lack of better words a full-service lawyer. If my client is going to jail and my client says ‘but there is nobody home to take care of my cat’, it’s my job to make sure that the cat gets taken care of. Whenever people go into prison to meet to the client, talk about the crime, talk about the defence, but also make sure that the client is okay, make sure that the client is getting the medicine, and getting the visits he needs, or she needs, make sure that everyone is alright all the time, and listen to the client, listen to the client’s stories and make sure you understand who they are, go visit the crime scene but also visit the family, talk about the history, talk about who this person is, get to know that person, and just be everything that person needs, because the lawyer is ultimately the only person between the defendant and the accused and the world and the government. It’s pretty simple. CJLPA : Absolutely. One more question, just to wrap everything up: in your legacy of defending human rights law throughout your career, how would you want this fight to continue by your successors and what do you hope is going to improve over the years in the justice system? NH : If I were starting today, I’d be figuring out how to represent migrants and refugees around the world. There are people in refugee camps all over the world that we don’t know anything about. Hundreds and hundreds of people who were born, live, die in camps where they get no services, no UN services, no NGO services, they don’t even know they exist. They’re huge, they’re all over the place. And that’s where I think that’s where I would devote my time if I were starting now. I work in an organisation, I’m on its advisory board at the International Bridges to Justice and a goal is to provide lawyers to everyone, and making sure that people who are in prison in countries that have very few lawyers get lawyers, to make sure lawyers are trained all over the world, make sure that the world understands why we need lawyers, and why people who think they will never commit a crime need to make sure that everyone has a lawyer to protect them, and their families, and the rule of law for everyone. But I tell lawyers now when they say ‘what would you do?’, I say I would do immigration law and migrant law, refugee law, because that to me is becoming the biggest issue around the world. CJLPA : Absolutely. I agree on that. Thank you very much for taking the time to speak with us today. 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.

Introduction ‘Drown them in the details’, a long-standing strategic tradition of the Syrian government, was cited by Syria’s foreign minister, Walid al-Muallem, in December 2011, after signing the Arab League agreement that allowed a mission to enter Syria to monitor human rights violations, and to ensure that the Syrian government implemented the Arab Initiative.[1] The Arab League peace initiative included ending the crackdown on protests, withdrawing the army from the cities, and giving the Arab mission complete freedom to visit detention centres. In the press conference following the signing of the agreement, al-Muallem said: ‘If we are going to drown the mission in the details, they must learn to swim’, in response to a journalist who asked what the intentions are behind Syria signing, and whether Syria will drown the Arabs in the details, so that the Arab Initiative would take several years to be implemented.[2] Weeks after the UN High Commissioner for Human Rights, Navi Pillay, had stated that the Syrian Government ‘has manifestly ignored the pleas and condemnations of the international community at all levels’, the United Nations nonetheless welcomed this agreement.[3] The agreement was, however, never implemented. The Arab League monitors withdrew from Syria because the bloodshed continued. In his concluding report, the Arab Mission head Mohammed al-Dabi said that the Syrian government’s ‘intentions towards the mission since its formation were insincere, and more generally, not serious’.[4] Examples of the Syrian government’s insincerity and manipulation of its pledges and obligations under the Arab agreement and other related agreements include: Fixing fake town signs to mislead observers into areas loyal to the government. Painting olive green military vehicles with blue, so as to avoid withdrawing the army from inside the cities. Transferring detainees from detention centres to buses and circling them around the city between 8am and 5pm, in case observers decided to visit detention centres. Grasping ‘the devil’ in the details of the perpetrator governments’ reactions to the justice and human rights advocacy actions is crucial to the release of human rights defenders, lawyers, and humanitarian organisations. This will provide decision makers with the insight to plan high-impact and low-effort strategies to address and prevent grave violations of human rights in Syria. In this paper, I closely examine two recent cases where the Syrian government apparently acted in response to the international pressures to end its grave violations of human rights and consider whether those responses had a genuinely positive effect in ending the violations: Case I. Issuing a law criminalizing torture. Case II. Abolishing military Field Courts. I. Case 1. Anti-Torture Law: Nullum crimen sine lege On 30 March 2022, Syrian President Bashar al-Assad issued Law No. 16 of 2022 to criminalize torture ‘in accordance with…the provisions of the Convention against Torture, which the Syrian Arab Republic had previously ratified’,[5] according to a tweet by the Syrian presidency.[6] Like most Syrians, including victims and survivors of torture, various international human rights organizations responded to this news with a grain of salt. Human Rights Watch, for example, described the decree as an April Fools’ joke, ‘given how pervasive the use of torture is by Syrian state authorities’.[7] They noted that: While it is hard to attribute intent to a government defined by arbitrariness, the passage of the law could be a response to ongoing efforts to prosecute the use of torture by Syria officials in the conflict, including an effort by some states to hold the Syrian government accountable for torture under the United Nations Convention Against Torture.[8] Amnesty International described the decree as a legislative step towards complying with internationally recognized anti-torture conventions, but noted that ‘the new law effectively whitewashes decades of state-sanctioned human rights violations’.[9] On 18 September 2020, the Netherlands announced that it had asked the Syrian government to enter negotiations to resolve a dispute concerning Syria’s violations of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), to which the Netherlands and Syria are parties.[10] The Netherlands confirmed that in case no agreement was reached, it would submit the case to the International Court of Justice (ICJ). On 4 March 2021, Canada also announced that it had requested formal negotiations under UNCAT to hold Syria accountable, citing the Netherlands’ announcement.[11] In June 2022, I contacted the governments of Canada and the Netherlands to inquire about the status of their negotiations with the Syrian government.[12] They replied that to negotiate in good faith implies that the process, strategy, and correspondence with Syria are confidential and that they ‘cannot comment on the exact dates or content of any submissions or letters to the Syrian Arab Republic, the International Court of Justice, or any other party regarding this dispute for reasons of confidentiality’. Global Affairs Canada added that they can however confirm that the dispute resolution process is ongoing.[13] They said that once they reach a stage where more information can be provided, they will do so, keenly aware of the people—the Syrian victims—for whom this step was taken.[14] Whilst the dispute resolution process was ongoing, and a complex and lengthy process, they stressed that it was the next step in combating impunity and obtaining justice for the most serious crimes under international law committed against Syrian victims. On 8 June 2023, the ICJ published the document of the Dutch-Canadian joint application instituting proceedings concerning UNCAT violations.[15] The application document detailed the process of negotiations with the Syrian government, including the correspondence and meetings dates and requests made by the Netherlands and Canada. Examining these details shows that the negotiations and the issuing of Law No. 16 of 2022 to criminalize torture are significantly correlated. On 9 August 2021, the Netherlands and Canada presented a Statement of Facts and a Statement of Law to Syria in writing. The statements included a description of the relief sought by the Netherlands and Canada, in particular: ‘cessation of violations of the Convention against Torture, assurances and guarantees of non-repetition, and full reparation for victims’. The UNCAT articles which the Netherlands and Canada accused Syria of violating include Article 2: Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.[16] Since then, sixty-six Notes Verbales have been exchanged between the Netherlands, Canada, and Syria, including discussions about the dispute and attempts to negotiate a resolution.[17] On 30 September 2021, Syria informed the Netherlands and Canada that it rejected ‘in toto’ the characterisation of the dispute as an admission of international responsibility for the recent breaches of its obligations under UNCAT. As a response to the Netherlands’ and Canada’s negotiations with Syria regarding its violations of UNCAT Article 2,[18] and as a pre-emptive measure to counter the accusations made by the Netherlands and Canda in foreseeable legal proceedings at the ICJ, the Syrian president Bashar al-Assad issued Law No. 16/2022 on 30 March 2022 to criminalize torture ‘in accordance with the constitutional obligations of the state that prohibits torture, and with the provisions of the Convention against Torture, which was previously ratified by the Syrian Arab Republic’. On 25 April 2022 and 5-6 October 2022, representatives from the Netherlands and Canada met in-person with representatives from Syria in Abu Dhabi, United Arab Emirates, as part of their efforts to negotiate a resolution of the dispute. After more than two years of exchanges of Notes Verbales, without any progress towards settling the dispute, the Netherlands and Canada concluded that negotiations had become deadlocked or futile.[19] On 17 October 2022, they informed Syria of their conclusion by Note Verbale. On 8 June 2023, the Netherlands and Canada (the Applicants) started legal proceedings at the ICJ to hold Syria accountable for torture under the UNCAT. They filed a joint application instituting proceedings concerning violations of the UNCAT. Together with the Application, the Applicants filed a Request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court and Articles 73, 74, and 75 of the Rules of Court. However, on 15 July 2023, the ICJ announced that it decided to postpone the proceedings that were originally due to commence on Wednesday 19 July 2023, to 10 and 11 October 2023, following Syria’s request for a postponement. Law No. 16/2022: Nullum crimen sine lege Based on the UNCAT torture definition,[20] Law No. 16/2022, defines torture in Art. No. 1 as follows: For the application of the provisions of this law, torture means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for obtaining information or a confession from him or another person, or punishing him for an act he has committed, or intimidating or coercing him to perform an act. When such pain or suffering is inflicted on a person for any reason based on discrimination of any kind, or when it is instigated or consented to, expressly or implicitly, by an employee or any person acting in his official capacity. It also includes actions committed by a person or group to achieve personal, material, or political goals or with the intention of revenge or retaliation. [21] The Latin phrase ‘Nullum crimen sine lege’ or its English equivalent ‘no crime without law’ reflects an essential principle of criminal law: that only the law can define a crime and prescribe a penalty.[22] This means that no person may be convicted of a crime for an act that was not forbidden by law at the time it was committed. Whilst the Syrian constitution and the Public Penal Code prohibit torture in loose and ambiguous terms, the act of torture itself was never defined under Syrian law. Law No. 16/2022 was the first-time torture was defined, creating a new criterion for punishment. Based on the new definition, the Syrian government can only punish torture defined in this law after the law was created. Another attention-grabbing element in the new definition is the term ‘omission’, which is not included in the UNCAT definition. Previously, Syrian law prohibited and punished those who committed torture, but not those who allowed it. The new law criminalises those who abstained from action. This means that every official, especially high-ranking officials including the head of the state, cannot be punished for omissions before this new law was issued. Law No. 16/2022 also included a provision that is not mentioned in the UNCAT definition, namely: ‘It also includes actions committed by a person or group to achieve personal, material, or political goals or with the intention of revenge or retaliation’. [23] This addition apparently targets torture committed by individuals, including non-state actors, and the opposition. Thus, under Syrian national law, the Syrian judiciary is ‘legally’ permitted to not punish acts of torture committed by the state before Law No. 16/2022 was issued. However, under international law, as a state party to UNCAT, and under the command responsibility and failure to act, Syria should be obliged and be able to punish acts of torture from all perpetrators, including high-ranking officials. II. Case 2. Abolishing Military Field Courts: Between Scylla and Charybdis On 3 September 2023—only 30 days before the first ICJ hearing and following Syria's request to postpone it, in an apparent pre-emptive step to counter the accusations made by Applicants in the legal proceedings at the ICJ, al-Assad issued Decree No. 32/2023, ending the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of Military Field Courts. The Decree effectively abolished the Military Field Courts and stipulated in its Art. 2 that ‘all cases referred to the Military Field Courts shall be referred in their present condition to the military judiciary for prosecution’. The Syrian president issued Decree No. 32/2023 ending the effect of Legislative Decree No. 109/1968 and its amendments on the establishment of Military Field Courts, after decades of countless calls from Syrians, the United Nations, human rights organisations, and others to reform or abolish these courts. This decree seemed surprising to many Syrians. For 55 years, Syrians (even children and other nationals such as Palestinians[24] and Lebanese[25] and lately dual US-Syrian citizens)[26] have suffered under these Military Field Courts. Since its creation, those courts have been used to imprison and execute tens of thousands of Syrians, including military and political opponents, journalists, lawyers, human and ethnic rights activists, and children. The rules and proceedings of those courts were so summary and arbitrary that they cannot be considered to constitute a fair trial, let alone a judicial process.[27] Military Field Courts: Background Military Field Courts were created after the 23 February 1966 military coup d’état in Syria. The coup was planned and led by Chief of Staff of the Armed Forces Salah Jadid, the commander of the Syrian Air Force, Hafez al-Assad, and army Lieutenant Colonel Mustafa Tlass, among others. Since March 1949, Syria went through around 16 military coups and coups attempts, which in some cases, handed over the government to civilians. The 1966 coup was the final nail in the coffin of democratic experimentation, parliamentary and civilian governing in post-colonial Syria and made Syria a one-party state with military authoritarian domination over the daily life of Syrians. The 1966 coup overthrew the Syrian government, took over the Baath Party leadership and announced the Interim Regional Command of the Arab Socialist Ba'ath Party, which issued Statement 1 with 2 articles: Suspending the Constitution Appointing Hafez al-Assad as defence minister The coup leadership in the Interim Regional Command appointed the head of the state and the prime minister, and within one year issued decrees and decisions that tightened the military coup leaders’ grip over the social, economic, legal, military, and intelligence aspects of life in Syria, including: Decree no. 130/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, creating the National Union of Syrian Students, which ensured the coup leaders’ control and monitoring of universities and higher education. After 2011, Bashar al-Assad used it as an intelligence branch inside universities and university residences to arrest, torture, and kill university students, and hand them over to the intelligence services,[28] Decree no. 117/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, establishing the system of the Red Crescent Organization, a leading organisation directing and implementing humanitarian aid, which is subject to the supervision and intervention of intelligence services,[29] and practises discrimination and other violations of the principles of humanitarian work,[30] Decree no. 96/1966, ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’ allowing the seizure of the official Syrian Civil Aviation Company by the Ministry of Defence,[31] and Decree no. 109/1968,[32] ‘based on the provisions of the Interim Regional Leadership of the Arab Socialist Baath Party’, establishing Military Field Courts. Military Field Courts and Fair Trial In Field Courts, sessions would last only minutes, with no witnesses or lawyer present. Some defendants were only informed of their verdict years after their trial. Others were sentenced without ever being present at a hearing.[33] Detainees that were eventually referred to parts of the court system on criminal charges were invariably subjected to multiple violations of the right to a fair trial. Proceedings of the Military Field Courts were of particular concern, owing to the general lack of evidence utilised and the imposition of death sentences.[34] Military Field Courts are exceptional courts that issue sentences that are not subject to any form of appeal. These courts can pass any sentence, including the death penalty. Their rules and proceedings are summary and arbitrary that they cannot be considered a legitimate judicial. They are not required to operate within existing legislation and, once a sentence is issued, there is no possibility of appeal. However, the sentences they issue are subject to the approval of the head of state and the Minister of Defence.[35] These courts constituted a powerful authoritarian tool: to suppress any counter-coup attempt and to persecute and prosecute rivals to power without the intervention of the fair judiciary and lawyers. These courts enabled absolute power to the 1966 coup leaders, including the new minister of defence Hafez al-Assad, to eliminate political opponents. In 2005, the German magazine Der Spiegel published an interview with Mustafa Tlass after he retired as a defence minister, having served for 32 years: Tlass no longer knows exactly how many death sentences he has signed personally, and he speaks quietly as he explains why these horrific acts were unavoidable, even the many who died by hanging. At times in the 1980s, he says, 150 death sentences a week were carried out by hanging in Damascus alone. ‘We used weapons to assume power, and we wanted to hold onto it. Anyone who wants power will have to take it from us with weapons’, says the general, smiling.[36] It is unclear if the executions Tlass signed were only issued by the Military Field Courts, or included those issued by the military courts. However, it indicates the huge number of executions issued by both military courts and Military Field Courts against opponents of the 1966 coup leaders and the Syrian regime. Syrian officials and lawyers affiliated with the Syrian bar described this decree as a positive step towards juridical reform and to end the violations of a fair trial. However, according to Decree No. 32/2023: all cases referred to the Military Field Courts will be transferred to the military justice to make the pursuit according to the rules of punishment law and military trials issued by legislative decree No. 61 for 1950. [37] The news of abolishing Military Field Courts had an emotional impact on Syrians with painful collective and personal memories of these notorious courts. It invoked the decades-long struggle and traumas of several generations in these courts. Generations of opponents, human rights activists, and lawyers have called for its abolition, some of whom spent their childhood and upbringing amid these demands and the trauma caused by these courts. The Syrian government’s comment on abolishing Military Field Courts The Director of the Military Justice Department in Syria, Major General Yazan Al-Homsi, said that ‘Legislative Decree No. 32 forms part of the reform process adopted by President Al-Assad. It is a process that is not newly born but began in the pre-war years and included various fields in administration and institutions, in the judiciary, in the military, and others’.[38] Syrian lawyer and member of the Syrian government Bar Association Ghassan Abu Alwan considered this new presidential decree ending the Military Field Courts a ‘positive step’: The new presidential legislative decree to end the work of Field Courts and transfer them to the military judiciary is a positive and important step’. It took the Assad regime 55 years of slaughtering Syrians and political opponents by illegal executions and hundreds and perhaps, thousands of demands and calls to finally end these courts. But the grim, yet unsurprising news is that Assad handed over the commission of violations and crimes against fair trials and other international law obligations from one apparatus to another. Therefore, the same crimes and violations will continue under a different name. Perhaps judges and employees of military courts will continue their work under a new desk nameplate and job title. The Military Penal Code and Fair Trial The Syrian criminal justice system, which includes civilian courts, the Counter Terrorism Court, and military and Field Courts, is systemically failing to uphold international human rights standards at every step of the judicial process.[39] Law No. 61/1950 (the Military Penal Code), [40] regarding the military courts to which Decree 32 [41] referred the Military Field Courts’ ongoing cases, allows for violations of several international treaties adopted by Syria and have articles which are not substantially different from the regulations of the abolished Field Courts. Military judiciary jurisdiction over civilians The Military Penal Code allows targeting civilians on charges based on freedom of expression, assembly, and association, and peaceful criticism, whether it is criticism of the army, the government, or economic conditions. Article 47 of the military penal code specifies the military courts’ jurisdiction and states that: These courts may be granted, by a decree taken by the Council of Ministers based on the proposal of the Commander-in-Chief of the Army and Armed Forces and the Minister of Justice, the right to consider all or some crimes against the internal security of the state.[42] Definition of crimes against the internal security of the state The Military Penal Code does not define ‘crimes against the internal security of the state’; these crimes are stipulated in the General Penal Code. According to the ‘Arab Encyclopaedia Authority’, which was established by Legislative Decree No. 3 of 1970 [43] and is affiliated with the Syrian Presidency: The Syrian legislator stipulates crimes against state security in Articles (291-310) of the Penal Code, which are: felonies against the constitution—usurpation of a political or civil authority, or military leadership—sedition—terrorism—crimes that undermine national unity or disturb peace among the elements of the nation—undermining the state’s financial position. [44] Articles (291-310) of the General Penal Code allow criminalising freedom of speech, peaceful political expression, and the freedoms of assembly and association. For example, Article 307 of the General Penal Code states that for: Every action, every writing, and every speech that intends or results in inciting sectarian or racist strife or inciting conflict between sects and various elements of the nation... The court may order the publication of the judgement. [45] 2 means in practice that the rule is not to publish. Article 309 states that: Whoever broadcasts, by one of the means mentioned in the second and third paragraphs of Article 208, fabricated facts, or false allegations to cause a decline in national banknotes or to undermine confidence in the strength of the state’s currency, its bonds, and all documents related to public financial trust, he shall be punished with imprisonment from six months to three years and a fine from two hundred and fifty pounds to one thousand pounds. [46] Article 123 of the Military Penal Code punishes: Every military or civilian person who insults the flag or the army, harms its dignity, reputation, or morale, or does anything that might weaken in the army the spirit of the military system, obedience to superiors, or the respect due to them, or criticises the actions of the General Command and those responsible for the actions of the army, in a manner degrade their dignity. [47] The Syrian Military Penal Code contains provisions that blatantly breach fair trials by allowing secret trials, banning publishing procedures, immunity for perpetrators, and targeting civilians including journalists: Decisions issued by the investigating judge are not subject to any method of review.[48] It allows execution sentences for military and civilians under many charges, including ‘anyone who incites the military to join the enemy or the rebels’.[49] Sentences in absentia allow sentenced individuals to appeal the decision within only five days.[50] Sentences in absentia allow the confiscating of all ‘existing and future movable and immovable shared and non-shared funds’. It allows prosecuting and punishing journalists.[51] It gives the military judiciary the sole right to decide on conflicts of jurisdiction with civilian courts.[52] Its jurisdiction includes crimes that military courts were given the right to decide under special regulations and laws.[53] It provides protections to the perpetrators and immunity from prosecution. The prosecution order is issued only by the Commander-in-Chief of the Army and the Armed Forces, the Syrian president.[54] Law No. 16/2022, defining and punishing torture, and Decree No. 32/2023, abolishing military Field Courts, will be used by the Syrian government at the ICJ in order to counter accusations made by the Applicants in the Court. Destroying evidence of crimes and information about disappeared persons In its Article 2, Decree No. 32 states that ‘all cases referred to the Military Field Courts shall be referred in their present condition to the military judiciary for prosecution’. [55] The decree does not address the fate of the previous/completed/past cases records. Those records should have strong evidence of systematic grave violations of fair trial which may amount to crimes against humanity. The records likely also include vital information about the victims of enforced disappearance. According to the Syrian Military Penal Code, records of trials, decisions, and sentences should be sent to Military Public Prosecution which is tasked with handling incoming and outgoing mail between military judicial departments in the governorates. For example, execution reports should be registered and kept at the Public Prosecution.[56] Abolishing Field Courts risks getting rid of their records including death sentences. Therefore, eliminating these records means destroying the information necessary to know the fate of those who were sentenced and executed, including those who were forcibly disappeared. Evidence of crimes includes killing forcibly disappeared people by execution sentences issued by these courts under unfair trials, whose records show the absence of lawyers, and disregard claims of forced confessions under torture and various other violations under the UN Charter. III. Criminalizing Torture and Abolishing Military Field Courts: International Optics for the Syrian Government The Syrian government’s responses to international pressure and demands to end its violations of international law have been consistent for decades: if there is no benefit, enforcement mechanism, or imminent threat to the regime’s hold on power, the Syrian government ignores the pressure and denies any wrongdoing. In some cases, it responds with misleading and meaningless actions, mostly by issuing laws and decrees that do not contribute to ending its violations in practice, as established. Aside from utilising these new laws in its propaganda and destroying highly important evidence of crimes in defiance of the Applicants’ request to not destroy or render inaccessible any evidence related to the Application (including information about mass graves’ locations and death certificates stating the true causes of death), the same responses and strategies are likely to be used at the ICJ in the upcoming proceedings by the Applicants under the UNCAT. For example, in its response to the concerns of the UN Committee against Torture (CAT) over the State of Emergency and widespread use of torture in 2011, the Syrian government denied any routine use of torture and said: With the enactment of Decree No. 161 of 21 April 2011, ending the state of emergency, and Legislative Decree No. 55 of 21 April 2011, there can be no further talk about arbitrary or unlawful detention in any institution.[57] Then, in response to the CAT’s request to reform or abolish the Supreme State Security Court, the Syrian government said: The Supreme State Security Court was abolished by Legislative Decree No. 53 of 21 April 2011. The decree provided for all cases pending before the Court or with the public prosecutor’s office at the Court, to be transferred in their current state to the appropriate competent courts in accordance with the rules and procedures laid down in the Syrian Code of Criminal Procedures.[58] Additionally, on the torture complaints mechanism, Syria provided a table of the number of cases pending before the judiciary relating to allegations of torture, that are almost impossible to verify or deny. On appropriate education for persons involved in the custody, interrogation, or treatment of detainees, Syria said: The course ‘Human Rights and Public Freedoms’ is taught within the Judicial Institute. Many courses have been conducted for judges in the field of combating money laundering and the financing of terrorism, in cooperation with the World Bank and the Anti-Money Laundering and Combating the Financing of Terrorism Authority in the Syrian Arab Republic. Judges also participate in all courses held inside the country and in many courses held outside it within the framework of Human rights and public freedoms. Currently, there are many workshops implemented by the Ministry of the Interior in cooperation with the International Organization for Migration and the Austrian government within the framework of combating trafficking in persons. The ‘Human Rights’ course is taught in law colleges for undergraduate students, and it is also taught to postgraduate students in English and French. This course is also taught in the College of Political Science and many other colleges and institutes.[59] On ensuring that victims of torture obtain redress and adequate compensation: Article 164 of the Civil Code stipulates that: ‘Any mistake that causes harm to others obligates the person who committed it to compensate’, and Article 165 stipulates that: ‘A person shall be responsible for his unlawful acts whenever they are committed by him while he is distinct’. The state is responsible for free treatment for all citizens, including those who have been subjected to torture, whether health or psychological treatment. In 2012, the Syrian government responded by Note Verbale to the CAT’s request to submit a special report on measures taken to ensure that all its obligations under the UNCAT were fully implemented, that Syria would inform the CAT about the measures in its next periodic report (due in 2014) and that Syria considered that Article 19 of the Convention did not provide for the possibility for the CAT to request a special report. It also said that Syria: informed the Secretary-General, the Security Council and the Committee, about the human and material losses that have occurred in the Syrian Arab Republic since the beginning of the events in the State party until 15 March 2012, caused by the ‘actions of armed terrorist groups.[60] IV. How the Syrian government will use the new laws in its legal argument at the ICJ Legal grounds for Canada and the Netherlands’ claims at the ICJ and the new Syrian laws Based on the Syrian government's long-standing strategies of manoeuvre and manipulation, Syria will likely use these two laws as a ‘legal’ weapon at the ICJ to argue that it is fulfilling its obligations under the UNCAT to refute the accusations of the Applicants. Laws criminalizing torture and abolishing the Field Courts would be used to refute seven (a, b, c, d, i, j, k) of the twelve accusations brought by the Applicants in their complaint before the ICJ. As for the remaining five accusations (e, f, g, h, l), Syria will deny them, claiming its financial inability and state of war prevented it from submitting periodic reviews and reports. Syria will deny accusations of state torture and make the same allegations that the Syrian president deployed in an interview with the Swedish newspaper Expressen. The journalist’s question: As you know there are many serious allegations against your government, about human rights abuses committed by your side. How much do you know about torture in your prisons here?[61] The Syrian president’s answer: When you talk about torture we have to differentiate between policy of torture and individual incidents that happen by any individual…With Syria, we never had under any circumstances such a policy. If you have any breach of law, torture, revenge, whatever, it could be an individual incident that the one who committed should be held accountable for.[62] On 7 March 2020, Justice Minister Najm al-Ahmad acknowledged the existence of torture, but echoed Assad’s narrative that torture constitutes an exceptional phenomenon: I do not want to say that the prisons in Syria are five-star prisons in which there is no torture, but all I want to say is that torture constitutes a purely exceptional phenomenon.[63] The Minister, referring to Caesar’s photos,[64] also stated that the government does not allow evidence of torture or killing under torture to exist: Who is that person that we authorize—assuming that a person has been subjected to torture—to photograph this person, whether alive or dead.[65] Accusation (f) would be refuted by the Syrian government by alleging that it has many courses to ensure appropriate education of human rights to its employees. Accusation (h) would be refuted by the Syrian government by providing a table of the number of cases pending before the judiciary in cases relating to allegations of torture, that are almost impossible to verify or deny. Accusation (l) would be refuted by the Syrian government by referring to ‘the actions of armed terrorist groups’, ‘the war’, ‘the economic impact of the war’, and ‘the sanctions’ as reasons that prevented it from fulfilling its obligations to report to the Committee against Torture. V. Conclusion ‘Drowning them in the details’ and pretexts of ‘the actions of armed terrorist groups’, ‘the war’, ‘the economic impact of the war’, and ‘the sanctions’ are often used by the Syrian government to address the international pressures and to justify its various failures and egregious actions, that range from the inability to fulfil specific obligations to committing war crimes. Issuing or abolishing some laws in Syria in response to international pressures and action does not reflect an effective and positive change in the Syrian legal system in either theory or practice. Even if the Syrian government issued new laws or abolished others, it still has its arsenal of laws and courts. This includes the Military Penal Code, the Couter-Terrorism Court and the legalised tools and regulations that allow the authoritarian regime in Syria to continue to target the Syrian people by torturing, killing, and violating the basic principles of fair trials. The government also has its laws to protect perpetrators of torture and other grave crimes, including in its Military Penal Code. It should be clear that the real purpose of issuing such laws has nothing to do with ending human rights violations. The purpose of issuing these recent two laws is to counter accusations at the surface level before the ICJ. Mansour al-Omari Mansour al-Omari is a Syrian human rights defender and legal researcher. He holds an LLM in Transitional Justice and Conflict. Al-Omari works with international and Syrian human rights organisations to hold the perpetrators of international crimes in Syria accountable. In 2012, al-Omari was detained and tortured by the Syrian government for 356 days for documenting its atrocities while working with the Syrian Center for Media and Freedom of Expression as the supervisor of the Detainees Office. [1] ‘UN welcomes move enabling Arab League monitors to visit Syria’ UN News (20 December 2011) < https://news.un.org/en/story/2011/12/398972 > accessed 16 September 2023. [2] ‘المعلم . على العرب ان يتعلموا السباحة ب19-12-2011.flv’ HomeTears (21 April 2012) < https://www.youtube.com/watch?v=9jYm4lxf0cQ&ab_channel=HomeTears > accessed 16 September 2023. [3] UN News (n 1) [4] Anwar Malek, Revolution of a nation; Secrets of the Arab League mission to Syria (Obeikan Publishing 2017). [5] Law No.16, Law No 16, 30 March 2022 (Syria) [6] Syrian Presidency, ‘الرئيس الأسد يصدر القانون رقم /16/ للعام 2022 لتجريم التعذيب، بما يتوافق مع الالتزامات الدستورية للدولة التي تحرم التعذيب، ومع’ < https://twitter.com/Presidency_Sy/status/1509177235793711107?lang=ar-x-fm > accessed 1 October 2023. [7] ‘Torture in Syrian Prisons is Not a Joke’ ( Human Rights Watch , 1 April 2022) < https://www.hrw.org/news/2022/04/01/torture-syrian-prisons-not-joke > accessed 16 September 2023. [8] ibid. [9] ‘Syria: New anti-torture law ‘whitewashes’ decades of human rights violations’ (Amnesty International, 31 March 2022) < https://www.amnesty.org/en/latest/news/2022/03/syria-new-anti-torture-law-whitewashes-decades-of-human-rights-violations/ > accessed 16 September 2023. [10] ‘The Netherlands holds Syria responsible for gross human rights violations’ (Government of the Netherlands) < www.government.nl/latest/news/2020/09/18/the-netherlands-holds-syria-responsible-for-gross-human-rights-violations > accessed 16 September 2023. [11] ‘Minister of Foreign Affairs takes action on Syria’s human rights violations’ (Government of Canada) < www.canada.ca/en/global-affairs/news/2021/03/minister-of-foriegn-affairs-takes-action-on-syrias-human-rights-violations.html > accessed 16 September 2023. [12] Emails from author to Ministries of Foreign Affairs of Canada and the Netherlands (27 June 2022). [13] Email from Global Affairs Canada, Government of Canada to author (14 July 2022). [14] Email from the Dutch Ministry of Foreign Affairs to author (5 July 2022). [15] Canada and the Kingdom of the Netherlands v The Syrian Arab Republic, International Court of Justice, Joint application instituting proceedings concerning a dispute under the convention against torture and other cruel, inhuman or degrading treatment or punishment. [16] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , 10 December 1984, United Nations Treaty Series, Vol. 1465, P. 85 (entered into force 26 June 1987) [Convention against Torture]. [17] Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic) (Pending) (8 June 2023) < https://www.icj-cij.org/sites/default/files/case-related/188/188-20230608-APP-01-00-EN.pdf > accessed 16 September 2023. [18] Convention against Torture, Article 2, states ‘1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture’. [19] Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic) (n 4). [20] Convention against Torture, Article 1 (1), states: For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. [21] Article 1, Law No. 16 of 2022 criminalizing torture (n.d) (Syria). [22] Guide on Article 7 of the European Convention on Human Rights, European Court of Human Rights (31 August 2022) < https://www.echr.coe.int/documents/d/echr/Guide_Art_7_ENG > accessed 16 September 2023. [23] Article 1, Law No. 16 of 2022 criminalizing torture (n.d) (Syria). [24] ‘Syria: Extrajudicial execution of Bassel Khartabil a grim reminder of Syrian prison horrors’ ( Amnesty International ) < www.amnesty.org/en/latest/press-release/2017/08/syria-extrajudicial-execution-of-bassel-khartabil-a-grim-reminder-of-syrian-prison-horrors/ > accessed 29 September 2023. [25] ‘ وثائق رسمية تؤكد إعدام دمشق أربعة معتقلين لبنانيين لم تعترف باحتجازهم’ (الشرق الأوسط | اطلع على أخبار اليوم عبر صحيفة العرب الأولى) < https://aawsat.com/home/article/57366 > accessed 29 September 2023. [26] ‘U.S. Citizen, Believed Executed in Syrian Prison, Heightens Fears for Others’ ( The Wall Street Journal ) < www.wsj.com/articles/u-s-citizen-believed-executed-in-syrian-prison-heightens-fears-for-others-11545153440 > accessed 29 September 2023. [27] ‘Syria: Human slaughterhouse: Mass hangings and extermination at Saydnaya Prison, Syria’ ( Amnesty International 7 February 2017) < https://www.amnesty.org/en/documents/mde24/5415/2017/en/ > accessed 16 September 2023. [28] ‘Victims of Assad's notorious Students' Union speak out – but the UN is not listening’ ( Home | Amnesty International UK ) < www.amnesty.org.uk/blogs/campaigns-blog/victims-assads-notorious-students-union-speak-out-un-not-listening > accessed 29 September 2023. [29] ‘Inside the Syrian Arab Red Crescent’ ( Syria Justice & Accountability Centre , 8 August 2019) < https://syriaaccountability.org/inside-the-syrian-arab-red-crescent/ > accessed 29 September 2023. [30] ‘The Syrian Arab Red Crescent…The Reality of the Organization and its Commitment towards the Seven Principles’ ( Jusoor For Studies )< https://jusoor.co/en/details/the-syrian-arab-red-crescent…the-reality-of-the-organization-and-its-commitment-towards-the-seven-principles > accessed 29 September 2023. [31] ‘مرسوم ربط شركة الطيران العربية السورية بوزارة الدفاع عام 1966 - التاريخ السوري المعاصر’ (التاريخ السوري المعاصر) < https :// syrmh . com /2019/12/05/ ربط - شركة - الطيران - العربية - السورية - بوزا / > accessed 29 September 2023. [32] Constituted by Legislative Decree No. 109 of 17 August 1968, published in the Official Gazette of 1968 No. 38, 12542. [33] Report of the Independent International Commission of Inquiry on the Syrian Arab Republic (11 March 2021, A/HRC/46/55). [34] ibid. [35] (n 7). [36] Translated by Christopher Sultan at ‘A 101 Course in Mideast Dictatorships’ The New York Times (New York, 21 February 2005) < https://www.nytimes.com/2005/02/21/international/europe/a-101-course-in-mideast-dictatorships.html > accessed 3 October 2023. [37] Article 2, Decree No. 32 for 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (Syria). [38] Muhammad Manar Hamijo, ‘Major General Al Homsi to Al Watan: It is part of the reform process that began years ago, and the war may have delayed many steps, but it does not cancel them... President Al–Assad ends the work of the Field Courts and refers their cases to the military judiciary’ Al Watan Newspaper (Damascus, 4 September 2023) < https://alwatan.sy/archives/359480 > accessed 5 September 2023. [39] ‘Out of Sight, Out of Mind: Deaths in Detention in the Syrian Arab Republic’ UN Human Rights Council (3 February 2016, A/HRC/31/CRP.1). [40] Military Penal Code (n.d) (Syria). [41] Decree No. 32 of 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (n.d) (Syria) [42] Article 47, Military Penal Code (n.d) (Syria). [43] Legislative Decree No. 3 of 1970 (n.d) (Syria). [44] الجرائم الواقعة على أمن الدولة (الموسوعة العربية) < https://arab-ency.com.sy/ency/details/2479/7 > accessed 29 September 2023. [45] Article 307, General Penal Code, (n.d) (Syria). [46] Article 309, General Penal Code, (n.d) (Syria). [47] Article 123, Military Penal Code, (n.d) (Syria). [48] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 26. [49] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 160. [50] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 15 (1). [51] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 47 (6). [52] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 51. [53] Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 47 (4). [54]Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 53 and Legislative Decree No. 64 of 2008 on the trial of police officers, customs officers, and political security personnel before the military judiciary (المرسوم التشريعي 64 لعام 2008 المتضمن محاكمة ضباط الشرطة وعناصرها وعناصر الجمارك والأمن السياسي أمام القضاء العسكري). [55] Article 2, Decree No. 32 of 2023 to end the effect of Legislative Decree No. 109 dated 17/8/1968 and its amendments on the establishment of military field courts (n.d) (Syria). [56]Legislative Decree No. 61/1950 Penal Code and Military Procedures (Arabicالمرسوم التشريعي 61 لعام 1950 قانون العقوبات وأصول المحاكمات العسكرية), Art. 92. [57] United Nations, Committee against Torture, Consideration of reports submitted by States parties under article 19 of the Convention Comments and follow–up responses of the Syrian Arab Republic to the concluding observations of the Committee against Torture report of Committee against Torture (6 September 2011, CAT/C/SYR/CO/1/Add.1). [58] ibid. [59] ibid. [60] United Nations, Committee against Torture, Consideration by the Committee against Torture of the implementation of the Convention in the Syrian Arab Republic in the absence of a special report requested pursuant to article 19, paragraph 1, in fine; Concluding observations of the Committee against Torture (29 June 2012, CAT/C/SYR/CO/1/Add.2). [61] Kassem Hamadé, ‘He denies torture – that has been caught on camera’ Expressen (Damascus, 17 April 2015) < https://www.expressen.se/nyheter/mote-med-al-assad/del-2/en/ > accessed 16 September 2023. [62] Ibid. [63] Mansour Omari, ‘al Fatih al–Islami symposium: acknowledging ‘Caesar’ and torture’ Enab Baladi Newspaper (10 March 2020) < https://www.enabbaladi.net/archives/368924 > accessed 16 September 2023. [64] ‘If the Dead Could Speak; Mass Deaths and Torture in Syria’s Detention Facilities’ Human Rights Watch (16 December 2015) < https://www.hrw.org/report/2015/12/16/if-dead-could-speak/mass-deaths-and-torture-syrias-detention-facilities > accessed 16 September 2023. [65] Omari (n 63)