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

Marzia Babakarkhail, a former family law judge in Afghanistan during the 1990s, has dedicated her career to justice. In the wake of the Taliban’s return to power in August 2021, Marzia shifted her focus to championing women’s rights and leading a campaign to support female judges still in Afghanistan, facing imminent danger. Facing threats, frozen accounts, and halted salaries, female judges endured escalating risks under the Taliban’s rule. Marzia, now in the UK, advocates for the evacuation and resettlement of female Afghan judges and their families stranded in Afghanistan or stuck in transit in Pakistan. Despite having faced threats and danger herself, Marzia remains steadfast in her mission, securing tens of thousands of signatures on a Change.org petition. Her unwavering commitment reflects her enduring dedication to the cause of justice and women’s rights in Afghanistan. CJLPA : Welcome, Marzia Babakarkhail. Thank you for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art . You have inspired through your career as a family court judge in Afghanistan. Nowadays, with respect to women’s rights in Afghanistan, you are leading your campaign to support women judges still living in Afghanistan in danger. Today, we would like to concentrate this interview on your story as a female judge forced to leave Afghanistan and lead a campaign to support your colleagues. Can you tell us about your background and your career as a lawyer and judge in Afghanistan? What motivated you to pursue a career in law and justice?   Mazia Babakarkhail : Thank you so much for giving me this opportunity to advocate for the voiceless. In my country, female judges are particularly disadvantaged and at risk. As you mentioned, I am Marzia Babakarkhail Qazi from Afghanistan. I was fortunate to be born into an educated family—my mother was a teacher and a school principal, and my dad was self-employed, a true feminist. My life’s motivation stems from my parents.   From a young age, I aspired to be a judge. We occasionally had open days where we set our goals. I was not very committed to my studies during school, limiting our opportunities. We had private study at home and attended a government school.   One day, while with my dad, we visited my mother’s school. Witnessing my dad, an Afghan man, abruptly jump from the car to greet a woman respectfully was a unique experience. This was Judge Nafisa Shirzad, the first judge in Puli Khumri, renowned and respected in the community. Inspired, I expressed my desire to become a judge. My dad laughed and supported my decision because I was not excelling academically. Working hard and motivated by Judge Nafisa Shirzad, I concentrated on my studies. After finishing high school, I faced an extensive exam called Kankor, which is a mandatory requirement for students who wish to pursue higher education at universities. After passing my exam and getting selected, I enrolled in the Sharia faculty at Kabul University.   After graduating from university, I was employed at the Court as a clerk. Despite witnessing injustices and feeling powerless while working with a high-profile male judge, I persevered.  The rule stated that additional judiciary training would be provided after a certain period of working as a clerk.  I had the opportunity to attend judiciary training at the Supreme Court in Kabul. Upon successful completion of the program returned to Puli Khumri, my hometown, and started working as a judge. This was a significant and fulfilling time in my life, aligning with the future I had envisioned for myself.   CJLPA : You started speaking about the challenges and injustice you faced as a clerk. Would you share some essential experiences and challenges you faced during your tenure in the Afghanistan justice system?   MB : All women judges face challenges. The balance of male and female judges differed during our work with male counterparts. We worked harder than others, but our work, not just mine but collectively as a group, was never as much appreciated as it should have been. We excelled at writing; our statements were perfect for reading cases. We worked diligently, reaching out to women judges across Afghanistan.   The challenges arose when I became a judge. I was already aware that the system was complicated and cold for women. However, the problem became more apparent as a judge because the law binds you, limiting your direct ability to help someone. One day, a pregnant lady came to me, crying. She explained that her husband wanted to divorce her while she had a four-year-old and was pregnant. The husband, a policeman, insisted on an immediate divorce. Witnessing his aggressive behaviour, I felt anger but maintained composure. I had learned patience at a young age.   I was very young and inexperienced in life, to be honest. Sometimes, you cry inside, but you cannot cry in front of people. You are not happy with something, but you keep it inside. You put everything inside. I was in the same situation. I walked out of my room, took a deep breath, returned, and told him, ‘Can you please wait for some time?’ He said, ‘No, I just want it now’. Suddenly, the lady escaped, came to the floor, and started to plead with him.   All that was very heartbreaking for me as a woman. I wanted to resign and said, ‘No, it is just a job; it is not for me because I cannot see women bargaining. In this time, she needs love; she needs somebody to care for her’. She stopped pleading and went to the floor, kissing her husband’s feet. I questioned why this happens to women. Not knowing the person’s situation outside the court, I could not judge her.   When I finished my work and went home, I told my mother about the significant incident at work. I considered avoiding continuing with this job. Sometimes, we do something for status. That time, I realised my naïveté. Sometimes, we are very naïve; we do something to become famous for our status. But it is still humanity inside you that always alarms you—you are wrong and not for this. See, you are not doing well in your life.   I spoke with Judge Nafisa Shirzad, and the lady motivated me. I asked her how she deals with all these things in her life. She said, ‘Learn to deal with problems. If you leave this job, if I leave this job, who can help the woman with a strong word for her?’ I always remember her words, and I respect them. I wrote on paper: ‘If you do not help women, who can?’ That was from Judge Nafisa Shirzad. I walked back to my room and said, ‘No. I will stand with these women. I will not leave this job’. Why should I leave? I worked hard to become a judge. She is right. We are the same human beings. She can deal with it; I can deal with it, too. Of course, she was more experienced than me. I was very young, a judge. I could not compare myself with her, until now.   Divorce at that time in the 1990s was not popular in Afghanistan. If you are not happy, it does not matter, if you do not have even one minute of happiness in your life. Some women from villages outside the city came and married a city man. The problem was that when you divorced, your family could not accept you back, because the village people would judge you: ‘Oh, the younger girl is not good enough because she returns’.   I wondered how could I help the woman, because as a judge I could not do anything. As a human being, I had to do something for her. When I asked my family, I told them we could make a living room for the divorced woman on our farm and keep them there until they find a place or somebody to make a new life for them. My mother agreed, and I told the woman after the divorce, ‘I have someone I know in the family who helps divorced women. This is the address, you can go there’. I remember that time, there was no mobile phone, only a home phone. I gave them our house’s number and address, but I had yet to tell them that it was my house.   Sometimes, the woman came to meet with my mother because my mother was very trustworthy. She was a principal at a school; everybody knew their school, and the divorced woman was sent to the farm on Friday. I told my mother, ‘I want to meet with this divorced woman’. I went to the farm, and I saw her. She was shocked, wondering why the judge followed her. I said ‘no, this is my mother!’   CJLPA : Your involvement in UN-funded programs is noteworthy. How did these collaborations contribute to your efforts to promote human rights and gender equality in Afghanistan?   MB :   As a judge, I established a women’s organisation called the Afgan Women’s Social and Cultural Organisation (AWSCO) in 1994. UNICEF funded the project, which intends to support women, while I worked in Puli Khumri.   CJLPA : Let’s move now to when you fled Afghanistan and moved to the United Kingdom, where you continue your activism. Can you share more about the spirit of the time when you moved? What were the main struggles and primary wins of that time, and what activities and campaigns did you begin to start during this period concerning gender equality and women’s rights?   MB : When I left Afghanistan for the second time in my life, in November 2008, it was because of the Taliban, who tried to kill me in Pakistan. They hit me with a car and I ended up in hospital. Despite never wanting to leave Afghanistan, my mother, considering the dangers, decided it was necessary. Although I had travelled to different countries for training and conferences, I never desired to leave my country, the country I love!   At the age of 45, it was not an ideal time to become an asylum seeker. Leaving one’s country is never a willing choice, especially when one has a good life, a good job, a communication network, and strong connections. When I left, it was a decision forced upon me, particularly by my mother. I came to the UK, applied for asylum, and was granted it swiftly, receiving leave to remain.   Like many others, leaving everything behind was not just a matter of relocation; it was also about the timing. I left at a challenging age, carrying significant trauma from my life in Afghanistan. Upon arriving in the UK, I faced severe depression, refusing even to eat or shower. I found myself in a dreadful state. Once, I went to the hospital for an X-ray of my legs, injured by the Taliban in Afghanistan. During the X-ray, the nurse noticed an unpleasant smell, and I realised it was because I had no motivation for self-care. The nurse, sensing my despair, asked about the language I spoke. Although my English was limited, her compassion and encouragement helped me to start afresh. She told me, ‘This is your life, you can move on in your life’. Returning home, I took a shower and gradually began reconnecting with people, including those at college.   Losing my mother in 2010 intensified my depression as I was not allowed to bid her a last goodbye, a wish many daughters harbour and a pain I still bear.   During my study at Oldham College in 2016, I took the British citizenship exam and delivered my first public speech at Oldham Library in 2015, sharing my life experiences. Encouraged by women’s support, I started helping others through mentoring, contributing to a refugee project, and volunteering with a local MP. I began working as an immigration caseworker, utilising my language skills and personal experiences to assist individuals dealing with immigration issues.   Volunteering with Street Angels and women’s organisations in the UK, I became a trustee for the City of Sanctuary UK organisation. However, I have always focused on finding my passion rather than titles or recognition. If faced with jealousy or judgment, I prefer leaving instead of engaging in unnecessary conflicts.   Amidst my journey, the Taliban came into power in Afghanistan, prompting a plea from my colleague, the former Afghan judge Kamila Noori, now in America, to stand united. We spoke on the phone, and she added me to a WhatsApp group of women judges. This led to the formation of a campaign advocating for the resettlement of women judges. With international support and collaborations, including efforts from my colleagues and speaking in Parliament, the campaign gained momentum.[1] However, challenges persisted as some organisations shockingly rejected funding applications for the judges.   Continuing the campaign, I highlighted the situation of women judges in Afghanistan, seeking action beyond sympathy. Our volunteer network has been instrumental in managing communications, including YouTube and TikTok channels, and ensuring accuracy in my messages to ministers and MPs. Despite challenges, the campaign has achieved engagement with key figures, including Rina Amiri, the US Special Envoy for Afghan Women, Girls, and Human Rights.   As judges like me face numerous challenges in a male-dominated society, the campaign remains a collective effort to stand up for justice and advocate for the rights of women in Afghanistan. There are still around 38 women judges remaining in Afghanistan, and some of them in Pakistan.   The Taliban’s assumption of power marked a distressing period. They released prisoners, including criminals rightfully incarcerated by the judges. It raises questions about accountability: who instigated their release, and who sent these judges, not as adversaries but as upholders of justice, to prison? The predicament extends beyond the Taliban; former prisoners, now aligned with the Taliban, pose a grave threat to my colleagues.   Heart-breaking stories abound, such as a colleague unable to muster the courage to visit her cancer-stricken daughter. The media serves as a platform for me to share these stories, shedding light on the plight of women judges.   The problem is escalating daily, yet policymakers and the global community remain eerily silent. It is a plea for humanity—to extend a helping hand when it’s most needed.   CJLPA : Could you tell the readers what the role of the international community, including the governments and NGOs worldwide, in addressing the urgent needs of Afghan women, specifically judges, and what would be the best actions to help solve the current situation and support them and make them live for the country and live safely?   MB :   Misinformation can be a challenge for our campaign, as it can cloud the information landscape.  I maintain round-the-clock contact with my colleagues. To ensure thorough preparation, we have dedicated groups for interviews, meetings, and decisions.   Judge Sadaf Bunyadi, based in Canada, has been a formidable ally for my campaign and I am thankful to her. Despite leaving Afghanistan, her relentless efforts continue to support our camping immensely.   The activist community has exhibited remarkable humanity and feminism. Their solidarity echoes a collective voice for Afghanistan and women worldwide. In the next phase, we urgently call for tangible action from governments, including the United Nations, the US Department, the UK government, and the German government. Numerous women have applied for resettlement in Germany and Canada, seeking refuge from the dire situation in Afghanistan. We implore these governments to consider the plight of women judges and women in Afghanistan.   CJLPA : Is there anything else you would like to add or any specific calls to action you would like to emphasise to our audience to support your advocacy?   MB : We acknowledge that Afghanistan remains a critical concern, even with the busy schedules of media and policymakers. We are asking for the fulfilment of promises made, not additional favours. I stress the importance of governments taking practical measures.   Additionally, we are grateful for the dedication of the International Association of Women Judges (IAWJ) in assisting Afghan women judges since the Taliban took over Afghanistan in August 2021. Their contributions and efforts will never be forgotten by us.   To sum up, I urge policymakers to take note of our message and provide assistance to Afghan female judges who are stranded in Afghanistan before it is too late.   CJLPA : Thank you very much for this interview. We hope that your voice will be heard by many of the people who will read this article and listen to your interview. This interview was conducted by Angelina Spilnyk, a graduate of the Ivan Franko National University of Lviv, Ukraine, in 2022 with a major in International Public Law. Alongside her position as a Legal Researcher at CJLPA, she is pursuing a Master’s in Maritime Law at the University of Southampton. [1] For more information on Marzia’s campaign, see Marzia Babakarkhail, ‘Afghan Women Judges Trapped in the Country Are Desperately Seeking Sanctuary’ ( PassBlue , 13 June 2023) < https://www.passblue.com/2023/06/13/afghan-women-judges-still-trapped-in-the-country-desperately-need-sanctuary/ > accessed 10 March 2024.

Jay Abdo is a Syrian actor and human rights activist, who has featured in various films and television shows in the Middle East and Hollywood. Jay left Syria due to the numerous threats he received after voicing his stance against the Assad government to the Los Angeles Times on a trip to Beirut. After moving to the United States, he continued to pursue his acting career in Los Angeles, featuring in films like Queen of the Desert and A Hologram for the King .   CJLPA : Welcome Mr. Jay Abdo and thank you for taking the time to speak with us about your story and the necessary topics regarding Syria. You spent most of your life in Syria and you are one of the biggest movie stars in the Middle East. Can you please describe your childhood in Syria before the Civil War?   Jay Abdo : Thank you so much for this opportunity. I am a big fan of The Cambridge Journal of Law, Politics, and Art and I appreciate that you are giving me this opportunity to give people in the West, or let’s say in the free world, more information so they can have a better understanding of where all this chaos is coming from. I was born in 1962 in Damascus, the Old City. My father was from the countryside while my mother was born in the city of Hama to an Albanian father and an Armenian mother. Syria is a mixing pot of many nationalities, and historically, many Albanians and Armenians sought refuge in Syria. Growing up I had a normal Syrian childhood. My father was an Arabic teacher, and in 1967, he was appointed to a position in Golan Heights. When the war started, Hafez al-Assad sold Golan Heights to stay in power—an under the table agreement—and just like that, we had to flee. There was no war, there was no shooting. Golan Heights just was simply given.   CJLPA :   Golan Heights became part of Israel overnight?   JA : Yes, it became Israel overnight and we had to flee rapidly. There was an order on the radio that said the Israeli army had invaded and there were no soldiers to protect us in Al Quneitra, so we left for Damascus to live with my grandparents. That was in 1967 and by 1970, Assad, who was a Minister of Defence, took power through a military coup. I remember asking as a child, ‘Is he a good guy’, and people did not respond because they were in shock. From that day I remember Syria deteriorating.   We were always preparing for war, we were ruled by a mafia regime, and many people were taken to prison. Assad started by imprisoning and killing his inner circle, and from there, Syria adopted a political culture similar to North Korea, praising figures like Kim Il Sung and Stalin. I still remember them saying on the radio, ‘Our allies, the Koreans, the Russians, and the Eastern Germans…’   I grew up within this culture, but when I was five, I joined a music school. My mother always wanted me to become an artist, either playing the guitar, violin, piano, dancing, or anything. I was very lucky to have a well-informed family—a family who read and listened to classical music—and all of this influenced me. Every Friday, I went to the Al-Kindi cinema to watch children’s movies that were from around the world, and it inspired me. I was also taught English before school by my uncle who was a flight attendant with British Airways and the Swedish SAS. He had a very good British accent, and he taught me very well. So, as a child, I was exposed to Western culture through my family, while at school, we were to be more like the Koreans—fighters who were loyal. The school was not interested in your individuality, they were scared of it.   I was a little bit different from my peers. When I went to the village, I was the guy with the European American mentality and it felt as though I was swimming in an environment that was not fit for me. That is until I finished high school and I got a scholarship to go study in Romania.   CJLPA :   I want to touch on you feeling different than everyone else. Similar to you, my mother, who is Syrian, was raised very open-minded and was exposed to things like Michael Jackson’s CDs and Nintendo gaming sets. However, not everyone in Syria gets this. Do you think that before the internet many Syrians were out of date with what was going on in the world?   JA : Financially, it wasn’t easy for a Syrian to travel, but those who could afford to go to the Gulf to make money. Around 75% of people who left Syria went to Saudi Arabia, Abu Dhabi, Dubai, Kuwait, and Jordan to make some money. Around 3% of the Syrian population went to the Western world, which was more inaccessible because we grew up in a country that was under a Russian mandate. Going to the United States, Germany, England, and France was a big challenge, and no one encouraged you to travel there because you couldn’t afford it. Syrians can barely manage to live. It’s an okay financial situation, but not ideal.   CJLPA :   Where would you say your love for films came from? You spoke a little about your exposure to the West and how that impacted you, but were you also influenced by the Arab region? I know Syria and Egypt are major powerhouses of entertainment in the Arab world. Were there any people in the Arab community that you looked up to and how did your career in acting begin?   JA : I did watch some Syrian shows like Ghawar by Duraid Lahham. I watched Nihad Kalai, Muna Wassef, and Hani Al–Romani, all those big names and the founders of the first productions. I was watching with much love and appreciation, but at the same time, I was watching Western cinema. In Syria there used to be Italian cinema week, Swedish cinema week, French cinema week, etc. I did not skip one. At times I was the only one in the audience and they had a very powerful influence on me. I was enjoying the Syrian productions, but I was learning from the Europeans. Now, I pay attention to what I was getting from each one.   CJLPA :   Many young actors, directors, and filmmakers get exploited early in their careers and not many people speak of the exploitation and the problems associated with acting. Did you experience this early in your career?   JA : I studied acting for four years and I was a promising student. Directors and producers would come to our shows because they wanted to pick stars for their productions. When I graduated, we didn’t have agencies and managers to represent us—we represent ourselves. We had to fight, argue, and bargain on our own behalf, and if we got into trouble or someone harassed us, we only had the Union to protect us, and the Union was a police officer. The Artists Union is comprised of police officers ready to report you to the security apparatus. They do not protect you because there are other actors and directors there looking out for their best interest and the police do not want to get fired by the studios or production companies. Moreover, those production companies are owned by the mafia—either the president’s father, brother, or cousin—so you don’t want to pick a fight with them. One of the biggest companies was Sham Production, owned by Abdul Halim Khaddam’s son, the youngest son of Abdul Halim, the Vice President of Hafez al-Assad. Thus, the film industry was about power, and unless you became a powerful name, you faced many challenges.  A major challenge that I and many men faced was that I was underpaid, whereas some women had to provide sexual favours to get roles.   CJLPA : It looks as though, in Syria, actors, athletes or anyone in the public eye is asked by the government to put in a good word for them—make the President look good. I also understand that when the 2011 protests began, you were approached by the government to speak in favour of the state. Can you tell me about the power of state propaganda in Syria and how they usually conscript public figures?   JA : The uprising started in Tunisia and eventually reached Syria, and during this time people started taking to the streets. The regime responded with horrific violence to eliminate any hope and prevent any Western media from coming in. It was the same with Arabic media, like Al Jazeera, or Al Arabiya, where no one was allowed to get in without permission. And in truth, when you start to become famous, the government begins to spoil you with invitations, dinners, celebrations, and awards. Then when you are interviewed on national TV and you are asked your opinion on talk shows, there is a mention about how good our president is, how good our country is, and how well we are doing.  You are getting all this attention from people in power and then a moment comes when you are asked to return the favour.   When the uprising started and the government started killing, arresting, and torturing people, the government started to ask celebrities to appear on TV or join a march. I was asked to join a two-kilometre march where I would walk with photos of the President and positive slogans about our country. Some of these slogans were cursing the international media, Al Jazeera, Al Arabiya, etc. I did not join, and the government knew. Some celebrities joined because, in the past, the government had helped to push their career. Some volunteered because they were given houses, access, and priority, but I was approached three times by people I worked with, and I was scared to death to even sign a petition to bring milk to children.   CJLPA : The start of that civil war that was the beginning of the spread of social media within Syria. Could you please touch on the impact that social media had on the protests?   JA :   Originally, Facebook was banned in Syria, but after a month of mostly peaceful protests, Facebook as a way to show that the government could reform to the people’s needs. It was all over the TV, ‘Facebook is open, Facebook is open’, but in truth, they opened Facebook because they wanted to track activists. The government went on Facebook, saw where activists were located, and arrested them the next morning. It was easy for them. So, I don’t trust this regime at all—if they are doing anything for the people, it is for a mean purpose, never a good one.   CJLPA : This is the first time I have heard this perspective. Most people describe the use of social media in Syria as a tool that motivated the protests, not a tool that the government could use to catch you. Thank you for that perspective. Moreover, you eventually decided to speak out against the government when you were on a trip to Beirut and spoke with the Los Angeles Times . What led you to do this?   JA : Actually, it wasn’t a trip to Beirut, I went to Beirut specifically to meet with her [the LA Times journalist]. It was premeditated and well-organised. When the uprising started, I was always fighting with my wife, who has a big mouth and big heart, and who always wanted me to use my fame and stardom for good. I was always scared, and I told her that this regime is not a joke, but she said, ‘You are a celebrity, and they will count to ten before doing you any harm’.   Before the uprising, my wife applied for two scholarships, the Chevening in England, and the Fulbright in the United States. After the uprising, she had an interview in the US and I was left alone. I felt like I wanted to do something but at the same time, I was so scared—mostly scared to lose my wife. She, however, was very positive that we artists, famous people, and celebrities have to step in and do something. So, this American journalist, Ellen, found me on a website for international actors and she sent me an email saying she was interested in an interview, and I said, ‘This is the time’. I want to prove to myself that I’m not scared. If you hit, you have to hit on the head and address the international media, and I said, ‘Who is better than the Los Angeles Times ?’ So, I said, yes to the interview. Ellen was not allowed in the country, so I drove to Beirut to meet with her, and I was very scared.   Meeting with any American would be a target on your back, and Ellen was doing her best to write the article in a way that didn’t harm me. She was interested in the freedom of speech in the entertainment scripts. When she asked me about the situation on the ground, I got so scared. There was a recorder in front of us and I remember looking at the recorder and not being able to move my lips.  I just signalled for her to turn it off, and once she did, I spoke up. I said everything I wanted.   She wrote the article in a way that didn’t seem like I was criticising the regime, but I was criticising, and my full name was there. Anyhow, I drove back to Damascus and when my wife found out about the article, she said it was very bold, to meet with an American journalist in Beirut to accuse the security apparatus of torture in the country. That’s when the security apparatus started to call me. I got so many phone calls asking that I appear on TV and say sorry to the people, praise Mr. President by name, and give my thanks to the army. The article was a very big step for me. I didn’t march because I was honestly scared to be shot, but I think for a celebrity to give his voice on a platform like the Los Angeles Times was bigger than marching. And I remember asking my wife, ‘Who’s going to read it, it’s in English?’ Everybody read it.   CJLPA : Was it after those continuous phone calls that you decided to head to the United States?   JA : My wife told me I had to disappear for a while and initially I said no, but the government started arresting my friends who were celebrities, so I said, ‘Wow, let me disappear for a while’. I could do this because my wife went to the US to study for a one-year programme, but I did not want to leave because it would be a detriment to my career.  However, other celebrities left ahead of me, either to Lebanon, France, Egypt, or Dubai, and my wife told me that once she graduated, we would go back to a different Syria, with democracy and prosperity. So, I left.   Everything in America was different. In Syria, because I was a star, I was a little bit entitled. I could knock at any door and ask for whatever favour, but in America, nobody knew about me. No one looked at me and that was a huge transition, from being someone to being just a number. Moreover, I was getting bad news every day from our country—this friend got arrested, this friend is missing, this city was bombed, these snipers are killing people—all bad news. I was getting so many death threats on a daily basis, and we figured that there was no more home for us in Syria. So, you find yourself trapped in a beautiful country, but you don’t want to be there. I found myself in a different country, learning things in my 50s that Americans learned when they were 12. I had to look for a job in a new country, which was very difficult. I didn’t know about the food, because in the Middle East, we don’t have mass producers of milk, meat, eggs, etc., and we didn’t know the amount of pesticides, hormones, GMOs, and high fructose corn syrup in foods. I would eat the pizza and immediately I have rashes and acne. I didn’t know how to talk to people or how to introduce myself. All of these new cultural aspects, I had to catch up on. But most of all, I was so scared for my parents. I didn’t want them to be killed, and at that time it was easy for the regime to kill anyone in Syria. They had no remorse.   CJLPA : You were talking about getting a job was difficult for you in the beginning. Now that you have worked with Nicole Kidman on Queen of the Desert  and with Tom Hanks in A Hologram for the King , can you tell me what the differences are between Syrian cinema and American cinema? How did you adapt and begin to adopt American cinema?   JA : There is a big difference between the script in Syria and the script in the US. First, in the US, you are addressing the whole world and there is more freedom to speak about any subject. We have restrictions and red lines in the Syrian scripts. We can’t talk about religion, the army, politics, or sex. Second, in the US, you have a manager, you have a union to protect you, and there are laws that protect everyone working in the field. Third, almost everyone working on set, especially the crew, is an academic. This cameraman has studied filming, that art designer is an academic, but in Syria, we struggled to find people who could operate a camera. Fourth, everything in a US production is organised and prepared ahead of time—safety is a must. We don’t have safety in the Syrian productions. And finally, you are paid well in the US. Your grants are there, your rights are protected, and there is someone to negotiate for you. When you get on set, you can relax.   CJLPA : Speaking of American cinema, what do you think about the current writers' strikes?   JA :  It is very unfair what they’re paying writers because they are the creators. Some writers are paid $700 for an episode, that’s it. It’s disgusting. The big studios make billions every year, and some CEOs have a $25 million salary. Writers are spending 12 hours on set, so pay them! Like we say in Arabic, ‘From the whole camel, we are asking for the ear’.   CJLPA : In your opinion, where did the revolution go wrong? It does not look like Bashar al-Assad is going to be leaving anytime soon and it does not look like the revolution unionised the way it should have for it to have been successful. Where do you think we went wrong?   JA : There are so many different reasons. When the revolution first started and people took to the streets, walking peacefully as they asked for universal human rights, the regime responded with horrific violence. So many officers and soldiers started to defect because when they were asked to shoot at protesters, they could not do it. They started taking the side of the rebels, and that is when the money started pouring in from the Gulf countries because they wanted to support those people who defected. Their support, however, was not for free. They had a religious agenda. Moreover, after the Iraq War, those who returned were imprisoned inside Sednaya and other prisons, and they created Islamic extremist groups. Five months after our uprising, many of the imprisoned were released and they started forming religious groups that dominated our revolution. That is where our revolution went wrong. The aid was going to the extremists, not to the moderates. The moderates had to flee to Turkey, Jordan, or Lebanon.   There is a very good and important documentary that was made about all this called, Hell on Earth, the Fall of Syria, and the Rise of ISIS.  It answers so many questions, especially for Western countries, and I recommend it to everyone.   CJLPA :  Can you please touch a bit more on how the government manufactures their image to make it seem as though they are fighting terrorism when in reality, they are probably manufacturing it?   JA : Extremism was created by the Gulf countries, by the leaders of those countries. They use it as a scarecrow to say, ‘Look at us, we are legit because we are fighting the extremism that you are afraid of’, but they created the extremism. They just don’t say that out loud. It is a filthy game because they are always saying, ‘We are fighting extremism’, but it is the regime that created it, and people make excuses because Bashar al-Assad went to London to study and his wife is British—he does not look like a tyrant. But he is, and what I need people to know is that the monster is our regime—the mafia in our regime. This is the real monster that keeps refugees and displaced people afraid of returning to Syria. Millions want to go back, but they can’t with Assad being there.   CJLPA : This war has resulted in a large Syrian diaspora. What is your advice to the younger generation of Syrians who have grown up in the war, grown up having to escape the war, or have even grown up never seeing Syria but wanting to see it? How do you speak about the future for young Syrians and how they can make a change in their country?   JA : Don’t give up. It’s hard for all of us. It’s very hard, but never give up. Study, read, work, don’t relax. It is time for work. We are in a disaster mode and it’s time to work. I wake up every morning at four am because I have projects to work on. Work, study, read and learn from those countries you are in. Exchange. Tell them about your life, about your country, what is beautiful in our culture, and learn from their cultures. Build bridges within the countries you live in. Don’t be scared. This is how we fight back.   We have to be prepared for the day when we can go back to our country. So, get up. No time for depression, no time for complaining. It’s time for work, for study and for more knowledge. We have to beat them with knowledge, music, and art. This is my message. I wish I could help every human being in the diaspora and inspire them. I was depressed, my wife was depressed, and we both suffered a lot, but we helped each other. We inspired each other and we stood for each other. Nowadays, I say that if you have a love in your life, fight for it. This is what keeps us alive, strong, and resistant.   CJLPA : Thank you, those are beautiful words. It was a great interview that touched on various subjects, and it was wonderful having you.   JA :   Thank you, so much, and best wishes to everyone working with you on this Journal . We are very proud of it. This interview was conducted by Nour Kachi, Legal Researcher CJLPA: The Human Agenda. In addition to his role at CJLPA, Nour is currently working on qualifying as a lawyer in the US and UK.

Issa Amro is a Palestinian human rights defender who has lived in Hebron (West Bank) since his birth. For over two decades, he has been advocating for Palestinian rights, with his unwavering dedication earning him international recognition by the European Union, the United Nations, Amnesty International, and US Senator Bernie Sanders. He founded Youth Against Settlements, an organisation advocating for resisting the occupation through peaceful means and through empowering the Palestinian community. Issa is also involved in several other non-violent movements, such as the Hebron branch of the International Solidarity Movement (ISM), the Arab Non-Violence Network, and the Hebron Defenders. He is involved in monitoring the application of international human rights and humanitarian law in the Occupied Palestinian Territories. CJLPA : Good morning, Mr Issa Amro. On behalf of The Cambridge Journal of Law, Politics, and Art , we would like to thank you for your time today to provide valuable insight on your experience as one of Palestine’s most highly prominent activists. You were named Human Rights Defender of the Year by the Office of the High Commissioner for Human Rights and the European Union. Your work has made a real meaningful impact on the decades-long Israel-Palestine situation, and we look forward to further learning about it in order to engage the wider international community and fight against the ongoing human rights violations. We would like to begin by asking how your early years such as your childhood or your teenage years in Hebron have inspired you to choose the activist path? Issa Amro : I am happy to contribute and thank you very much for interviewing me. I hope that this interview will enrich people’s awareness and knowledge about the reality of the situation on the ground. I am a Palestinian who was born in Hebron City. I was born very close to an Israeli illegal settlement in the old city of Hebron. I suffered from the presence of the settlers, and I suffered from the presence of the Israeli soldiers. A main memory for me was the Ibrahimi Mosque Massacre, which happened in 1994, when Baruch Goldstein, an Israeli retired army doctor, broke into the Ibrahimi Mosque and killed 29 Palestinian worshippers in the early morning who were praying. That was the main shock for me—to see that someone can just kill innocent people in the mosque. The consequences of the massacre affected me. I did not attend school for four months. It was really difficult for me as a child, that time. We lost one student who played football with us every morning at school. The streets were closed, segregated, and shops were closed. So, we were the victims of the Ibrahimi Mosque massacre, and we were punished under the hands of the Israeli military operation because we are ‘weak’ and they are the main power. Nonetheless, I continued my education at high school, then I graduated from high school, and I went to university to study engineering. My dream was to become an engineering professor. I was doing very well in school and at my university, and I continued to pursue academic achievement to fulfil my dream to become a professor. Unfortunately, in the last year of my degree, Bachelor’s Degree, the Israeli military closed my university. I went to the university in the morning, I found the campus sealed, the doors were welded by the Israeli military and the porter paper said that the university is closed indefinitely, without giving any explanation. I became very disappointed, very angry. I wanted to get my degree by any means. It was about education for me, not about occupation. So, I went home, broken, disappointed, and very angry. I searched ‘how to create a revolution’ on Yahoo’s search engine. I wanted to create a revolution. Luckily, I firstly came across Martin Luther King, involved in the civil rights movement in the United States, Gandhi, and the anti-apartheid movement in South Africa. I studied these non-violence campaigns and I started a campaign with other students to reopen the university to get our degree. It was about education, because Palestinians on the daily, all over Palestine, fight to get to their schools, fight to get to their universities. We believe that education will empower us to make us stronger, to resist the Israeli occupation and to be able to keep our identity and keep our steadfastness as Palestinians who are living under Israeli military, apartheid, and oppression. And from that point, I graduated from the university as an engineer, but also as an activist. From there, I started campaigning, creating non-violent committees, organisations, movements, up to the point where I am now. CJLPA : We are inspired to hear that through your passion, you wanted to emphasise the importance of education. You have lived in Palestine all your life and your work is in the heart of the occupied city of Hebron. How would you say the situation has changed since you started your career? IA : I started my activism 20 years ago, and as time passes, it is getting much worse. There is a war against our rights as Palestinians. We live under Israeli military law without any basic rights. Imagine that non-violent resistance, according to the Israeli military law, is not allowed, and it is illegal. Personally, I was indicted, and I was convicted in the military court, arrested for practicing non-violent resistance. By the Israeli military law, we are guilty until we are proven innocent. It is the opposite of the civilian law. So, whenever I am arrested without evidence held against me, I have to prove to the judge, to the court, that I am innocent. This can be really difficult. So, it is not easy to see that in my 20 years as an activist, to control Palestinians, there are more checkpoints, more restrictions, advanced technology to track them, spy on them, to violate our privacy, and to intimidate us. I feel and see that every day, we face further challenges. Their policy is that they do not evict you directly from your home, but they make it impossible for you to remain in your home. How do they make it impossible for you to remain in your home? By making you not feel safe. At any given point, I know that the settlers and soldiers may break into my home and arrest me, attack me, or shoot me. I do not feel safe in my house now. I do not have access to any protection. I am afraid for my safety, I am afraid for my neighbours’ safety, and I am afraid for my friends’ safety. We live in fear all the time. Secondly, there are no services—electricity, plumbing, or even ambulance services! If I were to require access to an ambulance now, I would need coordination for the ambulance to come in and assist me. So, you skip all the emergency cases, the doctors because there are no services at all. From checkpoint to checkpoint. Thirdly, there is no social life. Part of our culture is the social life. How is it that there is no social life? Public events are not allowed. Visitors from outside the area are not allowed. We have 22 checkpoints within less than one square kilometre. It is up to the soldiers to decide who gets into the area. Imagine that the soldiers decide if you may bring friends into your home or not. The soldiers decide if you may throw a birthday party or not. So, there is no social life, there are no services, and there is no safety. This is the situation. And it is getting much worse. There are more restrictions. There is more ‘blue and white’, they call it. They are building more and more settlements; they are closing more and more streets, they are closing the markets, etc. They are working to displace the Palestinians and to make them lose their homes, they make them not think about freedom. Instead, they keep us busy struggling for basic rights, in order for us not to call for freedom. We do not ask for equality. We do not ask for justice. Freedom is a dream for us. Justice is a dream for us. Equality is a dream for us. But we do not have any of that. CJLPA : I was particularly interested to hear that the Israeli authorities track Palestinians, and I have not heard of this before. So how does that work? Do they just track where Palestinians are going or what kind of technology is being used? IA : The whole world is utilising artificial intelligence to make human being lives’ easier, but unfortunately, in Israel, the Israeli occupation is using artificial intelligence and advanced CCTV cameras with facial recognition, eye recognition, and body recognition in order to track and spy on Palestinians. I have no privacy. They know everything about my life. This interview, it is recorded by the Israeli authorities. When I talk to my friends, it is recorded. They track us on social media on our daily lives on social media—they know who gets into my house, who comes to visit me, what is going on around me, my location wherever I go. They then create a profile of me holding information without my consent – they have all my history of activism, my personal status, my personal needs, they have it on their profile without my consent. I cannot say ‘no, do not do such research on me’. They use two types of technologies now. One is called Blue Wolf. Blue Wolf is a mobile application whereby Israeli soldiers approaching you with a phone and taking a photograph of your face, can access all the information about you. Imagine, 19 or 20 year old soldiers, with a military system that provides them the ample space to act according to their ideology, come to you and know that you are a human rights defender and you are against the occupation, even if it was in the form of peaceful resistance. This happened to me a few times this year. I was detained and ill-treated by the Israeli soldiers because they dealt with me as per their ideology. Additionally, settlers may access this app as well, because there is no difference between Israeli settlers and Israeli soldiers. The other application is Red Wolf. For the Red Wolf app, the Israeli military have installed CCTV cameras everywhere. In my house, from one direction, there are three CCTV cameras. From the other direction, there are two more. So, the families feel monitored inside their homes. The women in our community, when they are in their homes—considering that it is a conservative culture—they do not want others to be able to see them, especially a stranger being able to see their hair and their body. They close the curtains when they are in their homes. Some women have asked me, ‘Issa, can these cameras see us inside our bedrooms?’ That is the fear, that intimidation, so this is the technology that they use. The Red Wolf is to do with CCTV cameras and computers in order to track Palestinians. However, a very important point is that these cameras are not used to track Israeli settler violence. So, whenever the Israeli settlers attack us, attack our homes, they do not use their footage to prove that settlers attack Palestinians. It is only used against Palestinians. And we do not know what they do with it. Perhaps, they do medical research, or other kinds of research into our bodies or behaviour in order to then sell this data to big companies. There is Smart Shooter at the main checkpoint— a private company from Tel Aviv. They came to install the security Smart Shooter in Hebron by the checkpoint: first, to intimidate me and then to be used us as a simulation object. They do simulations on us for their technology. So, they are misusing the artificial intelligence against the Palestinians to withhold our right to privacy and our right to live equally without fear. CJLPA : It is shocking to see that such basic rights to privacy can be violated, leaving Palestinians live in this state of paranoia. With regards to the settlements, how does the process work with regards to the expanding illegal settlements over time? IA : Unfortunately, Israel is building more and more settlements every day and building infrastructure for these settlements all over West Bank, East Jerusalem, and Hebron—bypass roads, industrial zones, agricultural zones. On the one hand, they fight the Palestinian presence through the idea of not evicting Palestinians directly, but by making it impossible for them to stay—by cutting off water, electricity, etc. On the other hand, they encourage Israeli settlers to build commercial centres, educational centres, universities, bypass roads and infrastructure to annex the West Bank without the Palestinians. High Israeli officials say ‘we should remove that city’ or, ‘we should remove and burn that community’. There are many Palestinian communities now in areas where they are facing eviction and the lack of water. The Israeli army just last week put cement in water wells in order to cut off Palestinians’ access to drinking water. Imagine that in some areas the agriculture is restricted, because they don't want us to have any infrastructure for basic rights in certain areas. This is happening in H2 in Hebron, in East Jerusalem, and in Area C, in general, in Palestine, to displace the Palestinians. And the over-turning of the Israeli judicial system is a tool to legitimise and to get legal approval for all their actions against the Palestinians because we are the ‘weakest’ group in this situation, it is not easy for us at all. We are fighting for our existence; we are fighting for basic rights. We do not talk about more than basic rights these days. But, even with basic rights, we do not have access and our existence is in danger. There are hundreds of new settlements every month; thousands this year, which is the highest it has been in a long time. Settler violence is the worst it has been in the last, maybe, 20 years, and without any accountability. Something that is very important about settler violence: they steal your property, they attack your house, they attack you physically, and all without any kind of accountability, with full impunity. There are organised programmes against Palestinians by Israeli settlers’ militia, and they are now getting more guns, more weapons from the Israeli government. I see settlers in the neighbourhood here, they never have machine guns, automatic machine guns or semi-automatic machine guns. That is an indicator that we are facing a very dark future and that maybe, we are facing massacres in certain areas to force the Palestinians to leave so to take over their land. I can see that what happened 75 years ago at the time of the Palestinian Nakba, it will be repeated if we do not stop these current extremists who now are the government as well. What the Israeli army cannot do legally, the Israeli settlers’ militia do it by themselves with the protection and escort from the Israeli military, the Israeli government, and the Israeli media. I was attacked last February by an Israeli soldier when I was working with a famous American writer. And I was attacked. I was the victim of that soldier. Meanwhile, the Israeli military accused me of being in an illegal area. The army and the Israeli army spokesperson said that I am the problem. Then, the Israeli media accused me of being a provocateur, and said that I deserve what happened to me. The Israeli National Security Minister also tweeted that I deserve what happened to me and that the soldier should be backed up. So, the Israeli government did nothing to make this soldier accountable, and the Israeli public treated the soldier as a hero. This is a small example of the atmosphere of the Israeli soldiers’ and settlers’ violence. CJLPA : It is truly unbelievable to hear about the type of propaganda that is being spread and the support for these violations. With regards to other activists in Hebron, is it also common for them to be attacked by or harassed by the authorities? IA : I am not an extraordinary human rights defender. I am a Palestinian and the majority of Palestinians face harassment and ill-treatment from the Israeli military, the Israeli government, and the Israeli settlers. So, it is a phenomenon—using this level of oppression against Palestinian women, Palestinian children, and Palestinian human beings, this is a phenomenon. If you are a human rights defender, or a journalist, you are further targeted because they want to silence the voices of those who are trying to expose the Israeli oppression, the Israeli occupation, and the Israeli apartheid. So, we became the target as a means to silence our voices. For example, Shareen Abu Akhleh was assassinated. She was a famous Palestinian journalist who was assassinated by the Israeli military. She was shot, killed, and the killing was confirmed by the Israeli army, without any accountability for who killed her. So, it's a common phenomenon to target journalists and human rights defenders, so as to not allow us to tell the story of what is going on the ground. Mainly, what's happening to me is because I tell the truth, because I document the truth, because I give a first-hand testimony to the international community about what Israel is doing. When we say Israel is not defending itself, it is because Israel is defending its occupation, its apartheid and its settlements. When we say that Israel is not a democracy, it is because I live under the Israeli military law without any basic rights while Israeli settlers live under the Israeli civilian law. So, when there are two sets of law, for different people, we say it is an apartheid, it is not a democracy. It is a democracy for its own people. I do not choose or vote for the authorities who are controlling me. Israel does not want that. Israel wants to play the western country, which respects human rights, which respects democracy, but that is not the truth, it is fake. It is so obvious that it is fake when I tell my story as a Palestinian human rights defender who believes in non-violent resistance as the best method to obtain our rights. This is about our rights as Palestinians who are calling for freedom, justice, and equality. Israelis do not want that—they are not ready to give us our rights or to be equal with them. They do not want us to hold them accountable for their violations of international law and for their violations of our basic rights. CJLPA : It is almost as if Palestinians and Israelis live in completely two different countries, despite living on same land. Can you please share some details of how Palestinians are attacked, tortured, and killed specifically by those authorities? IA : If you are passing a checkpoint or in a certain area, you may be shot and killed. Or you may be arrested. I was arrested many times without any reason. They detain me between four to eight days in a military detention centre without me seeing a charge. This has happened to me many times and to many other Palestinians. There are now 1,000 Palestinian prisoners in ‘administrative detention’, also known for us as jail. You do not know why. Your lawyer does not know why. The judge sometimes does not know why. Imagine that there are 1,000 Palestinians—among them children and women—in administrative detention, without trial where they may intimidate you and beat you. That is against international law. They can also make your day really hard and impossible to get through: they can close the streets, close the cities, or impose collective punishment. It is truly not easy for us. A further very important note is that we feel the supremacy of the Israeli soldiers over us. The way they treat us—they dehumanise us at the checkpoints by treating us less than they would treat animals. They see us as suspect and treat us like extremists all the time, despite the fact that we all are civilians and it is the soldiers who are the extremists violating international law. And they are the violence machine. This is the worst feeling for me, that they dehumanise me. Imagine at the checkpoint, there is the layer of advanced security artificial intelligence, and there is another human layer to provoke you, to dehumanise you, and to really intimidate you. In winter, they force you to take off your shoes on muddy ground. When it is very sunny, they close a checkpoint and make you wait. They say bad things to you, they harass the women when they pass the checkpoint, without any accountability and without any kind of mechanism to address complaints, or even to bring awareness of what is happening to us. It is not reported on in mainstream media, and our content is highly restricted on social media these days. So, we escaped from the mainstream, biased media to the social media. They followed us to the companies, to the social media companies, to restrict our content. Imagine that I posted Shireen Abu Akleh’s photo on social media and my account was then restricted. Shireen Abu Akleh was an American, Christian and a very famous journalist, assassinated by the Israeli military and almost everybody around the world showed sympathy with what happened to her. I posted Shireen Abu Akleh’s photo on social media and social media deleted my post and restricted my account for posting her photo. This is the life we live under as Palestinians. CJLPA : The international community is beyond disheartened with the attack on the Jenine refugee camp last month. Do you have comments on the situation and how Palestinian refugees are affected by such attacks? IA : When the international community talks about Jenine, they forget that those camps were created 75 years ago, that those people who are living there were evicted from their cities, from their communities, and from their properties. They are refugees, and they are the victims of Israel. They are the victims of the international community’s double standards. How is it that for so long, for 70 years, those people are unable to travel a few kilometres back to their homes, to their villages, and to their land? And for 75 years, these camps have been in a very bad condition. They do not have well-built roads, they do not have sewage systems, they do not have enough water, they do not have enough electricity. It is so tense to live there—the density of people is so high, it is house to house, and they spent all their money to build small houses to live there with basic rights. Then, the Israeli bulldozers, the Israeli advanced army, go in, destroy everything, and kill nearly anybody who was in their way. A Palestinian was merely running, and he was killed. A young girl was filming Israeli soldiers raid the camp, she was also killed. We say the Palestinian Nakba is continuous, it is being repeated every day. It is not easy to describe the situation in the camp. You are a refugee, and the Israelis are working to make you a refugee again. It is not acceptable whatsoever that those refugees are targeted by the same offenders who made them refugees in the first place and that the international community blames the refugees for what is happening to them. The international community is not holding Israel accountable for its violence, for its occupation, for its apartheid and for its eviction of the Palestinians 75 years ago. CJLPA : Moving on to your organisation, Youth Against Settlements, which works to strengthen the community of Hebron against the illegal expansion of settlements and to document human rights violations. What are some memorable achievements of your organisation and other organisations you are involved in, such as the human rights solidarity movement, or Non-violence Network and Hebron defenders? Additionally, what are the challenges faced by such organisations? IA : Our centre was raided many times by Israeli soldiers and settlers. The soldiers confiscated all our belongings a few times, while the Israeli settlers attacked our centre and destroyed our property, such as the water pipes, fences, etc and stole our CCTV cameras. We are under continuous pressure. The organisation has different focuses. Firstly, we conduct direct action through rallies in order to increase awareness about what is happening. We document the human rights violations that occur and also train families to document such violations using video cameras. We also undertake legal work and organise a lot of campaigns, such as the Open Shuhadah campaign. To bring back Palestinian families to the community, we work to help them feel more safe by making patrols on the streets, walking the children to the school, or teaching women to speak English and Hebrew. Another very important point is to keep our narrative alive, to protect the identity of the Palestinians. It is Free Palestine. The Palestinian flag is everywhere here, even in the middle of an area which is targeted by the Israeli occupation. So, we do not say that we are merely victims, but we are fighters using non-violent resistance to make the occupation costly and this is my message to everybody. Make fighting the occupation part of your daily routine. Think and be creative as to how the occupation can be made costly to the media and the economy. And a very important work is to level up Palestinian voices by boosting Palestinian culture, education, sports, economy. This is very important to do—along with making Israel accountable for its occupation and apartheid and telling the truth to the world. I would like for the international community and the international people to act according to their principles, according to their morals. This is something very important because it is about equality. It is about justice. It is about freedom. How can we live as slaves in our own communities, without basic rights? Do the international people accept to live as slaves in their own land, in their own homes, without security, without social life and without any form of services? We are not asking for much, we are asking for equality, justice, and freedom as Palestinians. We practice non-violent resistance on the ground to act and we have many achievements. The house I live in was a military base, and I took the soldiers out of it. We established a kindergarten, we established a women's centre, we are now establishing a cinema public space, to show that the land is Palestinian it. It is Palestinians’ land, but we really want to affirm it and still stand strong in front of the soldiers and the settlers without fear and without giving up. We do not want to give up our rights and in no way do we want to become refugees again. This is what we tell the families—we pick them up, we stay with them, we support them, and we will continue to do so in spite of the challenges we face. Challenges such as violence, smear campaigns, the false rumours about us, the propaganda, and the attack our social media. We struggle for donations to survive as activists, and we do our best to fundraise, but it is not easy. It's almost impossible with the attacks and the restrictions imposed on us. CJLPA : We truly commend your efforts through your organisation. In addition to bringing awareness to the violations, you empower the community and foster a mindset of resilience, despite the struggles. We are aware that Open Shuhadah Street project is a big project part of the Youth Against settlement. We wanted to know more about this and what does Shuhadah Street mean for the Palestinians? Why is it so significant? IA : Shuhadah Street is the main street in Hebron, similar to Oxford Street in London and Times Square in New York. It is the main street, the historical area, it has the most markets, the symmetry, so it is really the main street of the city. So, we chose the campaign, Open Shuhadah Street campaign, to increase awareness as to how is it that we are segregated in our own streets. How is it that I am not allowed to walk in my own street because of the Ibrahimi Mosque massacre in 1994? How is it that we were the victims of the Israeli terrorists who went into the mosque and killed 29 Palestinians, and we were the ones punished, even though we were the victims? Open Shuhadah Street campaign means no to the occupation, no to the Israeli apartheid, no to the Israeli segregation. Palestinians are bringing awareness to the situation, by fighting and resisting peacefully and commemorating the Palestinian massacres. We will not forget and we will not forgive, until we get our rights, until we make Israel accountable for its occupation and apartheid, according to international standards. It is a symbolic campaign to inform the international community about who the Palestinians are. I want the world to understand that we are human beings and that we have our own characters, our own education, our own culture, our own habits. This is part of what we do to show the human side of Palestinians and that we are just like any other nation. We want to be treated as a nation who has freedom and justice. We don't want to be treated as animals who are seeking shelter. CJLPA : We want to touch on the point you said earlier about the administrative detention. You said that sometimes, the soldiers, the lawyers, the judges are not even aware of the reason a detainee is in detention. So, in that case, what happens to these people in detention? How long are they kept for and what is the procedure, or challenges in this procedure? IA : They come to your house, they arrest you, they tell you that you are under administrative detention. That is the end. You will be in jail until they decide when you may leave—it could be four months, six months, one year, two years, or ten years. This is administrative detention. When you go to court, the judge does not open the file, there is no trial, and your lawyer does not know why. This is the reality—only Israeli intelligence decides how long you stay. And a further very important point is that your family does not know the end of it, does not know what you are charged for, and will be continuously waiting for you. CJLPA : With regards to children, what are the prison conditions like for children and other Palestinians? IA : The worst experience for me when I was arrested was to be arrested with children. I was arrested one time, and I found children in the detention centre handcuffed, blindfolded, intimidated, and harassed, left without water or being able to go to the restroom. They were crying, they were ten or eleven-year-old children. My heart was broken, how were they able to treat them this way? How could they make them confess to throwing stones when they did not do so? How can they refuse to give them their legal rights, intimidate them, try to destroy their dignity, as young children? The children are a target for the Israeli military, they try to make people afraid for their children. They target the community by targeting the children. My child, two weeks ago, was detained at the checkpoint to target me. My neighbour's children were also arrested to intimidate me as a human rights defender, thinking they were my children. When I went to the soldier, I told him they are not my children, they are my neighbour’s, but they were kept for two hours, detained and beaten by Israeli soldiers. CJLPA : This is all very valuable information to know, and it is important that the wider international community be aware. Before bringing the interview to an end, what do you think the international community can do in order to place pressure and to make Israeli authorities accountable for their violations? IA : I want the international community to see Palestinians as a nation who deserve full equal rights, not just to try and give us shelter. We do not want shelter, we want to be treated as a nation, as every nation on earth, which is very important. On the other hand, to do everything possible to make the Israeli occupation and apartheid costly— to use Parliaments, to not import Israeli settlement products, to use the media to further increase awareness, to support Palestinians economically and politically, to make Israel accountable before the International Criminal Court. and to use all the international mechanisms available to make Israel accountable. Without making the occupation costly, nothing will change. Without doing concrete actions, nothing will change. I want them to understand the Palestinians’ need freedom, justice, and equality. I plead with the world to support the Palestinians by supporting their economy, education, and voices, fostering friendships with Palestinians, being more engaged with pro-Palestinian organisations, pro-Palestinian groups, and to not fall for the trap of the fake anti-Semitism accusations because Israel is politicising the term anti-Semitism. We, Palestinians, are against all kinds of racism and support all kinds of free speech. Anti-Semitism is not part of our cause, neither is islamophobia, homophobia, or any other discrimination. We, Palestinians, believe that all human beings are equal and deserve full equal rights. This is what we want we will continue to fight for the name of our rights and for everybody's rights. CJLPA : Definitely, as you mentioned, it is very important for the wider community to bring awareness and hear the voices of the Palestinian people and use all the international mechanisms available and work with all types of organisations. Mr Amro, thank you very much for your time today, it has been an absolute pleasure speaking with you. We thank you once again, for allowing us to obtain valuable insights from the brave work that you and your organisation do. And we wish you all the best with your endeavours to create a better future for your people. And we hope to see that the occupation comes to an end at some point. IA : Yes, I agree that the occupation will end. I am very optimistic, and we are almost there, but we need to work harder. This interview was conducted by Shahad Alkamas, who graduated in 2021 from Middlesex University and obtained her LPC the following year at the University of Law. In addition to her Legal Researcher role at CJLPA, Shahad is currently working as an in-house litigation paralegal, with previous experience in various legal fields such as personal injury, immigration, and civil litigation.

Andrew Clapham is Professor of International Law at the Geneva Graduate Institute, which he joined in 1997. He was the first Director of the Geneva Academy of International Humanitarian Law and Human Rights (2006 - 2014). Andrew Clapham teaches international law, human rights law, and the laws of war. He recently served as a member of the UN Commission on Human Rights in South Sudan (2017-2023). In 2003 he was an Adviser on International Humanitarian Law to Sergio Vieira de Mello, Special Representative of the UN Secretary-General in Iraq. His publications include: Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations (7th edition) (Oxford University Press, 2012), Oxford Handbook of International Law in Armed Conflict, co-edited with Paola Gaeta (Oxford University Press, 2014), and he is co-editor with Paola Gaeta and Marco Sassòli of The 1949 Geneva Conventions: A Commentary (Oxford University Press, 2015). His latest book is entitled War (Oxford University Press, 2021). CJLPA : Good morning Professor Clapham. I would like to thank you on behalf of The Cambridge Journal of Law, Politics, and Art , for joining us this morning to discuss the valuable insights of your work in international law, human rights, and humanitarian law. Your career spans decades with experience as Amnesty International representative at the UN, advisor to the Special Representative of the UN Secretary General in Iraq, member of the UN Commission on Human Rights in South Sudan, and more. You were also the first director of the Geneva Academy of International Humanitarian Law and Human Rights (from 2006-2014), and a well published Professor of international law at the Geneva Graduate Institute, with your most recent book titled War , released in 2021. We would like to start by asking how your diverse experiences as practitioner, academic scholar and author have been informing your thoughts and your work, and maybe briefly, what your focus has been recently as well? Professor Andrew Clapham : Well, thank you very much for having me. I suppose it's difficult to be working in this area without thinking about the war in Ukraine. Obviously, there are multiple legal developments related to that conflict. I don't pretend to be on top of all of them, but if you ask me what I'm thinking about, it's a lot of the issues connected to that conflict, but partly because they haven't come up before in recent times—for example, issues of neutrality, funding, and supplying arms to either side of the conflict, the questions of naval warfare, interference with ships, search of ships, that hasn't come up before, at least not in recent times. And so those are some of the issues, and I know we're going to talk about war crimes later. And then the second thing that I'm thinking about at the moment, if you're asking, is the prosecution in Stockholm, Sweden, for complicity in war crimes of the former chief executive and former chairman of the board of the oil company Lundin, for their activity in Sudan (as it then was) in the sector where Lundin was doing oil exploration. That also is a groundbreaking prosecution and I'm trying to follow it as best I can. It only started a few days ago but it's going to run for two years, so I'm trying to get my head around that as well. CJLPA : There are so many avenues to consider with regards to these very complex conflicts. Beyond international mechanisms, do you think Ukraine is currently equipped to prosecute such war crimes? And what are the main challenges Ukraine would face in prosecuting these war crimes? AC : Ukraine has a criminal code that arguably covers most of the relevant war crimes. The main difficulty, I think, is not necessarily in the legislation or even the existence of courts, but in actually capturing people who could be prosecuted. Obviously, they have captured prisoners of war, but some of those have had to be exchanged for Ukrainian prisoners on the Russian side. So even historically, looking at some of the prosecutions that there have been, even after conviction—if I've understood correctly—those prisoners have been swapped for people held by the Russians on the other side. So, in trying to prosecute war crimes in the middle of an armed conflict, you come up against these competing interests, which is to bring your own people home. The actual definition of the crimes is a complicated area. But what I would say to you at this point is that this is unusual in some ways as an armed conflict because you have the application not only of all four Geneva Conventions, but also Additional Protocol I, because both Ukraine and Russia are parties to Additional Protocol I. Additional Protocol I includes a list of war crimes relevant to this conflict, related to attacks on civilians or disproportionate attacks involving civilian casualties. And so it wouldn't be that difficult to prosecute such war crimes because they are defined in a treaty ratified by both sides. A lot of the media talk about the fact that neither Russia nor Ukraine have ratified the Rome Statute, but actually the Rome Statute is for prosecuting people in the International Criminal Court (ICC), and it's based on these crimes which have existed in treaty law for some time now. So I think it's certainly possible. And the fact that these crimes are grave breaches under the Geneva Conventions means not only that they could be prosecuted in Ukraine or Russia, but they could also be prosecuted in any state in the world because every state has ratified the Geneva Conventions, and many of those states will have national law that allows them to prosecute a grave breach of the Geneva Conventions, even states that are not parties to the ICC. So for example, since January this year, the United States has adjusted its law and could prosecute anybody accused of grave breaches. The United Kingdom has something called the Geneva Conventions Act, which gives jurisdiction to the British courts to prosecute those who are accused of grave breaches of the Geneva Conventions. So that would be the aspect that I would stress that the ‘universal jurisdiction’ if you like—because every state in the world is a party to these treaties—stems from the Geneva Conventions and not from something called international criminal law or even the ICC. CJLPA : In your opinion, would Ukraine need to amend any of their laws to align more with ICL standards in order to prosecute these crimes and establish accountability? And what would need to be amended? Or is it, as you said, not Ukrainian national law that would pose an issue? AC : No, I think there is room for amendments in Ukrainian law. I think one of the issues relates to command responsibility or superior responsibility—Article 28 in the ICC statute.[1] If you wanted to prosecute command or superior responsibility in Ukraine, my impression was that it would be quite tricky. But there may be other ways under Ukrainian law that I don't understand, as to how you could indeed prosecute somebody for command responsibility. In terms of other crimes, I think there are efforts to try to bring national legislation more into line with some of the long list of crimes in the ICC Statute. But I think, for the very basic crimes of murder and sexual violence, you would be able to use the war crimes concepts from the Geneva Conventions, which are sort of indirectly incorporated into Ukrainian law because it talks about criminal responsibility for violating humanitarian law treaties which Ukraine is a party to, and that would obviously cover the Geneva Conventions. CJLPA : In your recent book titled War , you explore the evolution of the term and how the different notions of war, or War, and armed conflict may produce different implications and consequences. Indeed, Russia prefers the term ‘special operation’, and individuals may be tried for treason by referring to it as a war. In your opinion, which category would Russia-Ukraine fall under, and what laws may apply in that case? AC : It's true that the Russian authorities have avoided using the word war to describe the operation. Although, ironically, my impression from some of the reports I've read is that they do talk about a war with NATO. So there's a sort of distinction between how they see the others, and maybe it's partly related to the idea that they claim they are sort of reincorporating Ukraine back and so they don't see it as a war with another state. But to be frank, I don't think that's the only reason why Russian authorities have avoided the word war . I think the word war suggests an all or nothing combat. And I think to suggest to the people that ‘we are at war’, or ‘we are going to war’ suggests that young people will be conscripted, and the whole economy will be mobilised. I think that might be a frightening concept, and so a special military operation implies something smaller. Now, whether or not one could use the word War with a capital W as I've used it in the book is a separate question; I've used it to mean a formal Declaration of War under the old law of war, where some conflicts were not considered War because there had been no Declaration of War. As far as I know, there's no Declaration of War by Russia or Ukraine, or any sense that they are at War . So, to answer your question, I would consider this a war or simply an armed conflict. It might make a difference, for example under some human rights treaties, which allow for the death penalty in time of War. There, I think you need a formal War, and not just an armed conflict. So it could be significant. The other area is in naval warfare, where some people might consider that the law of prize—the law that entitles you to seize enemy ships outside neutral waters—really requires a Declaration of War to trigger prize court jurisdiction. So there could be reasons why the states might choose not to make a Declaration of War or why, in the future, they might make one. But for me, at the moment, it's not a Declared War . CJLPA : You have also written about just war theory in the case of Ukraine, and that it may be time to consider holding lower rank and file soldiers responsible for fighting those conflicts in the same way we hold higher ranking military leaders responsible. Can you explain this concept for our readers and elaborate on the shortcomings of our current concepts of just war and responsibility? AC : Yes, thank you. In traditional just war theory, philosophers feel that there should be something called ‘the symmetry of soldiers’ or ‘the symmetry of combatants’, the idea is that whether you're fighting on the just side or the unjust side, you should be treated the same, unless, of course, you commit a war crime. But the mere fact of fighting, even for the aggressor’s side, should not lead to punishment under this theory. And this principle is defended strongly by traditional just war theorists. I'm not sure exactly what their overarching key argument is, but one of the arguments which recurs is that if soldiers are going to be punished for simply fighting, there would be no incentive to abide by the laws of war. So, if when you're captured, you're going to prison for simply fighting on the other side, then what's to stop you from killing civilians or committing rape because you're going to be punished anyway? I personally don't think that's a good argument. You would obviously be punished more if you've committed war crimes, and I don't think people commit war crimes thinking about whether or not they're going to be punished. I think you need a much more complex analysis to try to dissuade people from doing that. But then one finds a set of secondary arguments which revolve around feasibility, if you punish everyone from the aggressor's side you're going to have an impossible task. If there is an army of 100,000 people, and they're all aggressors, then you can't prosecute everybody. And so you make a mockery of the rule of law, and you undermine the whole concept of law in wartime, because people are violating the law every day, and you're not punishing them. Again, I don't think that really holds up in the sense that, clearly, we're not going to punish everybody, you've got to capture people, and you're not going to waste time punishing people who had no real role in the aggression. Yes, there may be foot soldiers who are liable to prosecution, but you're going to punish those who have engaged in knowingly in furthering the aggression, not people who were peeling potatoes not really understanding what was going on, sitting at the back of the lines. So, my suggestion was that we need to start to think about punishing those on the aggressor’s side and not consider that they have some special immunity derived from a philosophical just war theory. In law, it gets more complicated in that the Additional Protocol I does say that members of the armed forces of a state have the right to directly participate in hostilities in an interstate armed conflict. But in Nuremberg people were prosecuted on the military side for assisting the aggression. And I think it would be possible, without violating the rule that says you have the right to directly participate in hostilities, to start to think about the crime of aiding and assisting the crime of aggression. And this brings me back to my answer to your very first question that if we start to think about prosecuting those who assist the aggression, then that starts to open up the possibility of prosecuting businesses and business leaders for supplying the equipment, which allows a state to engage in an aggression. If we start from the idea that you can only prosecute the head of state for aggression and the top general, but you can't prosecute all the people who have helped in that aggression, I think you let a lot of people off the hook—all those who are making money out of the war and fuelling the war on the aggressor’s side. And I think they should start to think that maybe they too can be considered as liable under international law. So those are my sort of reasons why I think it makes sense to start to think about those who are helping the aggressor and not say that, traditionally, you can't look at either one side as worse than the other because ‘that's how it's always been’, because ‘that's how it's always been’ goes back to the time when disputes were settled in a duel-like mentality: we have a dispute, so we'll go to war, and then God will reward the winner and that's how disputes are resolved. But today, if you have a dispute, you’re supposed to go to the UN or the International Court of Justice, not fight it out on the battlefield, and if you've chosen to start a war, I don't see why not just the leader, but all of those who knowingly go along with it can't be punished too. Now my students and other people tell me: ‘Oh, but a lot of people will be coerced into going to war, and they won't really understand it, or it'll be a life and death, they'll be shot if they don't go to war’. To which my response would be, ‘Well, we could deal with those cases one by one when it comes to the prosecution. If somebody genuinely feared for their life and had to go to war and ended up being on the aggressor’s side, but didn't commit war crimes, maybe they don't get punished in the same way as somebody who organised all of the troops or somebody who built all the bombs and knowingly sold them to the aggressor’s side’. So, it's a bit of a taboo subject in just war theory. Even those who take a more revisionist approach don't really want to touch the idea that soldiers can't be prosecuted merely for participating in a war on the aggressor’s side, but I'm saying maybe the time has come to change that approach. CJLPA : I think a lot of how we deal with war, as you said, goes back to very archaic ideas, and it's time to modernise that and address disputes the way we address all kinds of other disputes. I agree that it also depends, because some soldiers would be way more aggressive than other soldiers. And I think that really gives an idea of the kinds of individuals involved in the conflict. Following from that, what practical limitations may arise from broadening the scope of accountability? As you said, if we don't stop at soldiers, then we might bring in corporates as well, which is also very important. So, what practical limitations may arise from this, and what avenues may be available to address these? AC : I mean, I'm not sure there are practical limitations. I'm told, ‘Oh but that means prosecuting 100,000 people’, but that's not really how war crimes law works. Not all the war criminals are prosecuted in any conflict. A few people are—a tiny minority of those who have committed the crimes. And I think it could be the same for prosecuting the crime of aggression. It's not that you're going to take everybody in the prisoner of war camp and then prosecute them for the crime of aggression, but I think what we need to challenge is the idea that nobody can be prosecuted except a few leaders. Is it practical to prosecute corporations and their directors? I think absolutely, yes. In some ways, it's easier because, first of all, the corporation can't move around in the same way that people can. People can sort of disappear, they can change their names, but if you are a major corporation, and you're supplying parts knowing that they're going to be used in a war of aggression, you can't just disappear—you're listed on the stock exchange, you have assets, you have a reputation. So I think it's a question of changing one's focus rather than that it is impracticable. It's practically perhaps more difficult because corporations are well funded, almost by definition, and they will be able to pay for very good lawyers to delay prosecutions, to challenge jurisdiction, and so on. But we'll see what happens now with this Swedish case. It's going to run for two years and it will be watched, I think, very carefully, by corporate directors around the world, and whether or not either the corporation has to pay a fine—because they have already had some money frozen by the Swedish prosecutors—or the directors are punished, I think it will give pause for thought to other directors, and I think maybe it's worth reminding that such a prosecution can happen for war crimes, but in the future, it might also be for aiding and abetting the crime of aggression. The rule that says that you can only prosecute the leaders is a rule for prosecuting aggression at the ICC, it's not necessarily a rule, in my view, for prosecuting aggression in national courts. So I think a lot of states have rules that say the crime of aggression can be prosecuted and here's the punishment, and those same states have rules on aiding and assisting an international crime. So what I'm suggesting is that it could give some companies, and their directors more importantly, pause for thought. CJLPA : I think it's about time that corporations are held responsible and used as an example that, just because one is dealing with a corporate body does not mean that there are no individuals behind it who are making these decisions, who are playing that part in these armed conflicts. It's not just these military leaders that are directly involved. In 2018, the ICC gained jurisdiction over cases under the crime of aggression charge, with the important exception that it cannot exercise its jurisdiction over an actor from a non-signatory state. As a result, the international community has turned to the idea of a special tribunal for aggression to hold Russia accountable for its invasion. How optimistic are you regarding this path, and does this focus on a tribunal weaken the role of the ICC as an institution? AC : I don't think it weakens the ICC as an institution. The ICC has plenty to do already, and if one were to give it the extra task of creating a dossier and prosecuting the crime of aggression at this point, it clearly has to diminish how much attention it can give to war crimes. On the other hand, having said that, politically speaking, it does look strange that the ICC can't prosecute a Russian leader for the crime of aggression, even if Ukraine were to be a party to the statute. That seems odd. And it seems, to the media, that the ICC is really selective in that it doesn't go after powerful leaders, it only goes after other people. It's one of the peculiarities of the 2018 entry into force of the aggression amendments, as you say, is that you can't prosecute somebody from a non-state party. And there are a lot of other complications to do with jurisdiction over aggression. And I think it's very unlikely that we will see prosecutions for aggression. It's not just that Russia, China, and the United States got a free pass. It’s that most states are not going to ratify the amendment, which would allow for prosecution. So also British leaders and French leaders are not going to be prosecuted. So, I think one will just have to accept that states are not prepared to give an international tribunal jurisdiction over their leaders for aggression. Yes, you can say it's the fault of the ICC, but it's not really, it's the fault of those states who have steadfastly refused to allow the ICC to do this. So if you want to blame people, you can blame the British government, the American government, the French government, but you can't really blame the ICC as such. Now, is it a good idea to have something in parallel? I would say yes, it will allow the story of the aggression to be told, it will allow for the identification for those who have been most involved in planning and executing it. And my hope, would be that, again, that might give people who are thinking about planning an illegal use of force, pause for thought, because even if it comes 10 years after the invasion, or 20 years, the charge of aggression is going to stick to them for the rest of their lives, whether or not they actually capture somebody and put them in prison. But the process of preparing the prosecution highlights that there is no right to go to war. It's a crime. And that, I think, focuses people's attention. And again, I think, the knock-on effects for those who are a bit more junior, or who are involved in influencing and shaping the policy, and in the commercial world assisting such an aggression, is perhaps where we should be focusing, because those are the people who are going to be, in a way, more vulnerable, because they want to travel and they have assets. It's more likely that those assets could be frozen and taken away from them, and given a choice, ‘Do I assist in this war of aggression or not?’ I'm hoping that some people will decide not to, when having seen that a special tribunal on aggression comes after a range of people and not just the president or prime minister. CJLPA : In recent developments, and in the war, we have been made more aware of the Russian funded Special Forces by the name of the Wagner group. What is their legal status? Are they mercenaries? Or are they, in effect, Russian Armed Forces? What legal framework governs their status? And could Russia have certain responsibilities in relation to these crimes and how we can hold them accountable? AC : Well, it's a fast-moving area. If we go back a while to when Wagner was disconnected from the Russian state more formally, they're often described as mercenaries. The problem with that is, of course, politically, and in the media terms, that they do look like mercenaries, but technically, as a matter of international law, the definition of mercenaries found in Additional Protocol I to the Geneva Conventions says that you can't be a mercenary if you are a national of a party to the conflict, or a resident of territory controlled by a party to the conflict. So members of Wagner who are Russian nationals, or even people of another nationality resident in the Donbass, say, which is controlled by Russia now, can't be a mercenary by definition. If captured, they would have to be given full prisoner of war status, and they couldn't be prosecuted as mercenaries because they wouldn't fit that definition, and anyway, they would have prisoner of war status. So that’s a bit complicated. On the other hand, you might have somebody from Syria working for Wagner, which happens. They would be a mercenary and would not get prisoner of war status. Now, the sort of more complicated part is that another way in which you lose your mercenary status, if I can put it like that, is if you're integrated into the armed forces of the state. So to the extent that Wagner are now integrated into the Armed Forces of Russia, and it seems, according to the media reports, that they will come under the Ministry of Defense, and so on, and be under command and control, then even if they are paid, and they don't look like the armed forces, they would be the armed forces, and they wouldn't be mercenaries, whatever their nationality. So it's super complicated and you almost have to go case by case and day by day, because on one day, they might be integrated and, in the past, they weren't. Now that's the situation in Ukraine. It gets much more complicated when you go to Mali, or one of the countries in Africa where Wagner are operating because there, there's no question of it being an international armed conflict and individual Wagner fighters having prisoner of war status or losing that if they're mercenaries, and there's an African convention on the elimination of mercenarism and a UN Convention on the use of mercenaries , which might create criminal responsibility for some of them. But again, you'd have to go situation by situation, and almost individual by individual as well because there are questions of motivation of the individual that are part of the mercenary definition, whether they're doing it just for money or for some other reason. So it gets very complicated. To answer your second question, the extent to which Russia is responsible, if they become members of the Armed Forces of Russia, then Russia is automatically responsible for them. If they are not members of the Russian Armed Forces, and they are being directed by the Russian government, then under the law of state responsibility, Russia will be responsible for what these individuals do during the operation that is directed by Russia. The law on that is found in the Nicaragua vs. United States judgement of the International Court of Justice and in the law on state responsibility. Again, it can get quite complicated, you have to know which operation we're talking about. But in short, the Russian government would be responsible as a matter of international law for those operations which they have directed, both for the violations of human rights law and for the violations of international humanitarian law. When it comes to the accountability of the individuals working for Wagner, there we forget, sometimes I think, that they can all be held accountable for any war crimes or crimes against humanity, or act of genocide even, if that was the appropriate crime, at the International Criminal Court. The International Criminal Court has jurisdiction over any of these crimes that happen in Ukraine, and obviously, in a lot of the countries in Africa where Wagner are operating. We could yet see individuals from Wagner prosecuted at the ICC, it's only the Russian aggression in Ukraine that can't be prosecuted at the ICC, but the other crimes can be. And to the extent that their crimes are grave breaches of the Geneva Conventions, going back to my earlier theme, they could be prosecuted anywhere in the world. So the individuals in Wagner are a bit different from the leadership of Russia, say, in that they do want to and need to travel around the world. I would say they're vulnerable to being arrested—those who are wanted for war crimes—to being arrested and prosecuted anywhere, because if they're grave breaches, they'll be crimes of universal jurisdiction, and in addition many states will prosecute crimes committed in internal armed conflict, maybe committed in African countries where Wagner is operating. We have recently had quite a few prosecutions in Switzerland, related to Liberia, where people are being prosecuted for crimes committed in non-international armed conflict under Swiss law and international law. CJLPA : From your point of view, how can justice be served for victims when we can only try these international crimes in the aftermath of the war, when they have already been committed, lives were lost, and most victims have yet to obtain some form of financial redress? Especially when considering the extensive financial resources and the many years it would take to see accountability. In other words, there certainly has to be balance when prosecuting crimes of this gravity, which takes time, it takes a lot of money, but essentially, what does international criminal law and justice mean in international criminal law? AC : I think we have a sort of traditional understanding of international criminal law as coming in the transitional justice phase, or post- Bellum phase. The image that always comes to mind is those pictures of people being prosecuted in the Nuremberg court or the post-Rwanda prosecutions. But in fact, the Ukraine conflict is reminding us that people can be prosecuted in the middle of an armed conflict, and there have been some prosecutions in Ukraine. I wouldn’t be surprised if we see a prosecution at the ICC before this conflict is over. I don't think we should assume that prosecutions only come at the end of a conflict when you have a winner and the winner gets to prosecute. I think this conflict is a bit special in that we have a developed system of international criminal law up and running, and we have expectations that there will be prosecutions, so there were prosecutions recently in Ukraine regarding Bucha, war crimes allegations. If I've read it correctly, these were crimes held in absentia, so they didn't actually have the defendants, but this may be a new way of dealing with the truth, of allowing witnesses to have their say, as you point out, before things are forgotten and things have moved on. I think we might be seeing a new type of international criminal law where it's as much about retribution and punishment, as about victims airing their grievances, and a story for the historical record, and identifying perpetrators who, even if they are not immediately captured, are going to find it increasingly difficult to move around the world. It's difficult now to go through borders with facial recognition, and with electronic passport controls, even when you get on the plane, you're being electronically scanned. I think it's going to be a different approach, rather than a show trial where you have people standing up in photos, it might be more about casting the net wider, and not knowing exactly when somebody is going to get caught. I might stress that these war crimes and crimes against humanity that we're talking about are crimes which have no statute of limitations according to international law. You are not supposed to say, well, after 10 years or 20 years, it's impossible to prosecute that. So you might think you've gotten away with it, but you'd also be aware that in 20, 30, 40 years’ time, somebody might recognise you as a person, even if you've changed your name, and that your freedom then might be curtailed. CJLPA : You've written about the limits of human rights protections in times of armed conflict. Has the advent of social media and real time documentation of these abuses increased accountability? And can those tools be used to further increase the reach of human rights protections in terms of conflict, and even in relation to witnesses and the use of such evidence in court? AC : Yes, in my experience, it is increasing accountability, certainly in the sense of people being held to account, even if it's not leading to so many prosecutions, but social media has enabled investigators to know who was where, and when. If they've posted a picture of themselves at a particular site, giving a speech, encouraging people to do certain actions, then that's part of the story. They can't say, ‘I never gave that speech’, or ‘I wasn't at that place on that day’, because it can all be pieced back together. The other real time element in this is not just the photos, the postings, and the videos, but also the satellite imaging, which is a new aspect to human rights investigations. So if you are trying to prove that a village was destroyed on a particular day, and you know that troops from one particular party to the conflict were there at that time, and you can see them moving, then you can show a before and after satellite image that builds up a picture in a way that interviews with witnesses can't quite do so, in terms of the persuasiveness of it. So a lot of the technology, it's not just related to people posting—I think people will become more wary as they realise that they're implicating themselves—but it's also the technology of having an eye in the sky, to use that expression, which will be able to show who moved where and what the results were, and I think that is quite important for accountability. CJLPA : On a final note, what do you think the future of Ukraine would look like, in an ideal world, or how do you think the conflict would progress? Do you think we could see an end to it anytime in the near future? AC : Well, I would hope for an end to it as soon as possible. It's not really for me to design the future of Ukraine, but I suppose I would want it to be under the rule of law, I would want it to be unoccupied, and I would want it to be peaceful. CJLPA : Thank you very much once again for giving us your time this morning and for providing highly valuable insights on the Russia-Ukraine situation. AC : Thank you for such a probing set of questions. This interview was conducted by Shahad Alkamas, who graduated in 2021 from Middlesex University and obtained her LPC the following year at the University of Law. In addition to her Legal Researcher role at CJLPA, Shahad is currently working as an in-house litigation paralegal, with previous experience in various legal fields such as personal injury, immigration, and civil litigation. [1] Rome Statute of the International Criminal Court 2002, Article 28 reads in part: ‘Responsibility of commanders and other superiors: A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution’.

How and why the international community failed Syria One of the most unforgiving aspects of the Syrian Conflict is the fact that its tragic episodes have unfolded in full light of day . No self-respecting journalist  or policymaker  can claim ignorance  of their true nature. We knew of various development s that included arrests and bombings, instances of ethnic cleansing and cold-blooded massacres almost as they happened. Everything was reported in real time  and documented in sound and picture. Even the horrible industrial-scale killings that took place in security centres and  prisons , turned into veritable liquidation camps, did not escape this documentary trend due  to myriad leaks and the brave whistle-blowers behind them.   D espite all this, there were still those who chose not to see .   T hose who refused to believe what they were seeing, those whose interests made them disregard the truth and invest in misinformation, and those whose worldview and political calculations made them reluctant  to act decisively to put an end to the unfolding tragedy. The result was another failure in living up to the ‘Never Again’ promis es,  regarding instances of genocide , and that failure has had implications for global security everywhere. It has upended political processes in countries far beyond the Middle East and has served to undermine the ‘Liberal Global Order’ on various levels. Without understanding the ‘How ’   and ‘Why’ of these assertions, we risk repeating our mistakes in relation to other conflicts. No less importantly, we risk failing in Syria again , where the struggle is far from over  and  far from being as contained as it appears .   In this short essay, I will briefly relate my impressions on the myth of containment of certain conflicts in an age of hyper-connectivity , on how such conflicts play out on the global stage, and on domestic scenes in various countries in an age of increasing political polarisation . I will also deal with the ‘usefulness’ of these conflicts to certain actors on the one hand, and the danger they pose to the interest of others on the other hand. Finally, I will deal with the global implications of neglecting the issue of accountability in regard to war criminals now turned drug kingpins as well.   Let’s start with the basics   The conflict in Syria did not start out as an armed insurgency, but as a largely peaceful protest movement against official corruption and authoritarian methods. It only turned into a violent insurrection following months of violent crackdown by the ruling regime of Bashar a l - Assad. This is how the BBC describes  this development:   In March 2011, pro-democracy demonstrations erupted in the southern city of Deraa, inspired by uprisings in neighbouring countries against repressive rulers. When the Syrian government used deadly force to crush the dissent, protests demanding the president’s resignation erupted nationwide. The unrest spread and the crackdown intensified. Opposition supporters took up arms, first to defend themselves and later to rid their areas of security forces. Mr Assad vowed to crush what he called ‘foreign-backed terrorism.[1]   The decision to take up arms was slow in the making on part of the protesters. Their preference in the face of the Assad regime’s violence and its deployment of tanks and artillery against unarmed civilians was to call on the international community to impose a no-fly zone over the country and to target the regime’s military infrastructure thus crippling its capacity to wage war against them. Such a step, they hoped, would force the regime into negotiating with opposition groups paving the way for political transition. As usual, in these critical moments, the international community waited for the occupants of the White House to lead the way, but the Obama Administration at the time had other concerns and priorities.   Despite his promise to the American people to end America’s involvement in conflicts abroad, especially in Iraq and Afghanistan, President Barack Obama had already found himself authorising  the US military to lead NATO’s operations against the Libyan dictator Muammar Qaddafi. The intensive operations lasted throughout most of 2011, that is, at the same time Syrians were demanding international intervention. As such, despite President Obama’s call  on Assad to ‘get out of the way ’,  the prospect of any direct US military move at that stage was categorically shut down.[2]   As violence escalated, protesters, now joined by thousands of defectors from Assad’s armies, were forced to take up arms. Meanwhile, regional powers, led by Saudi Arabia, Qatar, and Turkey, began pouring money to support various rebel militias while pressing their American ally to get more involved. In mid-2012, President Obama sent  military advisors and equipment to Turkey and Jordan to increase the fighting efficiency of moderate rebels operating in the southern parts of the country in the hope of forcing Assad to the negotiation table.[3]  For all the conspiracy theories that proliferated before and since, that was the extent  of America’s military involvement in supporting Syria’s rebels. The end goal for the Obama Administration has always been a negotiated transition rather than the kind of regime change that took place in Libya, not to mention Iraq. ‘There is no military solution ’ to the Syrian Conflict became  the of ten- repeated mantra in official briefings at the time.[4]  T hese tactics only served to push Assad into further reliance on Iran, Lebanon’s Hezbollah, and various Shiite militias funded and trained by Iran and made up mostly of Iraqi mercenaries and Afghan refugees.   In September 2012, President Obama drew his (in)famous red line on the use of chemical weapons by the Assad regime, asserting  that:   We cannot have a situation where chemical or biological weapons are falling into the hands of the wrong people. We have been very clear to the Assad regime, but also to other players on the ground, that a red line for us is we start seeing a whole bunch of chemical weapons moving around or being utilised. That would change my calculus. That would change my equation.[5]     Despite this assertion, a major chemical weapons attack against a rebel stronghold near Damascus in August 2013 failed to change President Obama’s equation. As his remarks made clear, Obama seems to have been more concerned about the potential of having these weapons fall into the ‘wrong ’ hands, meaning the Jihadi elements which have begun leaving their mark on the scene by that time, rather than having them deployed against rebel forces by the Assad regime. More importantly, Obama’s real calculus remained centred  on avoiding entanglement in a conflict that by 2013 had clearly devolved into a proxy war pitting many regional players as well as different segments of the population against each other.   W hat seemed like a brave and wise decision at the time, at least to some observers, created a vacuum on the ground that was soon filled by the Islamic State, a terrorist group launched in Iraq, that President Obama had once dismissed  by comparing it to a junior varsity basketball team.[6]  By 2016, American jets were finally flying over the Syrian skies, but rather than bombing locations manned by Assad loyalists and militias, the real cause of Syria’s suffering, they were targeting communities that have been invaded by the Islamic State. Their liberation would take years and would exert a tremendous toll on the civilian population. At the same time, Russian jets were busy pounding rebel positions in Aleppo in an intervention facilitated by Iran. Consequently, the survival of the Assad regime over the long haul would soon be assured. The rebels, who at one point controlled most of the country, will soon be forced to occupy small pockets in the Idlib province along the borders with Turkey.   For its part, the US will find new allies among the Kurdish population in the northeast and its operations against the Islamic State in Iraq and Syria will drag on until early 2019. A small number of US troops are still operating in the region to fight against remaining pockets of IS terrorists , T he US often finds itself having to mediate continually between Kurdish militias and Arab tribal fighters, while trying to alleviate Turkish fears regarding Kurdish separatist tendencies.   J ust when everybody thought that the recent drive by Arab states to normalise  relations with Assad has put an exclamation point on his ‘victory ’,  major protests erupted in the southern parts of the country; in areas deemed to be under regime control; with the protesters demanding nothing less than the ouster of their ‘Dear Leader’, and adopting the same slogan that reverberated through the country back in 2011: ‘the people want to topple the regime ’.     A lot has changed  and n othing has changed. The leaders of the United States and other democratic powers that have called for the departure of Assad and for a democratic transition in Syria are now facing the same dilemma: where do their values and interests intersect in Syria? Which is costlier in terms of human lives, credibility, and strategic interests: intervention or non-intervention? Or, as things almost always play out eventually: a carefully considered and planned intervention, or a reactive haphazard one?   The Myth of Containment   Nothing shatters the myth of the containability  of civil conflicts in our hyper-connected world like the Syrian Conflict does, at least if people are willing to see. With Germany now housing close to a million Syrian refugees, and far right political parties making major headway in provinces and countries all over Europe , n ot to mention increasing racial tensions in all countries bordering Syria between natives and refugees .   W ith regional powers using the conflict as an opportunity to advance their parochial interests and settle scores with Jihadi elements . With t errorist cells filling the void left by ill-equipped and abandoned moderate rebels, even after the collapse of the Islamic State Caliphate .   W ith the Assad regime transforming the country into the world’s newest narco-state and flooding Syria’s neighbours  with the drugs Captagon and Ecstasy . W ith the possibility that the Russian President Vladmir Putin’s decision to invade Ukraine in 2014 was heavily influenced  by the decision of his American counterpart to back down  from enforcing his red line on the use of chemical weapons in 2013.[7]  While  his decision to invade Ukraine again in 2022 seems linked to his perceived successes in Syria since the Russian intervention there began  in 2015 . W ith all these developments taking place around us as consequences of the Syrian Civil War, the concept of ‘containable conflicts’ should finally be put to rest. Our modern world has become too connected, hyper-connected in fact, to allow for intractable civil conflicts to be contained and not have far reaching ramifications far beyond their borders.   Though the Assad regime seems to have adopted a wait-and-see attitude vis - à - vis the protests in the Suwaida Governorate in the southern parts of the country . W hile it keeps focusing its attention on the more violent front in the Idlib Governorate in the northwest, this policy could change at any given moment. For this reason, the United States and its regional allies, especially Jordan and Saudi Arabia, need to consider the importance of early decisive intervention to help secure these strategic areas. A conflict in the Syrian south, which will likely involve Russian airstrikes on critical infrastructure there, ie schools and hospitals, and which will surely rely on pro-Iranian militias in the field , would prove extremely violent, and could lead to a new wave of refugees that will surely destabilise  the already fragile situation in Lebanon and Jordan. Terrorist cells, some affiliated with Islamic State, could easily take advantage of any chaos as well. The renewed conflict might indeed physically spread to Jordan and Lebanon. Captagon production will boom, and trafficking will reach far beyond the region’s borders. Nothing will be contained.   The Polarisation  Effect   The Syrian conflict has unfolded at a time when the United States and other Western democracies are going through a deeply polarising  internal ideological struggle over many vital aspects of their contemporary existence, including: the nature of their collective identity and its legitimate historical sources; how diverse their societies could or should be; their place in the world, past, present, and future; and what political current is genuine, patriotic, or progressive enough to lead the way forward. All aspects of foreign policy were being assessed in view of their potential impact on this existential ‘debate’ and its possible outcomes, especially which party will emerge as a winner and which a loser.   In regard to the policy on the Syrian conflict, an unlikely ‘alliance’ of Realists, Progressives, the far  r ight, and the far left carried the day. The alliance was not official of course, and there was no direct coordination between these camps necessarily, but their views on the Syrian conflict converged and heavily influenced both the public opinion and official policies in their countries. For their  own particular ideological reasons, each of these camps is unhappy with the existing global liberal order, and they all want to see a much smaller global footprint for the United States and the West , including i n such vital international institutions as NATO and the World Trade Organization. How the rest of the world fares as a result  of this shrinkage or downsizing is not a major concern of theirs. All of them seem to think that the U S and its Western allies are quite capable of shielding themselves from any negative consequences. By advocating a policy of non-intervention in Syria since the beginning of the conflict, then modifying their position to accept a narrow intervention focused exclusively on the Islamic State, their collective hope was for such an approach to weaken the much-reviled Global Order which America and its Western and democratic allies constantly needed to serve and protect.   This is why today, the same camps are busy advocating a similar approach for dealing with the Russian invasion of Ukraine, that is, a policy of non-intervention. Luckily for the Ukrainians, they have to deal with a much wiser and far more pragmatic president in the White House. For while President Joe Biden may not have disagreed with President Obama’s approach on Syria, the double blow to America’s international credibility as a result of failing to enforce its red line there, followed by the dangerously erratic foreign policy of President Donald Trump, and President Putin’s increasingly aggressive tactics, seem to have alerted him to the need for taking a strong stand on Ukraine and against Putin, to save and strengthen NATO—an institution that retains its credibility and necessity in President Biden’s calculus.   Additionally, the liberal interventionists who had been the biggest policy losers in the fight for Syria seem to have learned from their loss and have managed to articulate their position much more clearly, forcefully, and earlier in the conflict. In this, they were helped by Ukraine’s close geographic and cultural ties to Europe and the West. But in Syria, the United States and its Western and democratic allies did not simply betray their values, they  also undermined their own interests. Their failure in Syria was not simply a reflection or a byproduct of their own internal crises, it exacerbated them, something that is yet to be acknowledged widely in their decision-making circles. The political elite in the West, it seems, ha ve become too disconnected from the realities elsewhere in the world to fully understand them or appreciate how deeply connected our world has become. Even the liberal interventionists suffer from this handicap. Their willingness to acknowledge the need for intervention does not necessarily lead to proposing the right policies for it or knowing how to manage it. At least they are willing to listen. They are aware of the problem.   Interventionism is not always an expression of some lingering imperialist instinct or a reflection of imperial overreach. In our hyper-connected world, a measure of interventionism by democratic powers is needed as a way of ensuring adherence to certain standards of justice and accountability without which the current transition to multipolarity will be a much more bloody and violent affair than it should be. At a time when there are so many aspiring regional powers rising and flexing their muscles, if a real red line cannot be drawn on mass atrocities, even when they are being perpetrated by relatively weak regimes, such as Assad’s, then this will serve as a green light for more and more. The west will not be shielded from the impact .   Here Come the Worms   The Realists and Co. were not the only ones to have their little moment under the sun at the expense of the Syrian people. There was also Vladimir Putin and his merry band of cutthroats, liars, and thieves: the Wagner Group. There was Iran, and its own Shia militias spread out across the region fighting a 1400-year-old battle against illusory windmills. There were t he Islamic terrorist groups who have performed over the years an intricate dance of merger and betrayal reflecting personal disagreements between the leaders and continually changing priorities of their regional donors. Both Russia and Iran benefited immensely from the struggle in Syria, or to be more specific, from the U S- led approach to it. Every half measure President Obama adopted was exploited to the fullest by the loitering duo, not simply to strengthen their position in Syria, which has turned into a dual mandate of sorts, but also to improve their regional and global standing vis - à - vis the United States.   This is especially true in the case of Russia where Vladimir Putin, using the various media institutions under his control, flooded the information scene with disinformation and lies about everything related to the Syrian conflict, from the chemical weapons attacks carried out by his aspiring mini-me, Assad, to the humanitarian organisation , the White Helmets, that has been doing an amazing job saving Syrian lives. Amplified by willing ideologues from the progressive, far left, and far right camps . H is propaganda proved effective at creating fertile grounds for all sorts of conspiracy theories to take hold.   The anti-war activists in the UK were particularly duped, reacting mostly to what had taken place in Iraq in 2003—the U S- led invasion justified  in part on the basis of faulty intelligence—rather than what was taking place in Syria since early 2011 . They  refused to believe any reports on the situation there, even those coming from myriad independent journalists and human rights organisations . Their minds were already made up and they only listened to sources that confirmed their beliefs. In 2013, the anti-war movement was so effective that it put enough pressure on the British Parliament to vote against UK’s participation in any military operations meant to punish Assad following the chemical weapons attack in Damascus . This development, in turn, helped influence President Obama’s decision to back down from enforcing his red line, and to eventually accept a Russian-sponsored deal that saved Assad’s skin. For spite, Yet Assad will use chemical weapons on a number of occasions in the future, as per UN reports. [8]   As for Iran, despite Russia’s presence on the ground and regular airstrikes against its positions by Israel, it has now become so enmeshed within the military and security apparatuses of the Assad regime, to the point of raising alarm bells even within the ranks of Assad loyalists, being cited as one of the major motivations for the anti-regime protests taking place today in Suwaida. Shaikh Hikmat a l - Hajiri, one of the top religious leaders of that majority-Druze region, has even called for Jihad  against the Iranian invasion of the country , as well as for establishing secular democratic rule. Yet it seems that without a major shakedown of the entire system, ie toppling the regime, Iran’s influence in Syria is here to stay.   Jihadists and terrorists now control a swath of land in the Idlib province along the borders with Turkey. The most powerful group among them is al-Qaeda offshoot that goes by the name of Tahrir al-Sham, and whose leader was released from prison by the Assad regime in early 2011 among hundreds of Jihadis and terrorists in a macabre move designed to give credence to Assad’s claim that he is fighting terrorists. Meanwhile, the Islamic State itself still retains pockets and cells scattered in the Badiyah area, in the Syrian desert stretching from northeastern parts of the country all the way to the borders with Jordan in the south.   The presence of so many war criminals on the scene is bound to complicate issues of stabilisation , transition, and accountability. It also makes them all the more necessary, otherwise, the lesson that will be learned by dictators throughout the world is that impunity will triumph. Indeed, this, it seems is the governing ethos of current global dynamics, and that’s a deadly reality that does not augur well be it for peace, accountability, or democracy, anywhere.   Accountability   To paraphrase President Obama’s favourite  quote by Reverend  Martin Luther King Jr:   ‘ the arc of the moral universe is indeed long, but it doesn’t bend towards justice by itself ’. Those who believe in justice need to push hard to bring criminals to account. Today, and as we witness the rekindling of revolutionary fires in Syria, bringing to account the war criminals that have devastated  the country is more vital than ever.   The list of the war criminals of Syria is long indeed, but its constituents are rather obvious. They include Assad himself of course, as well as his generals in the military and security apparatuses, especially those who orchestrated the liquidation of tens of thousands political detainees in ‘industrial-scale’  massacres not seen since World War II. They also include Russian generals and Wagner mercenaries, Iranian ‘advisors’ and other sectarian operatives funded by Iran, and certain Jihadi elements and operatives affiliated with the Islamic State and other terrorist movements.   Syrians are not waiting for the international community to make its move and are already trying to get a measure of justice on their own working with well-established legal experts. Several trials against lowkey operatives who were apprehended after they fled to various European cities have already taken  place or are underway . A trial in France is also targeting  two of Assad’s top security chiefs, Ali Mamlouk and Jamil Hassan, for ‘complicity in crimes against humanity and war crimes in killing two French nationals of Syrian-descent’. [9] The two are being tried—in absentia, of course, but the symbolism is nonetheless significant.   Meanwhile, the governments of the Netherlands and Canada have brought  a case against Syria before the International Court of Justice ‘for torture and other cruel, inhuman and degrading treatment and punishment of its own population ’. The basis for the case is evidence ‘gathered by various bodies, including the International, Impartial and Independent Mechanism, the UN’s investigative body for Syria ’.[10]    Despite the significance of these steps, it could be far more effective to establish a special tribunal under the auspices of the United Nations General Assembly, to try Assad himself and all other criminals, and to issue indictments. If the International Criminal Court could issue an arrest warrant against Putin, the head of a nuclear state, there is no reason why an international tribunal cannot issue similar warrants against Assad and other war criminals in Syria. Admittedly, executing these warrants may not be easy, but it’s not impossible either.   Decision-making in democratic states is never an easy process, especially in times of crises, especially in regard to foreign policy, and especially when so many of these countries have a long history of imperialist (mis)adventures . W here the debate about it is never-ending and remains very bitter and highly charged.   Syrians and other peoples from the Global South who look to democracies for help on any issue have to understand that . A n American president, for instance, operates under many constraints, and has at any given moment, a number of crises that require his attention, where he has to consider issues of national interests, of global power balance, and of national and international law (because yes, they do really matter). Then, there is always the question of the President’s own worldview, priorities, and predilections. The same applies for many Western leaders as well. So, while Assad can go to Putin, hat in hand, and beg for his support, and while Putin can make that decision without having to consult anyone, no American President or any other democratically elected leaders can behave in a similar fashion when asked for help, no matter how sympathetic to the cause he happens to be. This ‘calculus’ needs to be understood  and even appreciated by  Syrians. Democracy is messy and we need to learn how to deal with the mess, especially now as a second revolution seems to be looming.   For their part, people in democratic societies have to come to terms with their increasing responsibilities in a hyper-connected and hyper-interdependent world. The lines between foreign and domestic policies are continually blurring, and that requires us to develop a deeper understanding of ‘foreign’ policy. With so many of our citizens being first-and second-generation immigrants, and with so many refugees living in our midst with the promise of more to come, be it legally or illegally, how do we define ‘f oreign’ these days anyway? Whether we live within a unipolar or a multipolar world order, order needs to be maintained, that is, policed. There needs to be standards and accountability. A world rife with impunity is poisonous to all, even the most rich and powerful states. If we ever needed to draw a real red line, it should be done now and in regard to mass slaughter. The promise of ‘Never Again’ should not continue to seem so hollow and hypocritical. Peace and stability should never be seen as higher virtues than liberty and justice. Our survival as a civilization existing in a moral universe requires them all. *** Since the submission of this article in early October 2023, much has taken place: Jordan has carried out several airstrikes inside southern Syria targeting infrastructure and persons affiliated with drug-trafficking, with these strikes occasionally leading to civilian casualties.[11]  A court in France issued arrest warrants against Bashar al-Assad and his brother Maher for complicity in crimes against humanity and war crimes. [12]  And a new deadly conflict has erupted in Gaza which could pave the way for a larger regional confrontation, according to many analysts. The varied and polarizing global response to this conflict once again shatters the myth of the containability of certain ‘local’ developments. But it also highlights a major moral dilemma that democracies are facing today, as many of the same political actors currently rallying in support of Palestinians have previously opposed intervention against the Assad regime and oppose Western support for Ukraine. While the West may not be responsible for the crises in Syria, Gaza, and Ukraine, its interests and its security are clearly impacted, hence the imperative to reach internal consensus on how to effectively deal with these situations. Ammar Abdulhamid Ammar Abdulhamid is a well-known Syrian human rights activist, author, poet, and political analyst living in Washington, DC . He is the president of the Tharwa Foundation; a nonprofit organisation that encourages diversity, development, and democracy in the MENA region. Furthermore, he is a Parliamentarian and Director of Policy Research at The World Liberty Congress; an organisation that looks to support and speak out for pro-democracy movements. His work over the last two decades has looked to endorse the political and social modernisation of his native country of Syria. [1] ‘Why Has the Syrian War Lasted 12 Years?’ ( BBC News , 2 May 2023) < https://www.bbc.com/news/world-middle-east-35806229 > accessed 18 December 2023. [2] ‘Remarks by the President on the Middle East and North Africa’ ( National Archives and Records Administration , 19 May 2011) < https://obamawhitehouse.archives.gov/the-press-office/2011/05/19/remarks-president-middle-east-and-north-africa > accessed 18 December 2023. [3] Michael R Gordon and Elisabeth Bumiller, ‘U.S. Military Is Sent to Jordan to Help with Crisis in Syria’ The New York Times  (New York, 10 October 2012) < https://www.nytimes.com/2012/10/10/world/middleeast/us-military-sent-to-jordan-on-syria-crisis.html > accessed 18 December 2023. [4] Barbara Plett Usher, ‘Obama’s Syria Legacy: Measured Diplomacy, Strategic Explosion’ ( BBC News , 13 January 2017) < https://www.bbc.com/news/world-us-canada-38297343 > accessed 18 December 2023. [5] ‘Remarks by the President to the White House Press Corps’ ( National Archives and Records Administration , 20 August 2012) < https://obamawhitehouse.archives.gov/the-press-office/2012/08/20/remarks-president-white-house-press-corps > accessed 18 December 2023. [6] Shreeya Sinha, ‘Obama’s Evolution on ISIS’ The New York Times (New York, 9 June 2015) < https://www.nytimes.com/interactive/2015/06/09/world/middleeast/obama-isis-strategy.html > accessed 18 December 2023. [7] William Christou, ‘For Syrians, Russia’s Road to Ukraine Started in Damascus’ ( The New Arab ) < https://www.newarab.com/analysis/syrians-russias-road-ukraine-started-damascus > accessed 18 December 2023. [8] ‘ Security Council Deems Syria’s Chemical Weapon’s Declaration Incomplete, Urges Nation to Close Issues, Resolve Gaps, Inconsistencies, Discrepancies’ ( UN Press , 6 March 2023) < https://press.un.org/en/2023/sc15220.doc.htm > accessed 18 December 2023 . [9] ‘France issues arrest warrant for Syria’s President Assad – source’ ( Reuters , 15 November 2023) < https://www.reuters.com/world/france-issues-arrest-warrants-against-syrias-president-assad-source-2023-11-15/ > accessed 18 December 2023. [10] ‘The Netherlands and Canada to Bring Case against Syria before International Court of Justice’ ( Government.nl , 12 June 2023) < https://www.government.nl/latest/news/2023/06/12/the-netherlands-and-canada-to-bring-case-against-syria-before-international-court-of-justice > accessed 18 December 2023. [11] ‘Suspected Jordanian air strikes in southern Syria kill 10’ ( BBC News , 18 January 2024) < https://www.bbc.co.uk/news/world-middle-east-68017376 > accessed 4 February 2024. [12] Chris Liakos, Claudia Colliva, and Dalal Mawad, ‘France issues arrest warrant for Syrian President Assad’ ( CNN , 16 November 2023) < https://edition.cnn.com/2023/11/15/middleeast/france-arrest-warrant-syria-assad-intl/index.html > accessed 4 February 2024.

Anna Gallina is a Legal Consultant at eyeWitness to Atrocities. Julianne Romy formerly worked as a Legal Advisor at eyeWitness to Atrocities (2021-2023). Valmira Gkioni is the Communications Coordinator at eyeWitness to Atrocities.   This article was written in August 2023 and therefore does not include subsequent events or reflect eyeWitness to Atrocities’ work undertaken following this date. Valmira Gkioni : In the past 12 months, more than 160 countries worldwide have witnessed various forms of violence, according to ACLED’s Conflict Index assessment.[1] Some of these conflicts have recently erupted, while others have been ongoing for several years. In this age of the internet and smartphones, social media has become a crucial platform for sharing information and facilitating the distribution and communication of data about atrocities happening globally. Photos and videos depicting human rights violations circulate widely, to raise awareness and, ultimately, seek justice for victims and survivors. The advent of the Arab Spring marked a pivotal moment, expanding the use of smartphones and social media as tools for documenting violence and organising civic engagement.[2] Faced with limited access to towns under attack, Syrian citizens and human rights activists began utilising their mobile phones to live-stream, record videos, and capture photos in an organised manner, showcasing the injustices occurring across the country.[3] Online platforms were inundated with footage of unrest, making the Syrian war one of the most extensively documented conflicts in history, amassing millions of photos and videos.[4] Establishing the authenticity of digital content is crucial for it to be considered admissible as evidence. While mobile devices can capture metadata essential for verification, such as the date, time, or location of capture, both this information and the footage itself are susceptible to alteration. Additionally, major social media companies and messaging apps, including Facebook, X (formerly known as Twitter), Signal, and WhatsApp, automatically remove metadata from footage for privacy reasons.[5] Consequently, images and videos depicting atrocities are often challenged in their admissibility as evidence in court. The eyeWitness to Atrocities App was developed to address this challenge by safeguarding the integrity of footage and streamlining the verification process. The app employs advanced control capture technology, embedding unmodifiable metadata from the moment of capture to ensure the authenticity and provenance of the digital content so that it will be admissible for use in court. One of the app’s crucial features is the protection of the chain of custody, empowering human rights defenders and civil society organisations to capture, preserve, and utilise information on international crimes and human rights violations effectively for accountability purposes. Nevertheless, no application or technological tool operates in isolation to attain justice. Recognising this, CJLPA  has engaged in this discussion with eyeWitness’s legal advisors to comprehend thoroughly how the eyeWitness App has been and is presently employed in documenting war crimes and other atrocities. The aim is to gain insights into the essential steps required for footage to be admissible as evidence in court. To achieve this understanding, CJLPA concentrates on three specific contexts that have been central to eyeWitness’s efforts in recent years: Ukraine, Palestine, and Nigeria.   CJLPA : eyeWitness to Atrocities—what is it all about? Julianne Romy : ‘A picture is worth a thousand words’ as the adage goes. True, except when it cannot be authenticated.  In the early 2010s, the surge of social media platforms and the widespread adoption of smartphones ushered in a revolutionary shift in global interaction. Rapidly evolving into a potent tool for activists and ordinary citizens alike, these platforms facilitated the sharing of footage depicting human rights abuses and violations that might otherwise escape notice in traditional media. As such content proliferated on social media, investigators worldwide confronted a pressing question: could this footage withstand scrutiny in a court of law? After four years of dedicated research, what began as an idea in the mind of Dr. Mark Ellis, Executive Director of the International Bar Association, materialised into a comprehensive, free mobile camera app. This app empowers users to capture verifiable footage of atrocity crimes, deemed admissible as evidence in investigations and trials. In 2015, eyeWitness to Atrocities was officially launched. Uniquely crafted by legal professionals, the eyeWitness to Atrocities App stands as the sole system designed for human rights defenders to collect, verify, and safeguard digital evidence of atrocity crimes, including war crimes, crimes against humanity, and genocide. In essence, the app leverages device sensors to embed metadata, authenticating the date, time, location, and integrity of the images and sound captured by users. The footage and accompanying metadata are secured in the app’s gallery until the user uploads them to a secure server, controlled by eyeWitness to Atrocities and hosted by LexisNexis. This meticulous process establishes a trusted chain of custody, verifying the time and place of capture, confirming that the footage has not been edited, and tracing the footage’s journey from its inception to its storage on the server.[6] Anna Gallina : While the technology underpinning the App is sophisticated, its rationale is straightforward: the authenticity of footage captured with the App would be unquestionable to any judge, whether at the domestic, regional, or international level. No government across the globe could dispute that those human rights abuses and violations occurred on their territory. The power of the footage, devoid of any potential misinformation campaign, stands as an irrefutable testament to the truth, contributing significantly to the evidentiary puzzle crucial for securing a perpetrator’s conviction. An organisation was established around the App, ensuring comprehensive support for users. Whether requiring assistance with investigation planning, technical support, or an intermediary to facilitate connections with accountability mechanisms or transfer information collected, the team stood ready to assist. As the organisation expanded, it assumed a more proactive role, emerging as advocates for the captured footage. This involved close collaboration with partners and the formation of coalitions with a diverse range of experts, including other human rights organisations specialising in specific areas, military analysts, and university clinics. The aim was not just to place the footage in the hands of investigators but also to persuade them to take on cases.   Now, nine years into eyeWitness’ existence, the daily reminder is clear: there is no universal approach to accountability. The myriad forms it can take depend on factors such as the context of the crimes, political climate, public pressure, and, naturally, the availability of mechanisms.   CJLPA : In the past 18 months, Ukraine has become one of history’s most documented wars. Did this conflict have an impact on international criminal justice? And how has the work of eyeWitness been affected? AG : On 24 February 2022, Russia’s full-scale invasion of Ukraine seized the world’s attention, prompting swift international response. Within a week, the International Criminal Court (ICC), backed by unprecedented support from member States, initiated an investigation.[7] Simultaneously, the United Nations Human Rights Council established an Independent International Commission of Inquiry on Ukraine (UN CoI on Ukraine),[8] and Ukraine, with the backing of 45 participating States, invoked the Moscow Mechanism of the Organization for Security and Co-operation in Europe (OSCE) to establish an expert mission.[9]  Subsequently, a Joint Investigation Team was formed among Lithuania, Poland, and Ukraine, with Eurojust’s support,[10] later expanding to include four additional national judicial authorities and the participation of the Office of the Prosecutor at the ICC.[11] Discussions also commenced on the potential establishment of a special tribunal to investigate and prosecute the crime of aggression by the Russian Federation against Ukraine. The wheels of justice were in motion, and it appears that the upcoming decade of international criminal justice will significantly revolve around the war in Ukraine. Simultaneously, domestic-level investigations swiftly commenced, with the Office of the Prosecutor General (OPG) of Ukraine registering over 105,000 instances of alleged war crimes between February 2022 and September 2023.[12] What sets Ukraine apart is the unique collaboration of various mechanisms and organisations pooling their efforts to collect and analyse information for accountability. Notably, there is a concerted effort to preserve evidence of crimes as the rebuilding of destroyed infrastructure progresses. In a departure from practices in other regions, the OPG of Ukraine actively encouraged ordinary citizens to document crimes and submit evidence to a newly established database. Eventually, the OPG endorsed the use of the eyeWitness to Atrocities App and formalised cooperation by signing an agreement with the International Bar Association, granting the OPG access to footage captured with the App.[13]    This marked a significant milestone for eyeWitness to Atrocities. Although the App had been in use in Ukraine since 2017,[14] Russia’s full-scale invasion led to a dramatic surge in the volume of footage received by eyeWitness. In a matter of weeks, the App saw downloads from civilians, civil society organisations, law firms, and commercial entities. In less than eighteen months, users of the App contributed over 42,000 photographs, video recordings, and audio files from Ukraine to our server, tripling the cumulative footage received since the App’s inception in 2015. The scale of damage and destruction across Ukraine became evident, leading to unprecedented demands from accountability mechanisms for footage captured with the App.   CJLPA : In the more than 40,000 photographs, video recordings, and audio files you received from Ukraine, what stood out as alarming?  JR : We promptly observed that a majority of the captured footage originated from densely populated areas, often in close proximity to critical civilian infrastructure, such as healthcare facilities. According to international humanitarian law, medical personnel, units, and vehicles are entitled to specific, enhanced protection, mandating that they are protected by all parties involved in an armed conflict. While attacks on healthcare have been pervasive in armed conflicts worldwide, resulting in severe short- and long-term consequences for populations, they are seldom prosecuted. Armed with this preliminary mapping, we reached out to Physicians for Human Rights, an organisation dedicated to documenting and pursuing accountability for human rights violations and other international crimes, with a particular emphasis on healthcare. Now, eighteen months since the commencement of the full-scale invasion, we have forged partnerships with four additional civil society organisations—Insecurity Insight, the Media Initiative for Human Rights, Physicians for Human Rights, and the Ukrainian Healthcare Center—each contributing unique expertise. Together, our collaborative efforts aim to raise awareness about attacks on healthcare facilities and workers in Ukraine. By leveraging a combination of information derived from open-source channels and confidential sources, which encompass witness and victim testimonies, along with footage captured through the App, we have compiled and submitted the outcomes of our collective efforts to established mechanisms at both domestic and international levels.[15] Our endeavours have culminated in the publication of a comprehensive report,[16] the launch of an interactive map that is regularly updated to document attacks, [17] and a sustained advocacy campaign to prioritise accountability for assaults on healthcare. Additionally, we extended our mapping efforts to encompass the damage and destruction of various other civilian infrastructures, such as housing, food-related and agricultural facilities, energy-related installations, schools, religious sites, and other cultural heritage buildings. Throughout this process, we cultivated collaborations with specialised organisations, benefitting from their expertise in open-source research and military analysis. Notably, certain preliminary findings have been incorporated into a submission to the UN CoI on Ukraine, focusing specifically on the city and its environs of Chernihiv in north-eastern Ukraine.[18]   CJLPA : Let’s talk about other contexts where eyeWitness has been active in the past few years. What are some of the challenges you have encountered? AG : One of the many barriers that survivors of atrocities need to face is the relatively few avenues that are available for justice. Even when such avenues exist, at least at the international level, there are contexts in which mechanisms struggle to have access to the countries where the violations are taking place. A striking example in this sense is Palestine. There are currently multiple international bodies focussing exclusively on what is taking place in the country, such as the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 (Special Rapporteur on the oPt) and the most recent United Nations Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, set up in 2021 to investigate alleged violations of international humanitarian law and abuses of international human rights law.[19] Judicial mechanisms are also involved in examining the situation in Palestine, with the International Criminal Court conducting an ongoing investigation[20] and the International Court of Justice being recently petitioned to provide an advisory opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.[21] However, the complexities of the geopolitical landscape contribute to the obstacles survivors face in accessing justice. For these mechanisms to effectively carry out their mandate, a crucial factor is their ability to access the country, a privilege almost consistently denied to them. To illustrate, despite receiving an invitation from the Permanent Observer of the State of Palestine to the United Nations Office and other international organisations in Geneva, the Special Rapporteur on the oPt was unable to visit the country before her latest country report.[22] Similarly, the Commission of Inquiry also mentioned the ‘lack of cooperation on the part of Israel, along with its refusal to allow entry into Israel and to permit access to the Occupied Palestinian Territory, despite the desire of the State of Palestine to allow the Commission to visit’.[23] In such situations, documentation by human rights defenders, civil society organisations, journalists, activists, and ordinary citizens becomes even more crucial. They are the sole entities with immediate access to the crime scene, victims, and witnesses. Our role as legal advisors transforms in these instances: we must ensure that these individuals and organisations receive support and protection, and that the valuable information they gather reaches the attention of actors capable of advocating for change at the international level.   CJLPA : What is one of the most alarming issues we are witnessing in Palestine? AG :  In the context of Palestine, a pressing concern revolves around the widespread demolition of Palestinian residential buildings, livelihood-related structures, and critical infrastructure—a longstanding feature of Israel’s actions throughout the country. Of particular note is the alarming targeting of schools. The most recent instance at the time of writing was the demolition of an elementary school in the village of Ein Samiya on 17 August 2023, just days before the new school year. Approximately 58 schools across the West Bank now face the imminent threat of demolition. [24]  Special Rapporteurs assert that these systematic practices, tied to the appropriation of occupied land, the transfer of part of the Israeli population into such areas, and the ensuing forcible transfer of Palestinians, amount to ‘domicide’. [25]  These actions impact a broad spectrum of human rights, including the right to adequate housing, privacy, family, and home, as well as the peaceful enjoyment of possessions. They also infringe upon the rights to life and security of persons, health, water, livelihood, non-discrimination, education, and the overall enjoyment of human rights by Palestinians, including children. [26]  Under specific conditions, these practices may constitute violations of international humanitarian and criminal law. While the aforementioned practices have been widely reported on by soft-law mechanisms and may also potentially be amongst the crimes investigated by the International Criminal Court,[27] mechanisms—due to their mandates or jurisdiction—tend to focus on state responsibility or individual criminal liability, at the risk of leaving one of the major actors involved untouched: corporations. CJLPA : Holding corporations accountable is a challenging task. How can this be done?  AG : Business enterprises are not exempt from human rights standards. Even in cases where States fall short of their obligations, companies are obligated to uphold human rights. This responsibility includes refraining from violating the rights of others and actively addressing any adverse impacts they may generate. Although guidelines such as the UN Guiding Principles on Business and Human Rights[28] and the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises (OECD Guidelines)[29] clearly outline these expectations, there have been few court cases involving corporations implicated in human rights abuses and other crimes worldwide, including in Palestine. In February 2020, the Office of the High Commissioner for Human Rights (OHCHR) released a report, identifying 112 ‘business enterprises involved in certain specified activities related to the Israeli settlements in the Occupied Palestinian Territory’ that raise particular human rights concerns, such as the supply of equipment and materials facilitating the construction and expansion of settlements, the wall, and associated infrastructures and the supply of equipment for the demolition of housing and property, and the destruction of agricultural farms, greenhouses, olive groves, and crops.[30] Amongst these companies was J.C. Bamford Excavators Limited (JCB), a UK-based private limited company whose main activity is the design, manufacturing, and sale of a wide range of excavating, earthmoving, materials handling, and agricultural machines.  Around the same time, we noticed that we were receiving an increasing amount of footage through the App showing the aftermath of demolitions. We also soon realised that construction machinery was often present on the site of demolitions or settlement-related construction. Along with a roster of pro bono lawyers bound by confidentiality agreements, we analysed the footage and filed a written submission to the United Nations Special Rapporteur on adequate housing.[31]  A selection of photos and videos, portraying incidents where JCB loaders and excavators were visible on the scene, was shared with the UK-based charity Lawyers for Palestinians Human Rights (LPHR). Soon thereafter, LPHR filed a complaint against the company with the UK National Contact Point (UK NCP) for the OECD Guidelines.[32] The complaint, partially based on the powerful photographic and video evidence captured in Palestine with the App, argued that JCB’s products and construction machinery were used in the demolition of Palestinian properties and settlement-related construction, thereby breaching five provisions of the human rights chapter of the OECD Guidelines.[33] The UK NCP accepted some of the arguments raised by LPHR and concluded that JCB had failed to observe the OECD Guidelines by not having a policy commitment to respect human rights and not carrying out human rights due diligence in its supply chain.[34] Since this final statement, JCB has adopted a new human rights policy, now available on its website.[35] Whilst the provisions included therein seem to limit JCB’s obligations to identify and address human rights violations that may arise from the (mis)use of its products, the adoption alone of such a document signals a step in the right direction. The resolution of the OECD complaint against JCB underscores the significance of exploring unconventional avenues for accountability. As legal advisors, it is our responsibility to identify alternative paths, as they can be instrumental in promoting substantive human rights protection and holding private companies accountable for failure to prevent violations. CJLPA : How do you handle situations where accountability avenues are limited or non-existent? JR :   There are contexts in which human rights abuses and violations are committed in areas so remote that they ‘fall through the cracks’ of the judicial system, either for lack of awareness of the situation or as a result of the authorities’ inability or unwillingness to prosecute alleged perpetrators. In these contexts, our role as legal advisors revolves around working with our partners to advocate for the creation of mechanisms that will adequately investigate crimes, prosecute alleged perpetrators, and provide redress to the victims.  In Nigeria, for instance, several of our partners use the App to document attacks allegedly carried out by organised and well-armed Fulani ethnic militias against farming communities across the Middle Belt region. Between 2019 and 2023, they captured close to 6,000 photographs and video recordings portraying the immediate aftermath of attacks in remote areas of the region that resulted in the killing of civilians—including children, women, and the elderly—as well as the destruction of houses, food reserves, and other civilian infrastructure. Despite the situation being coined as ‘Nigeria’s gravest security challenge’ by a United Nations Special Rapporteur in 2019,[36] attacks rarely make the news, with the few journalists who cover them facing arrest and detention.[37] When reported on, attacks are often imputed to ‘bandits’ and ‘gunmen’ or generically attributed to ‘the Fulanis’, dangerously conflating Fulani civilians who are also victims of attacks with a violent minority among the Fulani ethnic community that has organised in militias. Unsurprisingly, most attacks go unpunished. In Nigeria, only a handful of attacks have led to formal investigations, the findings of which remain inaccessible to the public, with no prosecutions in sight. As an illustration only, none of the more than 70 attacks documented with the App in the States of Adamawa, Kaduna, Nasarawa, Ondo, and Plateau appears to have led to prosecutions, even where alleged individual perpetrators were identified by victims.[38] The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions similarly noted that whilst official figures reported investigations, prosecutions, and convictions in relation to 90 attacks in the State of Benue between 2017 and 2019, ‘it is striking that no one interviewed [by the Special Rapporteur] had been part of any formal investigation or prosecution process or had access to remedies or reparations for their loss of income’.[39] The ECOWAS Court of Justice—the judicial body of the Economic Community of West African States with jurisdiction to determine cases of violation of human rights that occur in any of its member states, including Nigeria—reached the same determination in relation to the alleged mass killings of the Agatu communities in Benue State that occurred in 2016, ordering Nigeria to investigate the crimes, identify and prosecute perpetrators, and provide redress to the victims.[40]    CJLPA : Have there been any accountability initiatives at the international level? JR : At the international level, whilst the Office of the Prosecutor at the International Criminal Court (ICC-OTP) opened a preliminary examination into the Situation in Nigeria between 2010 and 2020, prosecutions in relation to so called ‘inter-communal clashes’ in the Middle Belt region are unlikely to proceed. From 2013 onwards, the ICC-OTP appears to have focused its investigations on the conflict between Nigerian security forces and Boko Haram only,[41] due to the lack of information as to alleged perpetrators, their degree of organisation, and their involvement in attacks in the Middle Belt region.[42] Victims find themselves without alternative avenues to have their cases addressed. The absence of thorough investigations and prosecutions not only widens an impunity gap, denying victims proper redress but also fosters an environment of insecurity where retaliatory attacks are commonplace. In this challenging scenario, soft-law mechanisms emerge as the sole remaining recourse for victims. By elevating awareness within the highest echelons of the United Nations, there is a hope that, at some point, a Human Rights Council-mandated investigative body may be established. Such a body could systematically collect, and safeguard evidence of crimes committed in the Middle Belt region of Nigeria, mirroring efforts undertaken in response to violations in Ethiopia, Iran, Myanmar, South Sudan, and Venezuela in recent years. This specific option has been the focal point of our concerted efforts, working in collaboration with partners in Nigeria.   CJLPA : How did you process all the photographs and videos captured with the App? JR :   Along with the roster of pro bono lawyers, we reviewed all the footage uploaded to our server, cataloguing, tagging, and objectively describing the material received so that the footage could be searched and further analysed. As part of this work, we looked for any insignias, graffiti, or other written material on the photographs and videos as well as any remnants of ammunitions, listened to and transcribed any audio recordings received as a file or as part of a video recording, and translated the information into English if necessary.  Subsequently, we systematically categorised the footage based on specific themes, including deaths and injuries, internal or forced displacement, destruction of residential properties, damage to crops and agricultural infrastructure, and a category encompassing ‘other damage or destruction’, which included religious, healthcare, and educational facilities. We then organised this data according to location and the date of capture. In many instances, documenters supplemented their footage with user notes, offering essential details such as the date, time, and location of alleged attacks, information about victims and alleged perpetrators, and additional contextual information. This user-provided information served as a foundation for our open-source research, undertaken to corroborate and contextualise the data. We delved into identifying the manufacturers of ammunition, as well as alleged direct perpetrators and accomplices. Through this groundwork, we discerned recurring patterns across the Middle Belt region, particularly in the neighbouring states of Kaduna and Plateau. This included insights into the locations of attacks, the types of weapons reportedly used, similarities in modus operandi among perpetrators, and the responses to attacks by security forces and government officials. Then came the strategy. We mapped all potential mechanisms for advocacy and/or accountability, however unlikely they were to act, including their mandates, procedures, deadlines, past action, or interest in similar situations or thematics, and so on. On this basis, we selected several soft law mechanisms and filed written submissions, including to the United Nations Special Rapporteur on extrajudicial, summary, or arbitrary executions,[43] the United Nations Special Rapporteur on adequate housing,[44] and the Universal Periodic Review Working Group.[45]  Whilst none of these bodies require the submission of information in a format that could meet the admissibility standards of a court of law, information based on footage captured with the App becomes more credible because the footage itself is verifiable. CJLPA : So, what’s next? AG :   We know that justice and accountability take a long time. Investigations into complex human rights violations and atrocity crimes take years, with major challenges surrounding the arrest, detention, and prosecution of alleged perpetrators. For instance, footage captured with the App in 2017 contributed to the conviction of two military commanders for crimes committed five years earlier in two villages located in South Kivu of the Democratic Republic of Congo. There, in May 2012, militias had attacked the villages, burnt them to the ground, and killed 48 villagers, with many others injured. In the immediate aftermath of the attacks, a local organisation had captured footage with standard cameras, but this footage did not contain metadata allowing the location, date, and time of capture to be verified. Five years later, a coalition of international and local civil society organisations, including the legal representatives for victims, partnered with eyeWitness to Atrocities to corroborate some of these photos. New footage was taken with the App, portraying individual and mass graves as well as the injuries of surviving victims. In 2018, a military tribunal in Bukavu, Democratic Republic of Congo, relied upon this footage, amongst other evidence, to convict the militia commanders for murder and torture as crimes against humanity and pillage and arson under domestic law. In Ukraine, Palestine, and Nigeria, footage captured with the App today can result in prosecutions and convictions tomorrow. [1]  ‘ACLED Conflict Index—Ranking violent conflict levels across the world’ ( ACLED Data , July 2023) < https://acleddata.com/acled-conflict-index-mid-year-update/#overview >  accessed 10 March 2024. Note that the ACLED Conflict Index adopts a wide understanding of the concept of ‘conflict’ and includes civil wars, insurgencies, cartel competition, and social violence. [2]  Heather Brown, Emily Guskin, and Amy Mitchell, ‘The Role of Social Media in the Arab Uprisings’   ( Pew Research Centre , 28 November 2012) < https://www.pewresearch.org/journalism/2012/11/28/role-social-media-arab-uprisings/ >  accessed 10 March 2024. [3]  Abdul Raziq, ‘Syrian Citizen Journalists Risk All to Bring Stories from the Frontlines’ ( Center for Media and Democracy’s PR Watch , 28 May 2012) < https://www.prwatch.org/news/2012/05/11507/syrian-citizen-journalists-risk-all-bring-stories-frontlines >  accessed 10 March 2024. [4]  Sema Nassar and Iavor Rangelov, ‘Documentation of Human Rights Violations and Transitional Justice in Syria: Gaps and Ways to Address Them’   ( London School of Economics and Political Science , 2020) 4 < http://eprints.lse.ac.uk/106206/2/Documenting_HR_and_TJ_in_Syria_updated_Nov2020.pdf >  accessed 10 March 2024. See the Syrian Archive at < https://syrianarchive.org/en/data-archive >. [5]  Steven Woodhall, ‘Which Social Media Networks Remove EXIF Data?’ (17 January 2021) < https://stevenwoodhall.com/which-social-media-networks-remove-exif-data/ > accessed 10 March 2024 . [6]  For more information about the App and resources, see < https://www.eyewitness.global/ >. [7]  Statement of ICC Prosecutor, Karim AA Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation ( International Criminal Court, 2 March 2022) < https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-receipt-referrals-39-states > accessed 10 March 2024 . [8] Resolution adopted by the Human Rights Council on 4 March 2022—Situation of human rights in Ukraine stemming from the Russian aggression, A/HRC/RES/49/1 ( United Nations Human Rights Council, 7 March 2022), para. 11 < https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/A_HRC_RES_49_1.pdf > accessed 10 March 2024 . [9]  Ukraine appoints mission of experts following invocation of the OSCE’s Moscow Mechanism ( Organization for Security and Co-operation in Europe, 15 March 2022) < https://www.osce.org/odihr/513973 > accessed 10 March 2024 . [10]  Eurojust supports a joint investigation team into alleged core international crimes in Ukraine ( European Union Agency for Criminal Justice Cooperation, 28 March 2023) < https://www.eurojust.europa.eu/news /eurojust-supports-joint-investigation-team-alleged-core-international-crimes-ukraine > accessed 10 March 2024 . [11]  ICC participates in joint investigation team supported by Eurojust on alleged core international crimes in Ukraine ( European Union Agency for Criminal Justice Cooperation, 25 April 2022) < https://www.eurojust.europa.eu/news/icc-participates-joint-investigation-team-supported-eurojust-alleged-core-international-crimes > accessed 10 March 2024 .  See also ‘Joint investigation team into alleged core international crimes in Ukraine: one year of international collaboration’ ( European Union Agency for Criminal Justice Cooperation , 24 March 2023) < https://www.eurojust.europa.eu/news/joint-investigation-team-alleged-core-international-crimes-ukraine-one-year-international > accessed 10 March 2024 . [12]   Office of the Prosecutor General of Ukraine, ‘Statistics’ [13]  Andriy Kostin, ‘Prosecutor General of Ukraine, endorses eyeWitness to Atrocities app’ ( eyeWitness to Atrocities, 27 October 2022) < https://www.eyewitness.global/prosecutor-general-of-ukraine-endorses-eyewitness > accessed 10 March 2024. [14]   For our work on Ukraine prior to Russia’s full-scale invasion, see   for instance, ‘Using verifiable footage to fight for adequate housing in Ukraine’ ( eyeWitness to Atrocities, 15 March 2021) < https://www.eyewitness.global/using-verifiable-footage-to-fight-for-adequate-housing-in-ukraine > accessed 10 March 2024 ; ‘Behind the scenes: photographing alleged war crimes in Ukraine’ ( eyeWitness to Atrocities, 7 December 2021) < https://www.eyewitness.global/Behind-the-scenes-photographing-alleged-war-crimes-in-Ukraine > accessed 10 March 2024. [15]   See, for example, Ukrainian Healthcare Center, Physicians for Human Rights, eyeWitness to Atrocities, and Insecurity Insight,  ‘Attacks on Hospitals and Healthcare in Ukraine—Joint Submission to the United Nations Independent International Commission of Inquiry on Ukraine’ (September 2022) < https://phr.org/wp-content/uploads/2022/09/UN_CoI_Ukraine_submission_Attacks-on-Health.pdf > accessed 10 March 2024 ;   Insecurity Insight, Media Initiative for Human Rights, Physicians for Human Rights, and Ukrainian Healthcare Centre, ‘Submission to the United Nations Universal Periodic Review of the Russian Federation’ (4 April 2023) < https://phr.org/wp-content/uploads/2023/04/UN-UPR-SUBMISSION-RUSSIAN-FEDERATION-2023.pdf > accessed 10 March 2024 . [16] Insecurity Insight, Media Initiative for Human Rights, Physicians for Human Rights, and Ukrainian Healthcare Centre, ‘ Destruction and Devastation: One Year of Russia’s Assault on Ukraine’s Health Care System’ ( eyeWitness to Atrocities, February 2023) < https://www.eyewitness.global/documents/Destruction-and-Devastation-Ukraine-Feb2023.pdf > accessed 10 March 2024 . [17]  eyeWitness to Atrocities, Insecurity Insight, Media Initiative for Human Rights, Physicians for Human Rights, and Ukrainian Healthcare Centre, ‘Attacks on Health Care in Ukraine’ < https://www.attacksonhealthukraine.org/ > accessed 10 March 2024. [18]  ‘eyeWitness submitted evidence of human rights violations committed in Chernihiv to UN Commission of Inquiry’ ( eyeWitness to Atrocities, 20 October 2022) < https://www.eyewitness.global/eyewitness-submitted-evidence-of-human-rights-violations-committed-in-Chernihiv-to-UN > accessed 10 March 2024 . [19]  For more information, see, ‘Resolution adopted by the Human Rights Council on 27 May 2021—Ensuring respect for international human rights law and international humanitarian law in the Occupied Palestinian Territory, including East Jerusalem, and in Israel, A/HRC/RES/S-30/1’ ( United Nations Human Rights Council, 28 May 2021) < https://www.un.org/unispal/document/ensuring-respect-for-international-human-rights-law-and-international-humanitarian-law-in-opt-and-israel-human-rights-council-30th-special-session-resolution-a-hrc-res-s-30-1/ > accessed 10 March 2024. [20]  ‘Statement of ICC Prosecutor, Fatou Bensouda, respecting an investigation of the Situation in Palestine’ ( International Criminal Court, 3 March 2021) < https://www.icc-cpi.int/news/statement-icc-prosecutor-fatou-bensouda-respecting-investigation-situation-palestine > accessed 10 March 2024. [21] United Nations General Assembly, ‘Resolution adopted by the General Assembly on 30 December 2022—Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem A/RES/77/247’ (9 January 2023) 18 < https://www.un.org/unispal/wp-content/uploads/2023/01/A.RES_.77.247_301222.pdf > accessed 10 March 2024. [22]  Francesca Albanese, ‘Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 A/77/356’ ( United Nations General Assembly, Note by the Secretary-General, 21 September 2022) 2 < https://www.ohchr.org/en/documents/country-reports/a77356-situation-human-rights-palestinian-territories-occupied-1967 > accessed 10 March 2024. [23]  Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, Note by the Secretary-General, A/77/328’ ( United Nations General Assembly , 14 September 2022) 5 < https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/coiopt/2022-10-19/Report-COI-OPT-14Sept2022-EN.pdf > accessed 10 March 2024. [24] ‘Elementary School of Ein Samiya Demolished’ ( United Nations Office for the Coordination of Humanitarian Affairs, 17 August 2023) < https://www.ochaopt.org/content/elementary-school-ein-samiya-demolished > accessed 10 March 2024. [25] ‘UN experts say Israel should be held accountable for acts of ‘domicide’’ ( United Nations Office of the High Commissioner for Human Rights, 13 February 2023) < https://www.ohchr.org/en/press-releases/2023/02/un-experts-say-israel-should-be-held-accountable-acts-domicide > accessed 10 March 2024. [26] See for instance, ‘JCB Off Track—Evading responsibility for human rights violations committed with JCB machines in the Occupied Palestinian Territories ( Amnesty International, November 2021) 11 < https://www.amnesty.org.uk/files/2021-11/JCB%20Off%20Track%20Amnesty%20International%20report.pdf?VersionId=fwDUNXTOtdWIMZWknSwAa9xTg7ZtUNjp > accessed 10 March 2024. [27]  See Office of the Prosecutor, ‘Situation in Palestine—Summary of Preliminary Examination Findings’ ( International Criminal Court, 3 March 2021) < https://www.icc-cpi.int/sites/default/files/itemsDocuments/210303-office-of-the-prosecutor-palestine-summary-findings-eng.pdf > accessed 10 March 2024. Specifically see para. 4 including a reference to the transfer of Israeli civilians into the West Bank and para. 9 specifying that the crimes identified in the summary of findings are illustrative only and that ‘the Prosecutor’s investigation will not be limited only to the specific crimes that informed the assessment at the preliminary examination stage’. [28]  Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ (1 January 2012) < https://www.ohchr.org/en/publications/reference-publications/guiding-principles-business-and-human-rights > accessed 10 March 2024. [29]  ‘OECD Guidelines for Multinational Enterprises’ ( Organisation for Economic Co-operation and Development, 2011) < https://www.oecd.org/daf/inv/mne/48004323.pdf > accessed 10 March 2024.  The OECD Guidelines are recommendations addressed by governments to companies and provide a list of principles and standards of good practice consistent with applicable laws and international standards, including a chapter on human rights which was updated in 2011 to reflect core responsibilities in the UN Guiding Principles. Each state adhering to the OECD Guidelines is required to establish a National Contact Point, tasked with resolving complaints against companies for alleged breaches of the guidelines. The process is non-judicial and may result in mediation or a statement determining whether the company is in breach of the guidelines. [30]  United Nations High Commissioner for Human Rights, ‘A/HRC/43/71: Database of all business enterprises involved in the activities detailed in paragraph 96 of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem’ (28 February 2020) 6 (a) and (c) < https://www.ohchr.org/en/documents/reports/ahrc4371-database-all-business-enterprises-involved-activities-detailed-paragraph > accessed 10 March 2024. [31]   This submission was confidential and there is no public version available. [32]  ‘Complaint regarding the involvement of JCB in human rights breaches in the occupied Palestinian territory, raised by Lawyers for Palestinian Human Rights’ ( Lawyers for Palestinian Human Rights, 10 December 2019) < https://lphr.org.uk/wp-content/uploads/2019/12/Complaint-regarding-the-involvement-of-JCB-in-human-rights-breaches-in-the-occupied-Palestinian-territory-raised-by-LPHR-FINAL.pdf > accessed 10 March 2024. [33]  ibid . [34]  ‘Final statement: Lawyers for Palestinian Human Rights complaint to the UK NCP about JC Bamford Excavators Limited’ (26 October 2021) < https://lphr.org.uk/wp-content/uploads/2021/11/LPHR-JCB-Final-Finalised-statement-Oct-2021.pdf > accessed 10 March 2024. [35]  Max Jeffery, ‘ JCB Human Rights Policy ’ < https://www.jcb.com/dfsmedia/261086efe15a46f5afb95d093ef038ea/56513-source > accessed 10 March 2024. [36]  Agnès Callamard, ‘Visit to Nigeria. Report of the Special Rapporteur on extrajudicial, summary, or arbitrary executions, A/HRC/47/33/Add.2’ ( United Nations Human Rights Council, 1 1 June 2021) 50 < https://digitallibrary.un.org/record/3933167?ln=en > accessed 10 March 2024. [37]  Christian Solidarity International, Humanitarian Aid Relief Trust, and the International Organisation for Peacebuilding and Social Justice , ‘ Breaking Point In Central Nigeria? Terror And Mass Displacement In The Middle Belt’ ( Christian Solidarity International ,   March 2022) 21-22  < https://www.nigeria-report.org/2022/03/24/new-report-terror-and-mass-displacement-in-nigeria-s-middle-belt/ > accessed 10 March 2024;   Anugrah Kumar, ‘ Christian journalist arrested after reporting on violence in Nigeria has case delayed again’ ( Christian Post, 12 September 2022) < https://www.christianpost.com/news/nigerian-christian-journalists-case-delayed-again.html > accessed 10 March 2024. [38]   In this sense, former Special Rapporteur Agnès Callamard noted for instance that two years after the killing of 29 persons in Nkiendoro, Bassa Local Government Area of Plateau State, ‘ none of the survivors had been asked to provide testimonies or to attend trial, if trials did indeed occur ’.  See United Nations Human Rights Council (n 37) 56. In a separate instance, a Judicial Commission of Inquiry was established to investigate a 2019 Kaduna State massacre. While the Commission issued a report to Kaduna State Governor in September 2020, its findings are yet to be made public and no further action has been taken at the State or Federal levels to investigate and prosecute those responsible. See Ben Agande, ‘El-Rufai inaugurates commission of inquiry into Kajuru killings’ ( Vanguard, 8 August 2019) < https://www.vanguardngr.com/2019/08/el-rufai-inaugurates-commission-of-inquiry-into-kajuru-killings/ > accessed 10 March 2024 ; ‘El-Rufai inaugurates Kajuru commission of inquiry’   ( Kaduna State Government of Nigeria, 2 March 2021) < https://kdsg.gov.ng/2021/03/02/el-rufai-inaugurates-kajuru-commission-of-inquiry/ > accessed 10 March 2024 ; Don Silas, ‘Kaduna: judicial commission of inquiry submits report on Kajuru crisis to El-Rufai’ ( Daily Post, 3 September 2020) < https://dailypost.ng/2020/09/03/kaduna-judicial-commission-of-inquiry-submits-report-on-kajuru-crisis-to-el-rufai/ > accessed 10 March 2024. [39]  Callamard (n 36) 66 . [40]  Judgement, ECW/CCJ/JUD/06/19 ( ECOWAS Court of Justice, 26 February 2019) < http://www.courtecowas.org/wp-content/uploads/2019/07/JUD_ECW_CCJ_JUD_06_19.pdf > accessed 10 March 2024. [41]  Office of the Prosecutor, ‘Situation in Nigeria—Article 5 Report’ ( International Criminal Court,   5 August 2013) < https://www.icc-cpi.int/sites/default/files/iccdocs/PIDS/docs/SAS%20-%20NGA%20-%20Public%20version%20Article%205%20Report%20-%2005%20August%202013.PDF > accessed 10 March 2024 ; Office of the Prosecutor, ‘Report on Preliminary Examination Activities (2015)’ ( International Criminal Court , 12 November 2015) 44-51 < https://www.icc-cpi.int/sites/default/files/iccdocs/otp/OTP-PE-rep-2015-Eng.pdf > accessed 10 March 2024 ; Office of the Prosecutor, ‘ Report on Preliminary Examination Activities (2019)’ ( International Criminal Court ,   5 December 2019) 47-52 < https://www.icc-cpi.int/sites/default/files/itemsDocuments/191205-rep-otp-PE.pdf > accessed 10 March 2024 ; Office of the Prosecutor, ‘Report on Preliminary Examination Activities (2020)’ ( International Criminal Court , 14 December 2020) 64-7 < https://www.icc-cpi.int/sites/default/files/itemsDocuments/2020-PE/2020-pe-report-eng.pdf > accessed 10 March 2024 ; ‘ICC Prosecutor, Mr Karim A.A. Khan QC, concludes first official visit to Nigeria’ ( I nternational Criminal Court, 22 April 2022) < https://www.icc-cpi.int/news/icc-prosecutor-mr-karim-aa-khan-qc-concludes-first-official-visit-nigeria > accessed 10 March 2024. [42]  Office of the Prosecutor, ‘Situation in Nigeria—Article 5 Report’ ( International Criminal Court, 5 August 2013) 13-21 < https://www.icc-cpi.int/sites/default/files/iccdocs/PIDS/docs/SAS%20-%20NGA%20-%20Public%20version%20Article%205%20Report%20-%2005%20August%202013.PDF > accessed 10 March 2024. [43]  ‘ eyeWitness and partners file urgent appeal to UN regarding extrajudicial killings in Nigeria’ ( eyeWitness to Atrocities, 15 June 2022) < https://www.eyewitness.global/eyewitness-and-partners-file-appeal-to-UN-regarding-extrajudicial-killings-in-Nigeria > accessed 10 March 2024. [44]  This submission was confidential and there is no public version available. [45]  ‘ Nigeria: Joint submission for the fourth Universal Periodic Review, January-February 2024’ (e yeWitness to Atrocities,  1 August 2023)< https://www.eyewitness.global/Nigeria-joint-submission-human-rights-council-45th-session-universal-periodic-review-upr-2024 > accessed 10 March 2024.

‘Democracy cannot succeed unless those who express their choice are prepared to choose wisely. The real safeguard of democracy, therefore, is education’. Franklin D Roosevelt (1882-1945)   Introduction   The importance of education to democracy cannot be overstated. Central to that education is the interchange of ideas and policies across the political spectrum. Many of the organisations and individuals well placed to deliver that education are bodies known as non-party campaigners ( NPCs ). These are individuals and interest groups who campaign for and against parties, candidates, issues, and policies, without themselves seeking election. Many pressure groups, charities, and trade unions are NPCs (for example, HOPE not hate Ltd and Greenpeace Limited).   Yet the rules governing donations and campaign spending for NPCs are complex and unclear. This may lead to a scenario in which the very people seeking to educate electors are often unable to fully grasp the laws regulating them. This is notwithstanding the fact that the punishments for contravening campaign finance laws are severe.   The importance of transparency and accountability in election finance has been brought to the fore on a number of occasions. Perhaps the most recent internationally is Donald Trump’s ‘hush money’ trial. However, the complexity of the laws in UK may risk making politics inaccessible, in the name of transparency.   Have we gone too far? Has the law become so complex that current and future educators are likely to dismiss politics as more hassle than it's worth?   A broad overview of the regime   NPCs are defined by the Electoral Commission ( EC ) as ‘individuals or organisations that campaign for or against a candidate at an election or referendum without standing as a candidate themselves’.[1] The Political Parties, Elections and Referendums Act 2000 ( PPERA ) refers to such organisations or individuals as ‘third parties’. There are two types of NPC—a local campaigner and a general campaigner.   The laws regulating the spending of NPCs, in the lead up to an election or referendum, are far from straightforward. The law is spread across three statutes: primarily PPERA and the Transparency in Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 ( TUAA ). If an NPC is campaigning in support of a specific candidate, it must also comply with its obligations under the Representation of the People Act 1983 ( RPA ). TUAA was passed by Cameron’s Conservative government, following a series of high-profile corporate lobbying scandals. It amended PPERA and introduced the requirement for NPCs to register if they intended to spend more than a certain amount on regulated campaign activities. TUAA was opposed by 160 charities, including the Royal British Legion, Save the Children, and the Salvation Army.   In this article, I outline some of the issues an NPC must consider in the lead up to a general election to give readers an insight into the complexity of the regime, and why so many organisations condemned the further complexity added by TUAA.   1. The regulated period   Central to the law governing the spending of NPCs is the ‘regulated period’. Expenditure is only controlled by the law if it is incurred during the regulated period. The regulated period is 365 days before a general election. This means that all expenditure on ‘regulated campaign activities’, in the 365 days before a general election, must be accounted for. There are limits on how much an NPC can spend during the regulated period.   In the case of a snap general election (as in 2017 and 2019, for instance), the regulated period is applied retrospectively. Money spent by parties and NPCs in the preceding 365 days was liable to be accounted for retrospectively.   Thus, even when an election is neither anticipated nor foreseeable, an NPC may be required to account for its spending. This can cause issues for NPCs who have spent significant amounts on activities that may meet the definition of a ‘regulated campaigning activity’. Even where an election takes place on a predicable schedule, the regulated period will limit the amount an NPC can spend in the lead up to election day.[2]   2. ‘Regulated campaign activity’   To determine whether an activity is controlled by the law, an NPC must decide whether an activity is a ‘regulated campaign activity’. An NPC must consider the list of activities (outlined at schedule 8A of PPERA) and determine whether the activity meets the ‘purpose’ and ‘public’ tests.   The purpose test will be satisfied if an activity can reasonably be regarded as intended to promote or procure the electoral success of (a) one or more political parties; (b) particular parties or candidates that do, or do not support a particular policy; or (c) a category of candidates, by influencing voters to vote in a certain way at the election. Only activities ‘made available to the public’ are regulated. For example, canvassing and market research, or the production of material (all Schedule 8A activities) will be regulated only if made available to the public. The ‘public’ has been given its ‘ordinary’ meaning by the EC.   Only if an activity is (a) listed in Schedule 8A and (b) meets both tests will it be a regulated campaign activity.   The tests are not easy to apply. Taking the example of the public test, the changes to the ways people communicate have blurred the boundaries between what is private and public. To determine whether the test is met, one must undertake an assessment of the tone, timing, context of the campaign, and whether it is a ‘call to action’ to voters.   3. Spending limits   Under PPERA there are four categories of spending limits that NPCs must be aware of:   Registration thresholds. An NPC spending more than £20,000 in England or £10,000 in each of Scotland, Wales and NI must register with the EC. If an NPC fails to register before spending more than £20,000 (or £10,000 in the other parts of the UK), it will commit an offence. The national spending limits. There is one for each part of the UK: England—£586,548; Scotland—£81,571; Wales—£54,566; and Northern Ireland—£39,443. Focused constituency campaigning. Regulated campaign activity which primarily impacts a particular constituency, or constituencies, is known as ‘focused constituency campaigning’. There are limits on how much an NPC can spend in one constituency (£17,553). This can cause issues in light of the attribution rules (see below). Targeted spending. Spending on regulated campaign activity intended to influence voters to vote for a specific party or its candidates is known as ‘targeted spending’. There are limits on a NPCs targeted spending where the relevant political party (whom the NPC is supporting) has not authorised the expenditure. The limits are as follows: England—£58,654; Scotland—£6,157; Wales—£3,456; and Northern Ireland—£1,944.   There is an additional spending limit for campaigns in support of a candidate in a constituency, under the RPA.   4. Attribution rules   The purpose of the attribution rules is to allocate the spending of an NPC on regulated campaign activity to each part of the UK and each constituency in which it has an effect.   The spending attributed to each part of the UK will count towards the spending limit for that part (ie within the national limits). The spending attributed to each constituency will also count towards the spending limit for that constituency (ie it will form part of the focused constituency spending). Therefore, all spending will count towards the limits for at least one part of the UK and at least one constituency. If an NPC is campaigning across the whole of England, Scotland, Wales, or NI, it must attribute spending equally to each constituency in that part. However, if it spends the entire limit for a particular constituency (£17,553), for example, in a swing seat, it will breach the constituency spending limit if it then incurs any other expenditure that it is required to attribute partly to that constituency under the honest and reasonable assessment principle.   The honest and reasonable assessment principle is the ‘guiding principle’ that should be applied in all situations in which an NPC has to apportion spending. It simply requires NPCs to make an ‘honest and reasonable assessment, based on the facts, of the proportion of spending that should be fairly attributed’ to regulated campaign activities (as opposed to non-regulated activities). Once this assessment has been made, the NPC will need to use the same guiding principle to apportion its spending to the correct part of the UK, or constituency, for the purposes of complying with the spending limits. What constitutes an honest and reasonable assessment is not clear, partly because it is subjective and dependent on having fully grasped the law outlined above.   5. Reporting obligations   If an NPC is required to register with the EC and intends to spend more than £20,000 (the reporting threshold) during the regulated period, it must comply with onerous reporting obligations. It must: Report spending on regulated campaign activities in its spending return after the election; and Report donations at three different times. A donation received by an NPC for the purposes of funding its regulated campaign activity will need to be reported if it is over a certain threshold. All NPCs are obliged to submit these reports unless they have declared that they will spend below the reporting threshold. The reporting obligations are as follows: during the pre-dissolution period, an NPC is required to make quarterly pre-poll reports; between the dissolution of Parliament and polling day, it will be required to make weekly pre-poll reports; and after the election, it must report its donations in its spending return.   The content of each report will differ (ie pre-dissolution reports require a report of the total value of all donations with a value between £500—£7,500, whereas post-dissolution reports do not).   To further confuse matters, many NPCs may also be ‘members associations’, and subject to an additional regime in which they are required to report donations received to fund its ‘political activities’. The reporting threshold for an NPC during a regulated period is different to the reporting threshold for a members association outside of the regulated period.   The chilling effect   Grey areas   As is evident from the very brief outline above, the law regulating this area is not black and white. The honest assessment principle in relation to the attribution rules is difficult to apply, as are the purpose and public tests.   Since the law is unclear, a prudent NPC will feel it necessary to consult experienced and expensive lawyers specialising in this area. Therein lies the problem. When faced with the expense that comes with compliance, coupled with the penalties and reputational impact of making a mistake, smaller NPCs may be forced to abandon politics altogether.   Compliance burden   Even when an NPC gets it right (it has registered, made the correct judgments as to which activities meet the relevant tests, and attributed its spending appropriately) it is obliged to make a series of reports to the EC as to its spending and donations. The closer an NPC gets to an election, the more frequent and burdensome the obligations become. It will have to incur further expense to accurately report its expenditure.   Consequences of contravention   In any arena, breaches of the law are newsworthy. If an NPC breaches the law, even inadvertently, it may suffer reputational damage. Organisations engaged in politics stand to suffer more than most, as their opponents will seek to capitalise on any missteps to tarnish their reputation and gain political advantage.   Some breaches of the relevant law will amount to a criminal offence. The penalties range from an unlimited fine to one year imprisonment. For example, in some circumstances, an NPC is required to submit, with its spending return, a statement of accounts. A failure (by the nominated responsible person) to comply with the requirement for a statement of accounts is a criminal offence attracting, on summary conviction, a fine up to the statutory maximum, or six months imprisonment, or on indictment, a fine or one year imprisonment. Other breaches may give rise to both criminal and civil sanctions.   Greenpeace and Friends of the Earth were fined for breaking the rules in the lead up to the 2015 general election. Greenpeace was fined £30,000 for failing to register with the EC, and Friends of the Earth was fined £1,000 for late registration. Interestingly, Greenpeace deliberately failed to register, as an ‘act of civil disobedience’ and to highlight that the law, as it stands, is unworkable.[3] John Sauven, Greenpeace UK’s then Executive Director, stated:   Now Britain is going into a second general election regulated by a law that does little to stop powerful companies exerting secret influence in the corridors of power while gagging charities and campaign groups with millions of members. If the last election is anything to go by it will have a chilling effect on groups trying to raise important issues.[4]    It is for this reason that the House of Commons Public Administration and Constitutional Affairs Committee stated:   ‘The uncertainty about some aspects of Electoral Law leaves even the most professional agents in fear of falling foul of the law through no fault of their own’.[5]   Smaller NPCs   In July 2021, the Committee on Standards in Public Life undertook a review into the law regulating election finance. It acknowledged that   there is nothing wrong with individuals and organisations sending out explicitly political messages in advance of and during election campaigns […] On the contrary, a free society demands that they should be able to do so, indeed that they should be encouraged to do so.[6]   In the context of a proposal to lower the registration threshold, Friends of the Earth reported:   There are many, smaller NPCs where the burden of compliance requirements means they either must stop substantial amounts of work to redirect resources, or simply avoid undertaking regulated activity to avoid the possibility of registering…[7]   In the view of the Committee, campaigning by NPCs should:   ‘be transparent, so that the audience knows who is funding the adverts they see and can assess the credibility of the message; respect the right to participate on equal terms with others; not be dependent on a campaigner’s level of wealth and access to money (that is, it should be open to all) be regulated in a way that is proportionate and administratively practical (campaigners should be accountable)’.[8]   The challenge is to make sure all the above can coexist. At present, they do not.   Transparency is important, but at what cost? How do we improve the law to ensure that transparency does not have the chilling effect of ousting out, or preventing the entry of, crucial participants in democracy?   The Committee recommended that ‘the updating and simplification of electoral law must be seen as a pressing priority for the Government’.[9] With an election on the horizon, it seems this advice has not yet been heeded, leading to ongoing complexity for NPCs. Grace Houghton, Mishcon de Reya Grace Houghton is a trainee solicitor at Mishcon de Reya LLP, due to qualify in September 2024. During her training contract, she gained experience of acting for both individuals and companies in a wide range of areas including commercial litigation (particularly high-profile disputes involving allegations of dishonesty); public law; employment; and education law. In the area of public law, she has advised a number of clients as to the rules governing political donations and campaign finance. She has an interest in the overlap between politics and the law, having studied Politics, Philosophy and Law at King's College London   Mishcon de Reya is an independent law firm, which now employs over 1400 people with more than 650 lawyers offering a wide range of legal services to companies and individuals. The firm has grown rapidly in recent years, showing more than 40% revenue growth in the past five years alone. With presence in London, Oxford, Cambridge, Singapore, and Hong Kong (through its association with  Karas So LLP ), the firm services an international community of clients and provides advice in situations where the constraints of geography often do not apply.  The work the firm undertakes is cross-border, multi-jurisdictional and complex, spanning six core practice areas:  Corporate ;  Dispute Resolution ;  Employment ;  Innovation ;  Private ; and  Real Estate . [1] Electoral Commission ‘UK Parliamentary general election 2019: Non-party campaigners’ (2019) < https://www.electoralcommission.org.uk/sites/default/files/2019-11/Non-party%20campaigner%20UKPGE%202019.pdf > accessed 10 April 2024. [2] George Greenwood, ‘Snap election raises concerns for non-party campaigners’ ( BBC News , 25 April 2017) < https://www.bbc.co.uk/news/uk-politics-39695085 > accessed 10 April 2024. [3] Kirsty Weakley, ‘Friends of the Earth and Greenpeace fined for breaches of ‘unworkable’ Lobbying Act’ ( Civil Society , 19 April 2017) < https://www.civilsociety.co.uk/news/friends-of-the-earth-and-greenpeace-fined-for-breaches-of-unworkable-lobbying-act.html > accessed 10 April 2024. [4] Matthew Taylor, ‘Greenpeace fined under Lobbying Act in ‘act of civil disobedience’’ Guardian (London, 18 April 2017) < https://www.theguardian.com/politics/2017/apr/18/greenpeace-first-organisation-fined-lobbying-act > accessed 10 April 2024. [5] House of Commons Public Administration and Constitutional Affairs Committee (PACAC), ‘Electoral Law: The Urgent Need for Review’ (31 October 2019) 9 < https://publications.parliament.uk/pa/cm201919/cmselect/cmpubadm/244/244.pdf > accessed 10 April 2024. [6] Committee on Standards in Public Life, ‘Regulating Election Finance’ (July 2021) 89 < https://assets.publishing.service.gov.uk/media/60e460b1d3bf7f56801f3bf6/CSPL_Regulating_Election_Finance_Review_Final_Web.pdf > accessed 10 April 2024. [7] ibid. [8] ibid 94. [9] PACAC (n 5) 14, paragraph 41.

Deva Woodly is a professor at Brown University. Her research covers media and communication, political understanding of economics, race, and social movements, focusing on the public discourse surrounding social and economic issues, and how these influence democratic practice and public policy. She is also the author of two books: Reckoning: Black Lives Matter and the Democratic Necessity of Social Movements , and The Politics of Common Sense: How Social Movements Use Public Discourse to Change Politics and Win Acceptance .

Luis Moreno Ocampo is an Argentine Lawyer and prosecutor who played a critical role in the Trial of the Juntas during Argentina’s democratic transition and later went on to serve as the first prosecutor at the International Criminal Court from 2003-2012. He is now a senior fellow at the Carr Center for Human Rights Policy at Harvard University.

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.

Shona Illingworth is a Danish-Scottish artist and Professor of Art, Film and Media at the University of Kent, UK. Her work examines the impact of accelerating military, industrial, and environmental transformations of airspace and outer space and the implications for human rights. She is co-founder with Nick Grief of the Airspace Tribunal ( https://airspacetribunal.org/ ). Recent solo exhibitions include Topologies of Air at Les Abattoirs, Musée—Frac Occitanie, Toulouse (2022–23), The Power Plant, Toronto (2022), and Bahrain National Museum, Manama (2022–23). Illingworth was a Stanley Picker Fellow, is an Imperial War Museum Associate and sits on the international editorial boards of the Journal of Digital War and Memory, Mind & Media . The monograph Shona Illingworth—Topologies of Air was published by Sternberg Press and The Power Plant in 2022 ( https://www.sternberg-press.com/product/shona-illingworth/ ). With over 40 years’ experience as a legal academic in three universities, Nick Grief is now Emeritus Professor of Law at the University of Kent where he completed his undergraduate and doctoral studies. Throughout his career he specialised in public international law, international human rights law, and EU law, with particular reference to airspace, outer space, and nuclear weapons. Nick also practised at the Bar for 25 years, mainly as an Associate Tenant at Doughty Street Chambers, where he is now an Honorary Associate Tenant. He was a member of the legal team which represented the Marshall Islands before the International Court of Justice in cases against India, Pakistan, and the UK concerning the obligation to negotiate in good faith towards nuclear disarmament. This interview was conducted in September 2023. CJLPA: First, I just wanted to say thank you both for taking the time to interview with The Cambridge Journal of Law, Politics, and Art  to discuss your work on the Airspace Tribunal, a revolutionary human rights project that considers the case for the freedom of individuals to live without physical or psychological threat from above.[1] So I would just like to start by asking if you can tell us a little bit about the inception of the idea, and how things have progressed thus far with respect to the work of the Tribunal.   Nick Grief : It sounds crazy, but the germ of this idea originated at a meeting that we both attended at the University of Kent in 2016. It was a planning meeting, and I was at the time Dean for our Medway campus. Shona was there as a senior member of her school, and during one of the breaks we found ourselves sitting next to one another. We didn’t know each other, but we got chatting and discovered mutual interests in human rights, airspace, outer space, etc. And that’s what led us to start talking and thinking about this project. I think that’s probably where it dates from Shona, isn’t it?