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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?

Raji Sourani is a Palestinian human rights lawyer and Founder and Director of the Palestinian Centre of Human Rights. He was an Amnesty International prisoner of conscience in 1985 and 1988, a member of International Commission of Jurists EXCO and IDAL EXCO, and Vice President of the International Federation of Human Rights. Sourani has devoted his career to advocating for Palestinians in both domestic and international courts. His unwavering dedication and passion to the rule of law and the Palestinian cause earned him the Right Livelihood Award in 2013 and is a true testament to Palestinian resilience. CJLPA :   Good afternoon, Mr Raji Sourani. On behalf of The Cambridge Journal of Law, Politics, and Art , we would like to thank you for your time today to discuss your experience as a highly prominent human rights defender, and the challenges faced throughout your career. As Vice President of the International Federation of Human Rights, and Founder and Director of the Palestinian Centre for Human Rights (PCHR), which aims to promote the protection of Palestinian human rights, your award winning work has had a significant impact on the decades-long Israel-Palestine situation. We would like to begin by asking how your life experiences shaped your career and what sparked your passion for your work?   Raji Sourani : In 1967, I was 14 years old. To experience invasion and occupation at that age, and the extent of destruction and imprisonment, surely left a big impact on me. Of course, Gaza was a special situation because the resistance began from day one. Every day since the occupation, we would see martyrs, injured people, houses demolished, and curfews imposed. They destroyed all aspects of life, economically or otherwise. We were subject to curfews most of the time, unable to move in or out of our homes. So it was a difficult environment for years, and I lived through that. In the first year of the occupation, in 1968, my brother was sentenced to prison for three years. Another one of my brothers fled the Gaza strip. Almost on a weekly or monthly basis, our home, like all other homes, used to be raided and searched. I was occasionally stopped, searched, and beaten by the Israeli army myself. But that was our day-to-day life. It was unspeakable, people do not talk about it.   My family and I lived near Shifa Hospital, which was the central hospital in Gaza. Martyrs would be brought there daily—it was difficult to watch. There is never a just or fair occupation, but this was a new part of our life, and we felt the deep injustice—it’s something that lives on your skin. It’s not abstract, you feel it, you know it, you live it, and you cannot ignore it, wherever you are. My father was arrested and imprisoned during the distribution of 1936, during the British Mandate. Then he was exiled—that was stage two. Then my uncle, my brother, and other family members were sentenced to prison. So that was my early childhood under the occupation.   I eventually decided to study law and to go back to Gaza to be part of the resistance against the occupation. I studied in Beirut and Alexandria, I graduated in 1977, and I came to the occupied territories. I was arrested for the first time two years later, in 1979. I used to believe that torture was only physical, but after my arrest, I discovered how naïve my view was, as I did not always have cuts and bruises as marks of abuse. What was practiced on me was moderate physical and psychological pressure. That means you are made to wish to die, every day, hundreds of times, without a need for physical harm. For example, this can be through sleep deprivation for days while being kept standing, handcuffed, and being subjected to hours-long cold showers. In some other cases, you would be forced into what is called a tomb, with wet clothes. The guards would turn on the fans and you begin to shiver rigorously, and they leave you there for a few days. It comes to a stage where you cannot distinguish from what is real and what is imagined, and the guards will simply inform you that if you want to rest, you would have to confess to the allegations made. After standing for four days I decided to sit on the floor because I could not stand anymore. They began to kick me so I stood up the first and second time, but the third time I was not able to. I told them I was sick and cannot stand anymore. The officer insisted I confess to get some rest. I refused and told him ‘You are blackmailing me. You are compromising my health. This is racist, this is fascist’. Normally, I would never speak with that kind of language to an authoritative figure, but I was totally unbalanced. He began to slap me in the face and body, spat on my face, many times. These were the more trivial examples of the torture they practiced—I can go on for hours about other techniques. This interrogation lasted seven days.   I had also observed the relationship between the Secret Services, the police, the prosecutor, and military judges. It is a vicious circle, as any opportunity to appeal the torture is pointless because they do whatever they please. When you’re asked to repeat your confession to the police, the police ask ‘Would you like to say what you told the Secret Service? And if you don’t, then I’ll send you back to them’. You’re forced to confess and sign the statement, and then, in Court, the military judge or prosecutor would ask ‘When giving your statement, did the policeman torture you or not?’ Technically, the policeman himself did not physically torture me, but all the dirty work had already been carried out, where I had been threatened with the consequences of not confessing. You think of the 87 days under interrogation, then you think ‘It’s alright, I cannot tolerate that anymore’. It is a vicious circle that all those in charge are aware of and are in agreement with; that is why the Israeli legal system acts like a legal cover for organised crime.   After my personal and eye-opening experience as a prisoner in Israeli prisons and learning about how inmates are truly treated, I decided to focus my work on defending political prisoners and victims of all sorts of crimes such as war crimes, human rights violations, house demolitions, expulsion, torture, death, and death caused by torture. I want to make it clear that I do not believe that only through a legal system would we achieve dignity or justice for Palestinian prisoners or victims. But as the Americans say, you have to use the system effectively. So, you may firstly minimise the damage—as lawyers, we have to respect the rules of the Court, but the Court too, whether they like it or not, have to respect the submissions made by a professional lawyer. Secondly, being a lawyer meant that we were first-hand eyewitnesses for this era, and these are crimes that should be documented. We were reading and documenting all these crimes ourselves. Thirdly, we wanted to challenge the notion that Israel had a fair and just legal system. During my time in prison, I decided to comprehensively study the Israeli military orders with no exception—all of it—in addition to the Defence (Emergency) Regulations of 1945, the Geneva Conventions and its commentary, and so on. We had evidence that no Israeli perpetrators can be held accountable within the Israeli legal system, despite utilising the entire legal system from the military courts in Gaza to the Israeli High Court of Justice.   I was the one of the first of the younger generation at the time to fight the occupation through challenging the Israeli legal system itself, and I think many young lawyers followed after that. There was an influx of young lawyers taking part in such resistance at the time. Another important point is that we never agreed to any plea deals. The Israeli court system, similar to the American system, allows for plea bargains, but we decided to defend every single case because every single individual deserve justices for his or herself. We wanted to exhaust the Israeli legal system and did not want to make their life easier by agreeing to a plea deal.   So all those experiences shaped my career trajectory—the experience of the occupation, imprisonment, torture, and learning about the extent of the injustice and degrading treatment within Israel.   CJLPA :   Thank you for sharing your story and your experience with the occupation from its early days, in addition to your unique perspective on both sides of the law. We are aware that the ICJ has already condemned Israel for essentially committing crimes of apartheid against the Palestinian people. You mention the corruption of the Israeli system, and we wanted to ask, at the domestic level, what laws, procedural rules, or policies have the Israeli state put in place that would prevent Palestinians from achieving justice? Do you have an example of a difficult case that you have worked on previously?   RS : First, I would advise you to read a joint report we [PCHR] published with B’Tselem .[1] It’s called Unable and Unwilling , and it particularly focuses on the Great March of Return which we utilised as a solid example of Israel’s lack of accountability. The Great March of Return consisted of very, very peaceful demonstrations taking place in five designated areas on the borders of Gaza, to protest the blockade. Now, the blockade itself is a human rights violation, and we previously tried to challenge it at the Israeli High Court of Justice. The Israeli High Court of Justice decided that ‘Nobody should be worried about a famine in Gaza. The blockade would not create a famine as we are counting how many calories the Gazan people are to consume, and we would never allow that to create a famine’. We did not complain of a famine—it is blatant racism to admit, publicly, that they are counting how many calories people may consume every day. Of course, we were outraged and we were angry, but what other means do we have at hand?   We challenged this issue in Court, but as usual, we failed to achieve any justice in this regard. Now, we provided examples of how many Palestinian people were dying because they had been denied adequate care in Israel, we showed them how students’ futures were destroyed because they were unable to study and enrol themselves at universities. We showed them how Israel, through the blockade, controlled what we eat in Gaza, how we dress in Gaza…you know, when it comes to what we eat, they make decisions on specific details, such as whether we eat long or short forms of pasta, the type of sweets we consume and where they come from, specific colours of things. They just control everything and our lives, and you’re talking about more than 2 million people. We are not allowed to import, to export, there is no freedom for movement for goods nor for individuals. We are not allowed to interact with the outside world, not even with the West Bank or Jerusalem.   With the Great March of Return, the Palestinian people decided to collectively demonstrate against all that. Now, from the minute the protests were declared and before they could even go ahead, Israel declared that they were going to allocate snipers all over the Gaza strip borders, and any individual coming close to the borders will be considered a target. Honestly, we did not think that they would seriously shoot and kill innocent people, especially if it were children who would not threaten the life of a soldier or army officer. Large groups of people showed up at the peaceful demonstrations—there were tens of thousands, if not hundreds of thousands, of people in these five designated areas. People all around, even around me, were dropping like flies, being shot and killed. They were shot in the head, in the chest, even if they were 200 or 300 meters away from the fence. It’s your lottery number—you would not have to do anything to be targeted. People would not be shot in their knees or in their thighs, no, we are talking about direct sniper bullets to the head, and heart area, and so on. Every single shot was very deliberate and intentional.   So, as recourse to these actions, there is a right to submit a complaint to the American military Attorney General within 60 days. So we build a first-class legal file which includes all the relevant evidence, our lawyers take affidavits from the victims or the eyewitnesses and build a map and story of what happened. We translate the file documents and we send them to the Attorney General. If the complaint is not submitted within the 60 day period, it would be voided and there would be no investigation. If you do abide by the limitation period, they agree to look into the complaint. At the end of each complaint, we write one last sentence, ‘If you require further information, evidence, or eyewitnesses, please let us know and we will ensure our best endeavours to provide such evidence’. The Attorney General’s office do not actually investigate the case, they send it to the army—there is an army unit which deals with the military investigation. They assume that if they do not provide an outcome within a month, a year, or two, then we would forget about it. We nonetheless keep sending memorandums, notes, we keep calling them, and most of the time they respond with the following: either there is no case to answer, or the actions were carried during a military operation and anything carried during a military operation is deemed absolutely legally legitimate, or they would say ‘Well, unfortunately, the army found this file does not exist, they lost it. Perhaps we can compensate you for your lawyers’ fees, but nothing else’.   I’m talking about hundreds of cases, thousands of cases, that I have represented throughout the course of years, and it just does not work. So, this report is precisely aimed at those who question why we had to resort to universal jurisdiction and the ICC. This is the reason—we exhausted all legal remedies within the Israeli legal system, and all we found is a legal system that provides full legal cover for organised, systemic war crimes. An entire family of 22, they honestly had nothing to do with occupation, and the bomb dropped on them, out of the blue, just like that, none of them exist in seconds. You legally challenge these actions, you provide all evidence needed, you ask the authorities to provide the basis and reasons for why they did that. The answer is collateral damage, just as simple as that.   I can tell you about the last offensive attack in May [2023]. I was with my dentist at seven-thirty in the evening. He was a friend and my doctor. We parted ways at 15 to two in the early morning. He was sleeping. His wife was a doctor too. His son should have been graduating this year as a dentist. The father, the mother, and the son, the three doctors were gone just like that, they were killed with GPU 39 rockets. Allegedly, four of the rockets needed to penetrate the ceiling in order to target somebody below their apartment. Yet again, a legal complaint was issued in this regard and they say, ‘Well, every target was given approval by the Israeli legal advisors in advance of the operation’. So, the Israeli military legal adviser involved in approving the basket of targets before the war began, and during the war—how can he be the one to investigate my complaint on the war crimes, when he is the same person who authorised these acts to assassinate and kill innocent civilians in the first place?   We represent neither Fatah, nor the Jihad, nor Hamas. What applies to them are different rules of engagement. We defend entirely civilian people, but Israel knows neither international law, nor international humanitarian law, nor human rights. They recognise one thing: their own laws, and their own laws are the laws of occupation. And the rules of the occupation are the rules they made and tailored as a means to all their ends, without accountability. Even Israel’s open-fire regulations appear to have no limits. What are the rules of engagement of the open-fire regulations, when children, working women, young women, and civilians are being killed? We have the right to know what the army is doing and what they can do, but Israel would not be able to tell you where the limits are, nor would they care. So, in summary, not only does Israel have military orders, internal regulations, internal mechanisms, in addition to laws designed to protect the entire legal and political apparatus, but there is somehow no recognition of any international law. If you are an Israeli Jew, you have superiority, you can have justice and dignity within the Israeli legal system. If you are a Palestinian, Muslim, Christian, atheist, even Druze, no, you do not have such privilege and legal protection, unfortunately.   CJLPA :   Based on your difficult experience with achieving justice in the domestic Israeli legal system, you founded the PCHR organisation in 1995 and worked with other international bodies to achieve justice for Palestinians. You touched on the principle of universal jurisdiction earlier, which the PCHR previously applied. Can you walk us through how you have utilized this principle and what challenges you faced, for example, in the cases of Tzipi Livni and Doron Almog?   RS :   As previously mentioned, we have not had a victory and justice for Palestinians achieved within the Israeli legal system. Now, one of the pre-conditions to utilise universal jurisdiction, or the ICC Rome Statute, is whether national remedies have already been exhausted. The legal remedies here, in the case of Israel, mean the laws of occupation. If this condition is not satisfied, you have no right to use universal jurisdiction, or the ICC. Unless—and the law makes this very clear—the legal system cannot be accessed. Now, the Israeli legal system was preventing us. I mean, we want to use it, but we are unable to. We cannot use it anymore.   The concept of universal jurisdiction really shone through in the Pinochet case—it was a landmark case for ourselves and our colleagues from Latin America, countries such as Argentina and Chile. It was big news in our legal careers. It was a real source of inspiration, that this legal mechanism can work. If it worked in the Pinochet case, then we had to invest our best efforts to successfully apply it. At the time, I did not realise that it was so complicated, but the principle was there. We have friends with whom we have very good professional and personal relations, in Switzerland, France, UK, Spain, US, even Auckland, South Africa, Sweden, and so on.   So we decided to use the principle of universal jurisdiction and use it effectively. We issued the first three cases in Switzerland and worked with some Swiss lawyers. I think the cases were legally perfect, very solid, very strong, and we had a fantastic legal team working on it. But in three months, the Swiss Parliament, Federal Parliament, decided to change the laws. They changed the law, in a country like Switzerland, because of three cases we represented. That indicated that our cases were stronger and more effective than we realised. People were taking in what we were doing. It actually motivated us further. We thought maybe Switzerland is a very special place, and that’s why they blocked the case politically, but not legally. So we were unable to apply universal jurisdiction in Switzerland at the time, this was in early 2000.   We then thought of applying universal jurisdiction in London, where we represented two cases. One was against Shaul Mofaz, the Defense Minister at the time, and another against Doron Almog, the military commander of the Gaza strip.   In Almog’s case, we requested the Court not to leak the outcome to anyone except the body responsible for enforcing the order. We provided the enforcing body the Court Order details which included the flight number and the time of arrival to Heathrow. It all seemed to go according to plan, but some reported seeing him going back to the aeroplane even after all other passengers had left. The Israeli media reported that Almog received a message not to leave the aeroplane otherwise he would be arrested. He was not arrested for this reason, and the doors of the aeroplane closed and Almog flew back to Israel.   After the Mofaz and Almog cases, the laws began to change. Not only is the accused’s physical presence required for a warrant, but also a special police committee has to be allocated and the onus was on us to find such committee. In addition, they asked for a special committee in the prosecutor’s office who would decide on the case. So it’s two additional levels. And we nonetheless provided good evidence to apply universal jurisdiction even with these conditions, to issue a warrant of arrest in Tzipi’s case. At the first attempt of applying universal jurisdiction, although we managed to get a warrant for her arrest, by a miracle, I mean, she left the country although she was meant to be arrested. And she left London through the back door, for diplomats, not for ordinary people. I think she left in a special manner, with MI5 or MI6.   After that, it was declared that even if all the conditions apply to the accused in the UK, diplomats can employ something called a special mission letter which essentially means they cannot be arrested so long as they are on such ‘special’ diplomatic mission. Accordingly, Tzipi or any other Israeli diplomat coming into the UK, the special mission letter is more than enough to protect them, to say ‘I’m here on a special mission from the Israeli government, and here is a piece of paper’, just like that. So that was the way the UK has provided full, legal, and political immunity to war criminals. Imagine, I mean, if Russia did that for its wanted victims. What will happen? This is totally unfair, and I would even say illegal—it’s essentially the European state providing legal cover for war criminals. I did not understand why they were so worried about the court. I mean, this is not a Palestinian court, it is the British legal system. If the accused is truly innocent, they are easily able to appeal against the decision and they would be free to go. But no, even an arrest was not possible to enforce.   In Spain, what had happened was much more critical. We issued a case there, we had great hopes and we invested our best efforts to ensure the arrest at the National Court of Spain. We also had the Pinochet case as precedent. I met with the judge recently in Buenos Aires. He told us that what had happened was that there was incredible pressure on judges by the executive branch. You can see how the system works in Europe, the continent with its supposed values, standards, with its rule of law. This is Europe, I’m telling you Europe provides full, legal, and political immunity for war criminals even when their crimes are proven in their courts. Not in Palestinian courts, not in Ouagadougou courts, no, this happens within the British system, within the Spanish system, within the Swiss legal system.   We managed to get a decision against six of the Israeli leaders, military and security, including Binyamin Ben-Eliezer, who was the Minister of Defense, in addition the officer in charge of strategical planning in the Israeli army, the Military Commander of Gaza, and so on. After the decision was made, Mr [Miguel Ángel] Moratinos said, ‘I apologise on behalf of my colleague’, the Foreign Minister at the time. ‘I apologise to the Israeli government, and we promise you that this will never happen again, and we will make all the necessary changes in Parliament to guarantee that this will never happen again’. This was in around February or so, and in December a decision was issued by the Legislative Council of the Parliament which provided full legal immunity to the Israeli leaders. So they dropped our case, although the law does not usually apply retroactively. The case outcome had already been decided, it should not be voided. This decision was meant to be implemented.   Anyway, these are a few good examples to show how the legal cases evolved, and how Europe actively blocked us from holding accountable any Israeli suspected war criminal. If it was an Iraqi, an Algerian, Sudanese, Syrian, he or she would be arrested the same day. An Israeli, however, that would not happen. Some individuals apparently have very cheap blood, very cheap dignity, whilst others are holy. So that was one of the lessons learned from these experiences.   We kept trying, we attempted issuing a case in South Africa. Tzipi cancelled every trip to South Africa for that reason. We were able to do it in Auckland, as well, in New Zealand. There was a warrant waiting for Bogie [Moshe Ya'alon] when he landed there, but for political reasons this also was not implemented. We came to the conclusion that we really wanted to continue and keep trying, but it was too much work, too much investment, too much money, too much time being consumed. There are many people who are involved in this, and each nitty gritty detail had to be thought of. It’s not just Raji Sourani, it’s not five or six or seven or 10 or 15 people, it’s many more, who are all involved in a very orchestrated manner.   That is why we then began to think of the ICC more seriously as an avenue for justice. I knew the ICC since its infancy. At the time, I was the Vice President of the International Federation of Human Rights, and board member of the ICJ in Geneva, two bodies involved in the drafting of the Rome Statute to the Human Rights Council. We followed all the discussions and deliberations between Geneva, New York etc, and we witnessed how the Israelis and the Americans intervened, especially with regards to the retroactivity issue and other elements. Anyway, once the Rome Statute was eventually enacted it was a big celebration—we considered it as an ideal tool for achieving justice, and it was a form of accountability for individuals, not against a state, so in theory the Court should not be as hypersensitive when it comes to exercising its powers.   We attempted to engage with the ICC in 2006, or 2007 and it did not work. We attempted once more in 2008, it did not work either—we decided to speak with the prosecutor then, Ocampo. We had a few meetings with him, and then Oxford decided to have a meeting for the people involved in this, namely the prosecutor of the ICC, Al Haq, PCHR, and Human Rights Watch. The meeting was set in Chatham House. It is a very nice and unique place, but the discussion was so ugly. I insisted that he provides one reason, one legal reason, for what is happening. He said, ‘I have to be very frank. At some stage, if the Americans don’t agree on taking on a case, I would not work on it’.  I said, ‘You are meant to be the global guardian of justice. You are the legal conscience of victims across the globe. You are our backbone, and you are telling me, if the Americans do not give you the green light then you’re not going to move anywhere. I mean, shame on you, I mean, how can you accept such words coming out?’ That just goes to show how tough and bitter the discussion was. It was unforgettable for me. I mean, in such a sensitive institute, to have such quality of people who are responsible for ensuring justice. It is a total shock.   We did not give up, we have no right to give up. We have to keep the fight. The best scenario for our opponents is that we decide there is nothing further to do and to move on with our lives. But I don’t trust the system. No, keep challenging them, keep reminding them how ugly they are, how racist they are, how they are liars, how the colonial mentality lives deep in their mind. And that is why we kept asking the Palestinian Authority [PA] to request to apply the four conditions of jurisdiction, and we managed to do that in 2012, but unfortunately, it seemed there was a genuine threat by the US and Europe not to sign and ratify the Rome Statute. In 2014, we thought ‘Fantastic. This is a golden opportunity’. I made a very orchestrated campaign against PA, during the war. I said, if the Palestinian leadership does not defend the blood, the souls and dignity of Palestinian people, they are not legitimate. And I said that on Palestinian TV during the war, while people were being killed in Gaza, like flies, literally, I mean, we were bombarded by rockets, hundreds of them, and the entire city was shaking from the explosions. Anyway, the pressure worked and we were contacted by the PA, they asked for our guidance and advice on how to proceed. We told them we are happy to assist and ready to invest our best efforts to help facilitate that. They eventually signed and ratified the Rome Statute. Not only did we convince and pressure the PA but we also pushed Hamas and Jihad Islamic to sign and ratify the Rome Statute as well. That is how we began our journey in the ICC.   To make the ICC story short, Fatou Bensouda was a real piece of African marble; solid, strong, clear, professional, decent, honest. We were aware of how much pressure she was under, but she was able to push through nonetheless. It took her five years to carry out the preliminary examination, although I did not think it needed that much time as this was the most documented conflict in history. The next stage was the Pre-Trial Chamber to assess whether this matter falls within the jurisdiction of the ICC or not. Then a presidential decree was issued by President Trump that any individual bringing a case against an American or Israeli soldier to the ICC, whether it is a lawyer, or prosecutor, judge, will have their visas cancelled, accounts frozen, property confiscated, etc. And some of these people are part of our legal team—we have American lawyers in our legal team, the prosecutor assessing the merits of the case may be subject to that. But we continued nonetheless until the Court decided in February 2021 that Gaza, West Bank, and East Jerusalem fall within the jurisdiction of the ICC. Bensouda was then threatened twice in her office, with her life, by two diplomats. Europe knew about that, the Dutch government knew about that, and nobody did anything to interfere. She then decided to form the Investigation Committee, and we had one last meeting with her in May 2017 before she left, where she introduced us to the members of the Committee. Mr KK, Karim Khan, then took position in June.   Since 2017, until today, in simple words, he did not move matters one millimetre forward. Obviously, for political reasons, he is selective in dealing with cases; he’s essentially politicising the ICC. From day one, we told them we are on the ground, we legally represent the victims, we have the power of attorney, we have the legal files, we have the eyewitnesses. Whatever you need, we are at your disposal, anything you want. We knew that Israel would never, ever will allow the Committee to come to the Occupied Territories because there was not a single instance where Israel allowed any committee to come and investigate what is happening. We asked them to use us, please. Yet every time we go to The Hague and we meet with them, we talk to them, we offer once again our assistance, but they don’t say or ask anything. Which was very strange, what are they waiting for?   Now, Mr KK does not even want to see us as representatives of victims, yet he claims wherever he goes, that he is the friend of Palestinians and the world civil society. He is not a friend, neither to the Palestinians nor the world of civil society. I know what our Colombian counterparts say, I know what our Kenyan, Afghani, Iraqi, Palestinians, and many others say about him. No, he is not a friend of civil society. He is a friend of the States, of power to the States, to America, to the UK, to Germany. He is just in their pockets, unfortunately. And I’m not saying this because I want him to be my enemy, I’m saying it because we as human rights activists, our mission is to speak truth to power—this is one thing—second, there is one concrete example. The entire basis of the Ukrainian file is the invasion and occupation by Russia to Ukraine. It is invasion and occupation. That is why the US and Europe decided, one, they are against the invasion and occupation. Two, Ukrainians are entitled to self-determination, and that means they are entitled to resistance by all means, including armed struggle. They publicly announced that they will support the Ukrainian resistance by all means, including arms. They asked the free Europeans to go take arms and fight with Ukrainians. Three, they imposed on Russia six layers of punitive measures, which, I mean, would destroy any country.   We are not against these decisions, we agree completely with them completely—yes, Russia invaded and occupied Ukraine, and the Ukrainian people have the right to resist, but how is it possible that all this was achieved in one year? The right of self-determination, the right of resistance, asking the free people across Europe and the world to join, to support Ukraine by all means, and punishing the Russian Federation. How is it possible that within just a year, an office in Kiev was opened with 43 staff members, while in Palestine, since January 2015 until this point, nothing moved. I mean, there is not even a need to investigate, the files are there. You press a button, you have everything you need. Even with some areas of law, you do not need files, it is all in the public domain. For example, with the illegal settlements, everything is in the public domain.   This is what we are dealing with, and that is really our dilemma with the ICC. We do not think it is Mr KK’s doing though—it’s the ugly Europe, unfortunately, which like I said before, no law for slaves, and we are the slaves of the 21st century and they are the masters. This is racism, this is colonialism, and it is totally unacceptable. It is totally unjust and unfair. What is happening with this world? We say in Arabic ‘Mohammed yarith , Mohammed layarith ’ or ‘Mohamed inherits, Mohammed does not inherits’. Either Mohammed inherits or does not inherit. Either you have rule of law and democracy for human rights for all., or we just do not talk about it. Is it because we are not white? We do not have their hair, we do not have blue eyes, we are not Christians, we are not close to Europe. There has to be some logic, some respect for the intelligence as human beings, but they do not care, and this is what is really going on with Israel. They are encouraged by what is happening to continue their lack of accountability. Look at the Coalition Framework Agreement—you do not need more than the Agreement to say that this is essentially codification of all the war crimes they are planning to commit, they are openly discussing it and sending this message to the whole world, and they are actively carrying out the plans as we speak.   CJLPA : It is unfortunate that an institution such as the ICC, which is meant to be an impartial body, can still be prone to political influence and motivations. Following from that, do you see any progress for the case of Palestine at the ICC? How do you think it can progress?   RS :   We are romantic revolutionaries, right? This is our mission. We have no right to give up. We cannot give up. This responsibility is ours. This is not something personal. We represent victims, and we promise them that we will bring justice and dignity for them. Whatever that takes from us, we will invest our best. They want us to give up, to say we are tired or exhausted, that we do not believe in pursuing this anymore. No, we will keep confronting them. We will keep sitting on their chest. We will keep telling them and the world about their corrupt reality. This is our fight. This is our battle, and we will continue with no compromise, and we should always enjoy strategic optimism, we should not lose that, at all.   CJLPA :   Definitely—through your unwavering hope and persistence on achieving justice through the legal systems in place, a solution can be achieved. In addition to Israel’s treatment of the Palestinian people, as you have already mentioned, it is disappointing to see that other states take part in the prevention of justice for the Palestinian people. Finally, is there anything that the international community can do today to put further pressure to hold the Israeli authorities accountable for their actions?   RS : Yes, there are many viable options. We want to see some countries stand for their legal obligations, I wonder if there is a possibility for universal jurisdiction to be applicable somewhere else. Not just in Europe, it can be anywhere. Yes, I think there is an opportunity there.   Another option is an ICJ advisory opinion. I think it is a big shame that Europe’s overwhelming majority voted for either abstention or against seeking an advisory opinion by the ICJ. I cannot even comprehend why that would be an issue, I resort to the most important court on Earth, and I’m seeking an advisory opinion, what’s the problem?   So, I think we have a just, right, and fair cause. We have to keep fighting for it—our mission is to speak truth to power. We have a very good case in our hands. We have international law, international humanitarian law, and human rights law supporting our cause, in theory. We have to continue with that, we should not lose the hope. We have to keep the strategic optimism. Hard times always push either to give up or to stand for each other, and we have no right to give up. We stand for a challenge and continue to not because this is personal, but because it is the victims’ pain, blood, souls, and suffering. We have to continue with this.   CJLPA : Thank you, Mr Sourani. It has been an absolute pleasure to speak with you today, benefiting from all the intricacies of your vast expertise, which has deservedly earned you several awards such as the National Order of Merit. Your ICC work, overall bravery, and dedication to the rule of law for your people is truly extraordinary. We look forward to seeing what PCHR has in store for the coming future and we wish you all the best in your endeavours. 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] ‘Unwilling and Unable: Israel’s Whitewashed Investigations of the Great March of Return Protests’ ( B’Tselem , December 2021) < https://www.btselem.org/sites/default/files/publications/202112_unwilling_and_unable_eng.pdf > accessed 10 March 2024.

Oleksandra Matviichuk is a prominent human rights defender, currently leading the Center for Civil Liberties and coordinating the Euromaidan SOS initiative group. Her work focuses on protecting human rights and promoting democracy in Ukraine and the OSCE region. The Center for Civil Liberties engages in legislative advocacy, public oversight of law enforcement and judiciary, educational initiatives, and international solidarity programs. Euromaidan SOS originated in response to the 2013 Kyiv student rally and has since monitored political persecution, documented war crimes, and campaigned for the release of political prisoners. Matviichuk, recognised for her extensive experience in human rights activism and documenting violations during armed conflicts, initiated the ‘Tribunal for Putin’ to document international crimes in regions targeted by Russian aggression. Her contributions earned her several awards, including the Right Livelihood Award and acknowledgement as one of the 25 most influential women by the Financial Times in 2022. Additionally, the Center for Civil Liberties received the Nobel Peace Prize in the same year.   CJLPA :   You have led, and continue to lead, an inspiring career in protecting and upholding human rights as a n international human rights lawyer, serving on the Advisory Council under the Commissioner for Human Rights of Ukraine’s national parliament, representing Ukraine to the UN Committee against Torture and of course, and heading the Centre for Civil Liberties in Ukraine. In 2022, t he Centre for Civil Liberties was awarded the 2022 Nobel Peace Prize, a further indication of your remarkable work. What prompted you in this career?   Oleksandra Matviichuk : In high school, I considered becoming a theatre director. At that time, I met the philosopher, author, and head of PEN Ukraine, Yevhen Sverstiuk. He took care of me and introduced me to the circle of Ukrainian dissidents. I got to know people from my history textbook. They courageously dared to fight against the totalitarian Soviet machine. They spent many years in camps, exiles, and psychiatric hospitals. Since then, I know that even when you have no tools left, you always have your own word and your own stance. It is not so little, after all. This experience shaped my life. I chose to study law so that I could defend freedom and human dignity.   CJLPA : There is a lot of literature and philosophy about how we see human rights : do we see them as morals (which are in themselves subjective), a set of standards defined by intellectuals and philosophers, rights promised by states (which at any point can be taken away the same way it was given), or something else? What do human rights  mean to you?   OM : Human rights are humanistic ideas of how to protect the person’s freedom from the arbitrariness of the majority, no matter what form it takes—be it the dictates of the society or the state machine. After World War II, these ideas were enshrined in international standards at the level of the UN, the Council of Europe and other regional international organisations. However, human rights are more about a way of thinking, about a certain paradigm of world perception that determines how a person thinks and acts. They lose their meaning if their defence is delivered to lawyers and diplomats alone. Therefore, it is not enough to pass the right laws or establish formal institutions. The values that dominate society are stronger anyway.   CJLPA :   After World War II, the Universal Declaration of Human Rights codified the protection of our fundamental human rights. It signified a time of solidarity, a time where we thought we had helped end all wars and prevent future human rights abuses. And yet, in the present day, people around the world are fighting for their fundamental human rights and freedom. Countries, even ‘developed’ countries, began to take them for granted. How do we make human rights meaningful again?   OM :   The problem is not only that the space of freedom in authoritarian countries has narrowed to the level of a prison cell. The problem is that even in developed democracies, forces calling into question the principles of the Universal Declaration of Human Rights are gaining weight. There are reasons for this.   Others have replaced the generations that survived World War II. They have inherited the values of democracy from their parents. They began to take rights and freedoms for granted. People are increasingly manifesting themselves not as carriers of these values but as their consumers. They perceive freedom as making choices between cheeses in the supermarket. Therefore, they are ready to exchange freedom for economic benefits, promises of security or personal comfort.   In a large part of the world outside the theatre of World War II, there was some experience that determined the development of the societies. For example, they were formed in the process of decolonisation and related confrontation with the metropolises, which became the architects of the new world order. It is obvious that in the absence of developed democratic traditions and a weak legal culture, trust in the entire concept of the existing world order and human rights is undermined.   Freedom and human rights cannot be achieved once and forever. We make our own choices every day. Human rights should be a no less important factor in our decision-making than economic benefit or comfort.   CJLPA : From your extensive experience in working with national governments and the United Nations or from your encounters with diplomats and politicians, are human rights given the importance in political decision making that we would expect?   OM :   Now, the armies are speaking because the voices of civil society have not been heard. We may have been listened to at the UN Human Rights Committee or the annual OSCE Human Dimension Implementation Meeting, but definitely not in the rooms where people in power make decisions. If we do not want power to remain with those who have the most powerful military potential, then the voices of civil society require much more support.   We are witnessing before our eyes the collapse of the world order based on the UN Charter and international law. Yes, this system did not do well before, but now it is slipping and performing the ritual movements. The Security Council is paralysed. We have entered a period of turbulence, and now fires will occur more and more frequently because the world’s wiring is faulty, and sparks are everywhere.   Hence the question—how will we, people in the 21st century, protect people, their rights, freedom, and dignity? Can we rely on the law? Does only brute force matter? It is important not only for people in Ukraine, Syria, China, Iran, or Sudan to understand this. The answer to this question determines our common future.   CJLPA :   As of 2022, the world has responded in shock about the emergence of Russia’s disgraceful regime, but the reality is that Russia has been committing crimes in countries around the world for decades (eg Syria). Why do you think there was no international response?   OM :   This impunity has a long tradition. The Nazi criminals faced the Nuremberg Tribunal, but the Soviet totalitarian gulag has never been condemned or punished. Neither for Holodomor exterminating the Ukrainian people in 1932-33, nor for the forced deportation of the Crimean Tatar people, nor for the aggression of the USSR against Czechoslovakia.   Unpunished evil grows. Even after the collapse of the Soviet Union, the Russian military has committed terrible crimes in Chechnya, Georgia, Syria, Mali, Libya, and other parts of the world. However, the countries of the democratic world have turned a blind eye to this for a long time. They have continued to shake hands with the Russian leadership, build gas pipelines, and conduct ‘business as usual’. The world did not respond properly even to the act of aggression and annexation of Crimea, which became the first precedent in post-war Europe. Russia has come to believe that it can do whatever it wants.   Now, when I am asked why the Russian military shelled the car with the mother and children, to whom they themselves gave permission to evacuate and waved their hands as if to say goodbye, I have a simple answer. There was no legitimate purpose to do this.  There was no military necessity for this. The Russians did it only because they could.   CJLPA : In addition to the above, the Russia-Ukraine war did not start in 2022 but years earlier. Could this war have been prevented altogether if our response had been different, or was it inevitable, given Putin’s horrific ideals and motivation? What can and should politicians learn from this?   OM :   In February 2014, Russia unleashed the war against Ukraine, occupying the Crimean peninsula and a part of the Donetsk and Luhansk oblasts. At that time, the Revolution of Dignity was over in Ukraine. Millions of people courageously stood up against the authoritarian and corrupt regime. They fought for the chance to build a state in which every person’s rights are protected, the government is accountable, the courts are independent, and the police do not beat peaceful student demonstrations. They paid the highest price for it. The police shot dead more than a hundred peaceful demonstrators in the capital’s central square.   When the authoritarian regime collapsed, Ukraine had a chance for democratic transformation. To stop Ukraine on this path, Russia began this war in February 2014. In February 2022, Russia expanded it to a full-scale invasion. It is not NATO which Putin is afraid of. Dictators fear the assertion of the idea of freedom.   The democratic world has become accustomed to concessions to dictatorships. That is why the willingness of the Ukrainian people to resist Russian imperialism and defend the values of freedom and democracy is so significant.   It is necessary to stop disguising postponed military threats as ‘political compromises’ or selling the Russian occupation and its terror against the civilian population under the guise of ‘peace’. Politicians are tempted to avoid difficult decisions. They often act as if global challenges will disappear on their own. However, the truth is that global challenges are only intensifying.   CJLPA : It is important to address how unprecedented and terrifying this war is and its implications for humanity. Can you provide us with some details about the crimes that have been occurring and of which we have evidence?   OM :   Since the full-scale invasion, we have faced an unprecedented number of war crimes. Russian troops are destroying residential buildings, churches, museums, schools, and hospitals. They are shooting evacuation corridors. They are torturing people in the filtration camps. They are forcibly deporting Ukrainian children to Russia. They are destroying the energy infrastructure to deprive millions of people of heat and light in winter. They are abducting, robbing, raping, and killing in the occupied territories.   Russia is deliberately committing these war crimes. Russia is attempting to break the resistance and occupy the country by inflicting immense pain on the civilian population. Russia uses pain as a tool. Therefore, we are documenting violations of the Geneva or Hague Conventions. Not just violations: we are documenting human pain.   War turns people into numbers. The scale of war crimes is increasing so rapidly that it is simply impossible to tell all the stories. That is why it is so important to tell them. Like the story of Svitlana, who lost her entire family after a Russian missile hit her house.   I heard them dying. My husband was breathing, straining, as if he was trying to throw off the slab, but he couldn’t. One moment, he simply froze. My grandmother and Zhenia died instantly. I heard my daughter start crying. In a moment, she also fell silent. My mother said about my son that he called me several times and fell silent.   People are not numbers. We must give people their names back. Because the life of every person matters.   CJLPA:  What are key international laws Russia is violating?   OM :   There are probably few provisions of international humanitarian law that  Russia has not violated. Before the full-scale invasion, Russian officials at least covered up war crimes, but since 24 February, no one has been hiding anything in particular. Therefore, it is not surprising that when the photos and videos of the murdered people’s bodies in Bucha, still lying on the streets until the city was liberated, shocked the world, Putin gave an award to the army unit which had been deployed there. He thereby gave a clear signal that the Russian army could continue killing, raping, and torturing the civilian population. Nevertheless, special attention should be paid to the genocidal character of this war.   Russia is a contemporary empire. The enslaved peoples of Belarus, Chechnya, Dagestan, Tatarstan, Yakutia, and others are undergoing forced russification, expropriation of natural resources, banning of their native languages and cultures, and forced identity change. An empire has a centre but no borders. An empire always seeks to expand. Therefore, if Russia is not stopped in Ukraine, it will go further.   For empires, culture is only one of the tools of expansion and assimilation of enslaved peoples, just like the languages of these empires. Therefore, it is not surprising that first Russian tanks entered Kherson, and then banners with Pushkin appeared immediately after them. These are the road signs that the Russian Empire used to mark the territories it seized.   At the international level, there are still discussions about whether Russia’s actions can be called genocide. However, there is no need to be a lawyer to understand a simple thing. In order to exterminate a certain national group, it is not necessary to kill all its representatives. One just needs to destroy their identity, and the whole national group will simply disappear.   CJLPA :   Does the war demonstrate international law is weak?   OM : It is not international law that is weak. Our efforts to comply with the provisions of international law are insufficient. I had many conversations with the heads of various countries, government officials, and parliamentarians. We still perceive the world through the lens of the Nuremberg Tribunal, where war criminals were convicted only after the Nazi regime had collapsed. However, we are living in a new century. Justice should not depend on how and when the war ends. Justice must not wait. We must establish a special tribunal for the crime of aggression now and bring Putin, Lukashenko and other war criminals to justice.   CJLPA :   Alternatively, what are the implications under international law if any ‘political compromises’ (eg concessions offered by Ukraine) were made, either through neutrality or an agreement not to join NATO? Would this have a lawful effect?   OM :   People in Ukraine desire peace more than anyone else. Nevertheless, peace does not come when the attacked country lays down its arms. Then, it is not peace but occupation. Occupation is another form of war.   Russia has commenced terror in the occupied territories to keep them under control. The Russian military is exterminating communities’ activists—mayors, public figures, journalists, volunteers, priests, artists, etc. People do not have any possibility to protect themselves, their freedom, property, life and their relatives.   The story of Volodymyr Vakulenko is a vivid example. His body was found in an unmarked grave number 319 after Kharkiv Oblast liberation. He wrote stories for children, and entire generations grew up with his ‘Daddy’s Book’. Volodymyr disappeared during the Russian occupation. His family hoped to the last that he was alive and, like thousands of others, was in Russian captivity. It was difficult for them to accept the results of the identification.   Occupation is not about changing one state flag to another. Occupation means torture, deportations, forced adoptions, prohibition of identity, filtration camps, and mass graves.   People cannot be left to die and be tortured in the occupied territories. People’s lives cannot be a ‘political compromise’. Sustainable peace is the freedom to live without fear and to have a long-term perspective. Calls for Ukraine to stop defending itself and to satisfy Russia’s imperial appetites are not just wrong. They not only conflict with international law, but they are immoral.   CJLPA :   Are there any legal or political mechanisms to stop the Russian atrocities now?   OM :   Throughout the entire period of the full-scale invasion, Russia has demonstrated complete disregard for international law. Russia has refused to fulfil the interim measures of the UN International Court of Justice regarding the withdrawal of Russian troops from the territory of Ukraine. Therefore, the law is currently not working, although I am sure this is temporary.   One of the possible political mechanisms to stop Russian atrocities is to officially invite Ukraine to NATO with the provision of security guarantees until the moment of accession, which will extend to the part of the territory of Ukraine that is under the jurisdiction of the Ukrainian government. The beginning of the actual accession of Ukraine to NATO is a way to end the war, not to expand it, for the reason that ‘strategic uncertainty’ will constantly serve as a reason for Russia to continue attacking Ukraine.   Russia has always acted proactively. Russia used wars and occupation of foreign territories as a fait accompli, thus creating a new reality and forcing the international community to reckon with it. The democratic NATO member countries should finally seize the initiative to start managing this process.   Ukraine deserves to be a member of NATO. Ukraine shares the values of freedom and democracy and is ready to defend them. Ukraine will not be just a beneficiary but a powerful contributor to the security of the Alliance. These are not promises. This is a fact proven on the battlefield. Ukraine will strengthen NATO.   CJLPA :   The UN system, created after World War II by victors, created a structure that allowed for unjustified indulgences for individual and powerful countries. Russia’s invasion of Ukraine is not the first time military power has been abused—we saw this with the US’s invasion of Iraq and Afghanistan or NATO bombing in the Kosovo crisis without permission. Did the latter examples create dangerous precedents, or can they be distinguished?   OM :   The international peace and security system no longer works. The UN is not capable of protecting people from authoritarian regimes and aggressive wars. Created after World War II by its victors, this system established unjustified indulgences for individual countries, which individual countries are increasingly abusing.   We must launch the reform of the international system to protect people from wars and authoritarian regimes. Effective guarantees of security and respect for human rights are required for all states and their citizens, regardless of their membership in military blocs, their military potential, or economic capacity.   Expanding the number of privileged members of the Security Council, as proposed by the President of the USA, will not solve this problem. We are once again offered a hierarchy where countries of greater size or economic potential determine the fate of the entire world. However, we need a fundamental change in the world order, which should be based on respect for human rights.   CJLPA :   A particular weakness in the UN is the veto power for the Permanent States in the UNSC. Two of the veto powers, Russia and China, are authoritarian regimes that contradict our values for human rights and democracy. Time and time again, they have blocked crucial resolutions that were reacting to international conflicts that violated democratic principles. How can we overcome this?   OM : A special responsibility rests with state leaders until the fundamental transformation of the peace and security system takes place. The UN General Assembly should become more proactive in ensuring peace and security. We already have instances when a coalition of states led by Liechtenstein promoted the creation of a special mechanism for Syria. Russia has vetoed the decision to refer the case to the International Criminal Court for years. Establishing the institute of the UN Special Rapporteur on the situation of human rights in Russia by the UN Human Rights Council was equally important. This is the first case of an ‘inviolable, permanent member’ of the Security Council being subject to independent monitoring of the fulfilment of human rights obligations.   CJLPA :   Should any state have veto power in the UNSC? Would it be realistic and feasible to change this structure?   OM :   I cannot predict the future. Nevertheless, I can use examples from world history. It convincingly testifies that the ideas of changes, which were considered too radical and therefore unrealistic, were eventually implemented. The UN is such an example because, for the first time, the charter of this international organisation enshrined the right to intervene in the internal affairs of a state that grossly violates human rights. Before that, this very possibility sounded like nonsense.   Certainly, this became possible after World War II, which caused millions of casualties, the destruction of entire states and the total dehumanisation of people, symbolised by the Holocaust and Nazi concentration camps. I would like to believe that we are able to learn from historical mistakes and prevent such upheavals.   Nevertheless, I am optimistic about the future. We are accustomed to thinking in categories of states and interstate organisations. However, ordinary people have much more influence than they think. The voice of millions of people in different countries can change world history quicker than the intervention of the United Nations.   CJLPA : How do we (and international law) ensure that Russia will bear responsibility for this age of its history?   OM :   We have faced the problem of the responsibility gap. Ukrainian legal system is overloaded with the amount of war crimes proceedings. The International Criminal Court shall limit its investigation to a few selected cases, and it has no jurisdiction over the crime of aggression in the situation of Russian aggression against Ukraine. We need to establish a special tribunal regarding the crime of aggression now and bring Putin, Lukashenko, and others guilty of this crime to justice.   In addition to the crime of aggression, there are other international crimes—war crimes, crimes against humanity, and genocide. These crimes should not remain only in the databases of human rights defenders or in the reports of international organisations. For this purpose, the international element should be involved at the level of national investigation and justice. The support of foreign experts—judges, prosecutors, detectives—is required to properly investigate and ensure judicial proceedings of dozens of thousands of international crimes in accordance with the standards of justice, particularly Articles 6 and 7 of the European Convention on Human Rights. It is essential to create a hybrid mechanism where national investigators carry out investigations together with international investigators, and national judges administer justice together with international judges.   We must break this circle of impunity. Not only for Ukrainians but also other people who have already suffered from Russia’s actions. And also for people who may become the next target of Russian aggression—this time, to prevent it.   CJLPA :   We see crimes against humanity around the world—in Afghanistan, Iran, Syria, Sudan, Palestine, and many more nations. How can the international community improve the protection of human rights for these victims around the world?   OM :   Frankly, we have been defeated so many times lately regarding justice that we greatly need success. Ukraine can become such a precedent that will inspire people in other countries of the world to fight. As my colleagues from Syria said: ‘Tell us what is required to achieve justice for Russian war crimes in Ukraine. Because your success will also be our success’.   CJLPA :   In addition to the above, do you think we are in a position to instil our ‘Western Principles’ in these countries?   OM :   I do not completely understand what ‘Western Principles’ means. If we are talking about human rights, which dictators like to refer to, then the ideas embedded in them are universal in nature. We can find the idea of human freedom or dignity in various cultures and religions worldwide. The truth is that mechanisms for defending freedom are developed in quite diverse ways, and still people in many countries cannot defend their violated rights.   Therefore, human rights advocates in different parts of the world need to work harder to build on local traditions and local historical experience, in which we can find the origins and confirmations of these universal humanistic values.   CJLPA : What can and should the ordinary person who is not a politician or a lawyer do to help make a difference and influence change in our world?   OM : The states that have experienced totalitarianism share a common characteristic. They may have a large population, but they still have only a small number of citizens. Living in fear produces a certain way of thinking, like, ‘I’m an ordinary person; nothing depends on me; anyway, it’s not up to us to decide’. This is a ‘learned helplessness syndrome’ in action. People voluntarily renounce their subjectivity. They turn into objects of control, ‘simple cogs in the mechanism’, as Soviet propaganda said. People become citizens not when they receive their passports but when their area of responsibility starts covering broader categories than themselves or their families.   The countries in transition can demonstrate some consequences of this. However, a person can voluntarily renounce his or her subjectivity even in a developed democratic state. Quite often, people do it for the sake of personal comfort, in order not to take the responsibility and to be inactive. Nevertheless, you cannot make a cat’s paw full of heroes; everyone should make efforts to support social institutions. This interview was conducted by Nadia Jahnecke, Legal Editor and Founder of CJLPA: The Human Agenda. In addition to her role at CJLPA, Nadia is a qualified lawyer in England & Wales specialising in public international law.

Professor Mark P Denbeaux is an American attorney, professor, and author. He holds the position of Law Professor at Seton Hall University School of Law in Newark, New Jersey, and serves as the Director of its Center for Policy and Research. Denbeaux is renowned for his extensive work on the Guantanamo Bay detention camp, producing influential reports and testifying before Congress on the subject. He, along with his son Joshua Denbeaux, served as legal representatives for two Tunisian detainees at Guantanamo. Additionally, Denbeaux is the lead Civilian Military Commission Counsel for two individuals who were subjected to torture by the CIA in black sites before their detainment. CJLPA : Welcome, Professor Mark Denbeaux. Thank you very much for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art . Today, we would like to concentrate this interview on your research on Guantanamo Bay. Can you briefly tell us why you became involved in legal work around Guantanamo Bay?   Mark Denbeaux : I have always been a civil rights lawyer. It started in Selma, Alabama, in 1965 and kept going. I represented Black Panthers, handled sex discrimination cases, and various other issues, including criminal defence work.   My son came to me—he is also a lawyer. Josh said to me, ‘Dad, what do you think of Guantanamo?’. I said I had not thought much about it. This was right after the Supreme Court decision came down, giving the right to some kind of legal representation in Guantanamo. And he said, ‘Well, do you think they have the right guys there?’ I said, ‘I am sure they have some of the right guys, and I am sure they got some of the wrong guys. And it is the normal thing: they can’t tell’.   He said, ‘Do you think Grandpa would have believed that Patton’s Third Army could distinguish the good Germans from the bad Germans?’ I said, ‘Absolutely not. Dad would not have thought Patton had a clue who the good Germans were from the bad Germans’. Then I said, ‘But Josh, Dad would not have cared either. Because he did not believe there were any good Germans’. (They had liberated two camps.) So Josh said, ‘Well, is not that the point?’   I thought about it a little bit, and then he and I agreed that we ought to try to represent a couple of people down there just to see if we could do what we normally do as lawyers: figure out what the cases are, who should be released, and who should not.   Josh got me into it. We joined a group of people who were talking about how to do it—other lawyers, and we went together. At those meetings, they, among other things, referred the names of people who wanted lawyers. They gave Josh and me two, they were two Tunisians. This goes back 20 years.   We were given them because the belief was that they were a father and son. Therefore, they thought it would be nice for a father and son to represent a father and son. Well, they were not father and son. They did not know each other. It was a class difference. There was a big difference in many ways. But we represented them.   Over the course of years, we got one out to Slovakia. It was about 2009. His name is Rafiq Al Hami. We went to Slovakia to see him. He was quite grumpy. It turns out he had been released to Slovakia, but he had been held in Slovakia in what was a former Soviet prison, which had been renovated so that it was not as harsh. There were sort of groups of people living together. They had quite a bit of freedom.   We went to see him, and he said, ‘You know, I can’t leave here for two years. They are teaching me Slovakian’. I said, ‘Well, that’s good’. He said, ‘Can you think of a language that is less useful in the world today than somebody who knows how to speak Slovakian?’ All I could think of was to say, ‘Well, now it opens you up to the whole world of Slovakian literature’.   He was not very impressed with that. He was grumpy and unhappy.   The truth is we had both Tunisians released and life was not good for either of them when they got out. Rafiq’s brother lawyer in Tunisia. So was his sister. He came from a fairly substantial social class.   My other client—Lotfi Bin Ali—was also a Tunisian. He was not healthy. He had rheumatic fever as a child, and he had a rheumatic heart. He left Tunisia when he was 19 to go to Italy, where he was illegal. He was hiding, living on the streets, hand to mouth, and doing various criminal activities, some for which he was captured and prosecuted. But he had surgery on his heart there that helped him. He always wanted to return to Italy to be a chef.   Both of them were taken through the various routes. Both of them were tortured in Kabul in the ‘Prison of Darkness’, which is a gross story I can share if you want. They slowly got released: Rafiq to Slovakia and then Lotfi to Kazakhstan.   Kazakhstan was not a good place for Lotfi as access to healthcare could have been better. They were very hostile. He was also six foot eight. I did not realise at the time that Kazakhstan is basically an ethnically Chinese country. He could not find any clothes that would fit him. In the wintertime, he could not get winter clothes. He had a tough time. After a lot of work, we had him move to Mauritania, which was at least a Muslim country. Kazakhstan was only nominally Muslim. Mauritania was much better. He had a community there. Sadly, two weeks before he was about to be returned to Tunisia, he dropped dead of a heart attack. He was a very witty, funny man. My wife enjoyed talking to him, and we could use WhatsApp. He was enjoyable in conversations.   CJLPA : It means a lot that you built a bond with your clients during your representation of them: you know their story, you were moving forward with them, checking what was happening after they were released. I would encourage you to tell that story about the ‘Prison of Darkness’.   MD : I did bond with them. Most of the Guantanamo lawyers, if they stayed any length of time, we all bonded. There was nothing you could really do for your clients except, to some extent, be a human being and have a relationship with them, because they had no other relationships. They were in real isolation except for guards who were hostile to them. As years went by, we got closer and closer.   At the beginning, they were not friendly. In the beginning, Rafiq asked what I could do. I said, ‘Well, I’m a lawyer, and the Supreme Court says I can do various things for you’. He said, ‘How big is the Supreme Court’s army?’ Of course, I had to say, well, they do not have an army. He was not impressed, therefore, with the Supreme Court.   Over a period of time, I helped him just by keeping human contact. We could send him books to read, do various things, and develop some rapport.   I got a phone call about the ‘Prison of Darkness’. One of them was Human Rights Watch, who called me up and said, ‘You know, your client Rafiq was in the Prison of Darkness’. I said, ‘What is the Prison of Darkness?’ He said, ‘Oh, it is in Kabul, et cetera’. He did not describe it to me then. I said ‘Why are you telling me this?’ He said, ‘Well, we are trying to find out all the people who were held in the Prison of Darkness. We know he was there. We would like to know when he was there to fill in the gaps’. I said, ‘Okay, but I do not believe he was because he has never told me this. I have represented him for almost five years’. He said, ‘Believe me, he was there’.   Josh and I went down to talk to him. It was a fairly complicated time. He could have been more talkative. Finally, he came into the room.   See, one of the things that detainees can do is say ‘no’ to lawyers. It is one of the few things they can say ‘no’ to. So they say ‘your lawyer has come here from New York City. They are here. They would like to see you’, and they can say, ‘No, I am not going to do it’. And that would happen. That was very difficult. You could go down there and maybe have no visits. It is a long trip.   During the second part of our visits, he showed up. I was in another meeting with my other client—Lotfi Bin Ali—I came in late, and I walked in. My son said, ‘Dad, do not say a word, sit down, sit there and shut up’. I felt like he must have enjoyed that! He was no longer 17, so there must be something going on. Rafiq had said, ‘I will tell you everything I know about the Prison of Darkness until you ask a single question. As soon as you ask a question, I will not tell you anymore. I had not heard that statement. That is why Josh did not want me to start asking my questions.   The story Rafiq told was quite elaborate. First of all, we said, ‘Rafiq, why did you not tell us about this?’ He said, ‘Well, you did not ask’. I said, ‘Rafiq, I would not know to ask about a “Prison of Darkness” in Kabul’.   So he did tell us. Here is the story he told us the first time, and Lotfi confirmed it, because they were more or less overlapping in their time there.   The Prison of Darkness was in Kabul near the airport, sometimes called the ‘salt pit’. NPR found the location and described it, and they have shown it on television, but they described it in a less vivid way because it was already gone when they got there.   First, for some context, Rafiq’s story. Rafiq was from Tunisia and had gone to Germany, where he had been selling drugs, making money, and getting into problems. He had stashed a lot of money away. Finally, a group of people came to him and said, ‘Look, you are being a bad Muslim’. They made arrangements to send him to Pakistan, where he went. While he was in Pakistan, the US started bombing Afghanistan after 9/11. The Pakistanis did not want the Arabs there. So, he was pushed into Afghanistan and ended up in Kabul. When the US started bombing it, he had enough money to hire a guide to guide him through the mountains into Iran. As he said, that was not a great choice for a destination. He paid a certain amount of money to be taken there, and then his guide sold him to the Iranians for even more money.   He was held in five different Iranian prisons. I asked him about Guantanamo. He said, ‘Oh, there are many worse prisons. I have been in five war prisons in Iran’. I said, ‘Well, how did you get to Kabul?’ He said, ‘Well, what happened was the US wanted all of us who were captured to be given to them’. So Iran gave them—those many people who ended up in Guantanamo—over to Afghanistan, who then handed over them to the US. Officially, Iran was sent not intervening, but they were flown to Afghanistan by Iran.   He was brought in and put in the ‘Prison of Darkness’. You go in a big building. There is loud noise, very few windows, people shouting, music. They move you into another room. They get all your clothes, everything off there. That room is really like a hallway, it has a door into the hallway that gives some light. When you close the door, there is no light in the hallway. The door was open when he went in. They took his clothes off, and he was naked. They then closed the door and then took him through another door into a smaller room. While they took him in there, there was a bar going across, four feet up from the floor, in a five-foot-tall room, so you could not stand.   Once in the room, they were made to stand up with one hand, the other hand, or both hands locked to a pole, for an unknown amount of time, because there were no clocks, lights, or calendars. They were naked. They were quite upset that there was no way for any sanitation facilities. They would have to soil themselves. They stopped eating. They went through a very difficult time. Occasionally, they would be put against a wall with one hand in a ring just above their heads. They could sit and lean against it. Sometimes, they rotated their hands. He was here for about six weeks. About once or twice a week, he would be taken out of the room naked.   Rafiq described how he was taken into a room to be interrogated by a woman interrogator speaking fluent English, an American woman who was dressed, and he was standing there naked. It was incredibly difficult for all of them to be naked, even moreso in front of women.   He was at some point released and sent to the Bagram International Airport Prison. He was there when one of the detainees was killed. There is a documentary about it called Taxi to the Dark Side . He was brought as a witness, but he did not know anything.   I learned similar things from Lotfi Ben Ali. But the picture is the same. It is dark, cold, naked, no food, no ability to sit or stand for an unknown length of time.   CJLPA : How would you interpret the impact of international human rights laws and conventions on the legal framework governing the detention of individuals in Guantanamo Bay?   MD : Well, I am a law professor, so I would like to think that somehow the law mattered here. But it is not easy to see where the law mattered in any of this. Torture is illegal, no matter what the Department of Justice says. And they tortured: I have represented four people, all of whom were tortured. Two were held as high-value detainees, and all that means is the CIA wanted permission to torture them, not because they were important. Both of the clients I am talking about now—my Tunisians—were released. In theory, they were supposed to be free to go.   One of the things that I have been interested in is how basically benign these individuals were. The truth is, they were a mixture of people, some lost souls looking for something to do, some swept up at the wrong time in the wrong way. The clients I had, the government admits, never committed any hostile acts against the US or its allies, but they were captured for a variety of reasons.   Now, the real problem was America panicked. We were hysterical. We did not know what to do, so you reach out and think you have to do something. They grabbed people but did not even know who they had caught. One of our reports concluded that only 4% of the people held in Guantanamo were held because the United States caught them. Warlords, tribal chieftains, and local police in Afghanistan, Pakistan, and other places turned over 96%. The US never even knew the evidence against people because they were just being handed over.   When it comes to torture and interrogation, there are three models of torture involved. The simple one is the American, the Western world’s view of interrogation, which is that the US police and the FBI bring people in and almost always talk to them. This is what is called ‘relationship building’ by the FBI. They will come in at a certain date and bring people in to talk to them. Those people know what crime has been committed and where. They have reasons to want to ask the person questions, and they have a pretty good focus on what they are trying to find. They are pretty good at it. Much as I would not admit it in court, they do not do a whole lot of physical abuse.   Then you have military intelligence, which is really designed only to find out what is over the next hill. They want to have no ambushes, and so on. That works.   Then we invented something that said, let’s find out who are bad people who do not like the United States. That is all they were looking for because they did not know what else to look for. All of these people brought into Guantanamo were brought in by people who did not have any evidence because there was not any.   It is important to note that of all the 773 people initially brought to Guantanamo, there are about 15 left. All the others have been released. And there has been no problem. The single biggest indictment of Guantanamo is the fact that whenever people were released, they went back. Rafiq, when he was released, ended up in Tunisia. He was married, had a couple of kids, and was running a used appliance store in Tunis. All of them did that.   So they had the wrong people in Guantanamo from the beginning. That made things difficult for everybody. The problem was the torture once 9/11 happened. We decided we needed to find out who the people who did not like us were and what they planned to do to hurt us. The CIA were the ones trying to be the inquisitors, but they were humiliated by having missed 9/11, and they were desperate to prove how good and clever they were. But their problem was how to get information out, and there were a lot of meetings in September and October about who they could target. The debate was between the FBI and the CIA. The question was: who was the target? How could they deal with it? They all wanted to torture.   The problem is that everybody would like to have a magic bullet that will make people tell the truth. Of course, nobody trusts anybody. They end up feeling like they have to coerce. The American model ended up saying: We have got to find some way to find out the truth. As I have pointed out, the ancient Chinese, the Romans, the Florentines, Russians have tried to do that. The Nazis have tried to do that. The one problem they have is that it is not hard to make people talk. Everybody will talk. Al-Qaeda’s rule was: if you are caught, they are going to make you talk. But they needed to feel like they were doing something magical, having missed the opportunity. A lot of this was driven by the CIA’s desperate desire to find a way to discover truths through a magic secret that no one else has ever been able to do. That was a big part of it.   CJLPA : If we start talking about the techniques of torturing, we should also mention Dr James Elmer Mitchell, who developed a list of ‘enhanced interrogation techniques’. What distinguishes Dr Mitchell as the significant figure behind the Guantanamo Bay torture regime? What specific role did medical professionals serve in this context?   MD : Those are a lot of very good questions. Let me start by saying that it is not the Guantanamo Bay torture. It is the torture program. Much of the torture was done before  they got to Guantanamo. In fact, by the time people arrived in Guantanamo, the torture was virtually over.   Now, Guantanamo would like you to believe they never tortured there. They would like you to believe it was never, for any moment, a dark side. But they were tortured there. It was a dark side for a while, something that is never confirmed objectively, but all circumstantial evidence makes clear that was happening. It is clear Mitchell was in Guantanamo.   Let’s talk about Mitchell and the CIA. The problem is that Mitchell worked for the Air Force. He worked for a program helping retrieve downed pilots. He had set up a program called Survive-Evade-Resist-Escape. So they are supposed to survive, evade, and then try to resist and escape, and resistance is avoiding interrogation. Michell was running that.   The thing that Mitchell was doing was teaching Americans how to resist being interrogated. But he was in the Air Force. Let me stop to make one point clear. All of the Mitchell activities that are relevant to torture began the weekend Abu Zubaydah was captured. On 27 March 2000, the night before he was captured, the CIA had a meeting with PowerPoints and descriptions of what would happen, and their key role was that they would be the only people interrogating. They specifically did not want the military or the FBI doing it. That is kind of shocking because the FBI knew how to interrogate. Ironically, the CIA did not. The CIA is in foreign countries. You cannot catch somebody, take them to jail and ask questions. Generally, the CIA buys spies or uses electronic materials and rarely interrogates them. When they did, like in Vietnam, they did terrible things that were also pointless.   The CIA hired Mitchell on 4 April. It is remarkable: on 27 March, they did not want the Defense Department or the FBI involved. By 4 April, they hired a former DOD person who was in charge of helping people resist interrogations. The Deputy Director of the CIA at that time was asked why they did it. And he said, ‘Well, we were in unchartered waters. We needed help’. This is pretty staggering if you realise that three days earlier, they said, ‘We do not want any help from anybody’. Then they admit, four days later, that they did not know how to do it. It may have been the first and maybe the last truthful thing they said about this.   The techniques that he developed were reverse engineering of this air force program. Most of the torture program after Abu Zubaydah was captured was a bureaucratic fight between the FBI and the CIA, and not enough has been made of this. Zubaydah was the first person the CIA ever caught in this area of the world. They shot him, and he was almost dying. The FBI agents were there. They were the first people to interrogate him and talk to him, partly because they had some Arab-speaking agents, whereas Mitchell is anything but an Arab. The CIA began to box out the FBI over and over again, in a variety of ways. The FBI was only around when Zubaydah was seriously injured, and needed some attention from people he was more comfortable with. He was being interrogated in April after he was captured, but most of the month, he was very ill. Then, in May, there was some further interrogation. On 2 June, the FBI quit. They pulled out.   One of the reasons that Mitchell and Bruce Jessen developed their techniques was not because they knew they worked. Their techniques had two components: they had to be so harsh that the FBI agents could not use them. Because the FBI is regulated by domestic law in the United States and anywhere in the world, they needed techniques that were too horrific for the FBI to be able to use. Once they permitted those, the CIA could use them, and the FBI would not. So, this dispute between agencies is crucial here.   When the FBI pulled out on 2 June, Abu Zubaydah was never interviewed again by the CIA or the FBI until he was tortured in early August. He was put in isolation in June until 4 August. The justification for torturing him was that he was claimed to be aware of imminent attacks on the United States, and that they therefore needed to get the truth from him quickly. They got that permission on 4 August, but of course, two months had gone by when they never even asked him a question, so it is quite clear that the techniques were not designed to get information from him.   That is understandable because the FBI has reports of the interviews in April and May, where he did not know much. The CIA eventually had to admit, when the Senate Select Committee on Intelligence established certain facts, that Abu Zubaydah had never been in Al-Qaeda, never run an Al-Qaeda camp, committed no terrorist acts, and attacked no one. However, he was the first one they caught, and they needed permission to use these techniques. If they did not have permission from the Justice Department to use these techniques, there was a very good chance the FBI agents would report them for using these techniques, because they were crimes were under American law.   In late June and early July, the CIA was asking the Department of Justice to agree not to prosecute CIA agents for the acts they had already done, as well as the acts they were planning to do. The CIA, with Mitchell, worked out a series of techniques that nobody could be permitted to use without permission from the Department of Justice, and indeed, the FBI could not, so there could be no competitors. All they needed to do was convince people that these harsh techniques were very successful because they could get information out.   Based on that, they put together a series of lies in which they claimed they had found things from Abu Zubaydah. The Senate Select Committee of Intelligence, in its mammoth report of 556 executive pages, which cites Abu Zubaydah 1100 times, made it clear that the CIA got nothing the FBI had not already gotten. So before they sent him in to be tortured, they knew everything there was to know.   My students ask me the question: How can it be that people wanted to invent a torture system to torture somebody who they knew did not know anything? That question is the hardest question I ever have trying to publish our materials. It is understandable why anybody, and certainly Americans, would be so horrified to find out that they picked somebody who was not an Al-Qaeda terrorist and got permission to torture him, in order to get information that the torturers knew he didn’t have. And the answer was simple: they wanted permission to use these techniques on other people, and they wanted to be sure that they could not be prosecuted for the techniques they had used. That is how the torture program began. In this sense, it does not have a lot to do with Guantanamo. One of my discoveries going through research on Guantanamo was that terrible things were happening everywhere else in the world. Guantanamo could not be worse if you looked at it, but it turns out other places could be far worse.   CJLPA : How would you describe the psychological and emotional toll on the detainees held in Guantanamo Bay? You previously told us that they sometimes thought it was not the worst prison they had been in, but the conditions there were far from humane.   MD : We are talking about Guantanamo. As the world knows, Poland had to pay hundreds of thousands of euros because they allowed the US to torture people there. Lithuania is the same way: countries that the European Court of Human Rights did not cover.   So, first of all, the worst torture always happened outside of Guantanamo. The worst of the worst in Guantanamo were brought in September of 2006. All the harm had been done then, and they were badly tortured. I do not mean them just being held in isolation. They were chained and could not walk. I have never seen my clients take a step. I only see them chained to the floor when I go into a room. It is hard to measure how isolated it is.   The torture we described was horrific, but it was constant. For instance, they were held nude almost all the time in brightly lit, white rooms. They were nude with loud music and air conditioning, and it was cold. Intermittently, they would be sprayed with water. The Department of Justice approved none of these things. These were inventions of the young men, thinking they could find a magic secret.   People should look at the report, which includes not only 40 drawings by Abu Zubaydah but also his descriptions of each of them. The government probably wishes we had not been able to get them. But we did. It is the history of what torture was, not the history of the program that was approved, because here was no connection. There were three or four pictures in there when somebody had been drowning in wooden boxes, put underwater and held there. They could barely breathe, and would have to urinate on themselves.   They would have all sorts of things. There were threats of anal rape. The Department of Justice approved none of these things. These were just people out there trying to find some new gimmick, Mitchell and Jessen primarily. Of course, there were other people, but we do not know their names. So, Mitchell ran the whole thing. He has made at least $100 million for this project, and the CIA was happy to pay him so they could control who the interrogators were and what techniques could be used. Now, the CIA is stuck, having failed to get useful information.   America, for the first time, officially and formally created a torture program. It is very difficult to absorb. For 15 years, I have taught many students who do not believe it when they walk in. When they come out, they are shocked.   What is the effect on those tortured? Sleep—they do not sleep. Some have gastrointestinal problems, some have headaches, and some simply have anger issues. It would be hard to imagine the emotional and physical problems that they do not have. You cannot just do that to people for six years or more.   Imagine 35-year-old people having broomsticks shoved near their anus, making things like they are about to be raped and never knowing if it was going to happen or not, whilst being chained to the floor with women watching, spraying water on them all the time in cold rooms.   Mitchell’s trick was called ‘learned helplessness’, which psychologists are aware of as a technique. It’s not a rational technique in this context. He wanted to make them feel so helpless that they could not resist telling the truth. The problem was that they had already told their truths over and over again. They wanted to find more truths that did not exist. The ‘learned helplessness’ comes down to sleep deprivation. If you look at each of the torture techniques, where they are confined in a small box, where they are put in a little cage, where they are being sprayed with water, or people threatening anal rape or being banged against walls and hit—all of the things they did, they were done consecutively and constantly. For the first 17 days Abu Zubaydah was held after their permission to torture him, they constantly went through all of the techniques, one after the other. They did not stop and ask him questions that you would think they would do. They did not do that. They were just trying to break him, so they could get him in a state where it would be easy to get him to talk.   For 17 days, 24 hours a day, they were doing this to him. So even what they got out of him would have been incoherent and irrational, and all of them agree, they would easily have talked. None of them believed you could resist it. It is impossible. You cannot resist somebody hurting you in some way of that nature. So, how much harm did it cause? I would not want to mention it, but I cannot measure it. It is hideous. That is horrible.   CJLPA : What were the primary legal and practical issues faced by attorneys presenting detainees at Guantanamo Bay, and how did you overcome them?   MD :   There were no legal challenges to talk about because there is no law in Guantanamo. They have a right to a habeas corpus  lawyer, but people cannot win habeas corpus  cases because even if you win your case, the government can still prevent your client from being released to another country. There is no victory possible. Everybody released from Guantanamo has been released through political issues, some human rights organisations, countries wanting their citizens back, various things like that.   So, I do not want a misunderstanding: nobody should believe the legal system helped get anybody out of Guantanamo. They may have helped them see lawyers, but the system did not do anything, the system as we understand it.   The problem is dealing with people who are so foreign to you. When I was going down there the first time, I remember telling somebody, ‘You know, when you put a bunch of guys together in a room, and they do not know each other, what do they talk about?’ My friend said, ‘Well, we talked about politics, sports, sex, and religion’. I said, ‘What else is there?’ Hell, I’m about to meet a fundamentalist Muslim, and I cannot sit there and talk to him about religion. I cannot tell him about politics. I do not think I am going to be talking to him about sex. Maybe it is sports, but I do not even know what sports they have. So we started not knowing anything, but it turned out they were like everybody else: they wanted to talk about sports, politics, religion, and sex. It is the same there. It is a universality that continues, but it was very hard to establish a relationship.   They did not think you could help them. And we could not. All we could end up doing was having a relationship with them. Slowly, with the State Department’s help, you could find somebody to get out little by little. But the legal system should not get any credit for getting anybody out or stopping torture.   CJLPA : How, if at all, did Guantanamo Bay impact the US legal system?   MD : I do not know if it has any effect on the legal system. The most useful things were probably human rights organisations trying to use political power. Lawyers, with some political power, were quite effective at getting people out. I would have said that an informal, low-key political conversation about it would do it; it would be very hard to see how the legal system did it.   I think one problem is that it has damaged a lot of lawyers’ belief in the system. I have come to conclude that every country if it panics and gets scared, does stupid, crazy, and occasionally mean things. America panicked and was scared, and after 9/11, did many horrible things, thinking it was a good idea. Panic, fear and hysteria do not bring out the best in people. Every country when they are cornered like that, will do that, and we did.   I do not know, but I do feel like, slowly, people are looking back, saying, ‘We sure do not want another Guantanamo’. This kind of thing will not happen. But, in the Second World War, we locked up Japanese people on the West Coast, and we said that would never happen again. There is always something that will never happen again because it is a pretty ugly world out there. People just keep working. The legal system works well when the world and the system itself are going well. When it gets all blown up, the legal system is no better at stopping this than anything else.   CJLPA : People largely do not talk about Guantanamo Bay anymore. How do we make American citizens understand history, to ensure that these tragic events remain in the past and do not get repeated?   MD : Well, we have been writing reports about Guantanamo and torture. They have got some attention. We have collected some data, people have been looking at them, and PhD dissertations are going through materials that have been collected. I think there are a whole lot of facts out there that people are paying attention to. I do not know if it is enough, but it is significant. All we can ever do is just try to get the truth out and help people learn. I do not think there is a silver bullet to keep America from doing terrible things if it is scared and attacked again, either. That is true of every country.   CJLPA : Many thanks. 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.

Moneim Adam is a human rights attorney and the Gisa Group’s Program Director for the Sudan Human Rights Hub (SHRH). He began his career in Sudan as a criminal and human rights lawyer, representing numerous activists and non-governmental organizations in local courts. He has been in practice for over a decade. During this time, he worked with organizations like Redress and others, focusing mostly on strategic litigation. Following that, he moved into the field of international law, helping and working alongside international organizations like the International Criminal Court (ICC) in their operations in Sudan, supporting the ICC’s efforts to establish connections between survivors and victims in Darfur and Khartoum and to link victims with international mechanisms. During Sudan’s transitional period following the 2018 revolution, he gave special attention to supporting the transitional justice initiative. He collaborated closely with regional, international, and UN organizations, including the OHCHR, to support the process of working with all parties involved. His current areas of interest are advocacy, archiving, and documentation related to accountability. This interview was conducted on 15 December 2023. CJLPA : We would like to begin by thanking you, Moneim Adam, for taking the time to interview with The Cambridge Journal of Law, Politics, and Art . Your extensive career as a lawyer combined with your advocacy provides a valuable perspective on pressing Sudanese issues. In this particular segment, we would like to address the events going on in Sudan, specifically, human rights issues, the role of international actors, and most of all the place of justice and peace in Sudanese society in the midst of rising conflict in the region. Moneim Adam : Thank you for having me. It is a pity to say that Sudanese people in marginalised communities are suffering in different regions in Sudan as we speak. Actually, in fact, in the entire nation. Efforts are being made, and this has taken place for many decades, we have grown up in this atmosphere, we are looking at the positives and we are always looking for venues and efforts—how we can help people to address human rights issues, to be able to articulate, to be supported, how they can address the issues. We have different types of initiatives, being a lawyer and being an activist. I think we will get to speak during the interview about all of these subjects.   CJLPA : How has your work before domestic courts and as a legal adviser for international organisations shaped your perspective on justice and accountability in Sudan?   MA : I worked in Sudan as a lawyer about 13 years ago, and I started my career working in domestic courts as well as working with international organisations, addressing issues [such] as torture, battery arrest, and other issues facing young activists and politicians, by guaranteeing the right to assembly and [addressing] how they can work and advocate for the local societies. This experience really was shared throughout the years as I started working immediately with an international organisation that was based in London. During this time we helped to protect the youth to be able to demonstrate their rights as non-violent activists, so we faced issues connected to domestic laws, domestic systems, and domestic authorities, as they can detain the activists arbitrarily. They can even detain lawyers without waiving their immunity. So during this time, from 2010 and onwards, the experience was only about protecting [people]. There was no active war in Sudan, that was only in the marginalised communities and we immediately shifted to work with marginalised communities around Darfur, eastern Sudan, and northern Sudan. We also supported the people who came back as migrants from South Sudan. Working in this area, something always comes up that we are supposed to help protect. So we used a system called strategic litigation in order to test the system and the laws and to protect rights when it is possible.   CJLPA : Can you explain more about how strategic litigation functions? You also mentioned that there was an organisation that you used to work with in London—what specific issues did you work with?   MA : The strategic litigation, as I mentioned, has some obstacles connected to domestic litigation itself. For example the law of evidence has issues, the criminal procedures law has a lot of issues, and the criminal code has a lot of issues. The aforementioned issues are contradicting with international human rights standards, as well as the standard for human rights in the African region by the African Union and other regional institutions. There are challenges which are connected to laws, which are connected to institutions. So we use strategic litigation to test the institution itself. Then when we go about the case, we take it to the media. We can take that case internationally or regionally when we face like real challenges using the domestic courts. Doing that, [my colleagues and I] actually managed to push for legal amendments and to protect rights for activists and individuals. We mainly used strategic litigation at that time—I was working with an organisation called Redress Trust and with others as well.   CJLPA : Is there any specific case or scenario where you used these strategies through which you could paint a practical picture?   MA : Yes, I am just going to give an example to bring us back to the current situation [in Sudan]. The Law of Evidence in Sudan has many challenges regarding accepting visual evidence such as a video or a picture. Using strategic litigation, we try to push for [visual evidence] to be accepted. They were rejected, and then when we went to the Court of Appeal it was accepted. Actually, in one case, we took the case to the African [Court of] Human Rights, the African Commission. We do that in order to show that even if the system fails you can take another step, or can tackle the same matter from another angle. So this is one case—and actually, in a case, the visual evidence was accepted by the court itself and the case was successful.   CJLPA : What challenges did you encounter with your work? Through all of these cases and working with the NGOs in Sudan, how have your experiences influenced your approach to human rights issues?   MA : Sudan was under the ruling of Islamic government for about 30 years, which has a lot of implications for the system. [This includes] the practices of lawyers and judges—the entire system. Working in that area, we always try to connect with local, regional, and international organisations in order to have all our experiences channel together in pursuit of justice and human rights. Working towards that we managed to build a very clear channel of international lawyers who are involved with different kinds of law and like international legal groups. We are [helping] local lawyers and practitioners to benefit from the support of international experts and we can also use international justice venues. We have different kinds of cases and now we have many cases pending at different levels regionally and internationally. So what we are trying to do is to help more lawyers to be able to use these systems in order to bring justice for the people.   The main challenge is, for a district attorney’s practitioners for example, having the knowledge to navigate international mechanisms, for one, and secondly having the connections and the resources to do so. [Lack of] resources is actually one of the main challenges in pursuing a case internationally, because [the cases] take a very, very long time, even up to ten years or more. The case before the ICC has now gone on for more than 18 years. This shows exactly how pursuing cases in different types of jurisdiction outside of one’s country can be challenging. The victims are waiting for justice for so long. Even for practitioners, it is going to take a lot of resources to be able to do this. There are not very many places where you can find funding for cases from an institution or an individual because it takes a long time and it is so difficult to have a clear timeframe.   CJLPA : We can now go to the crux of the matter, the ongoing conflict in Sudan. As you said earlier, Sudan has had historical cycles of conflict particularly from the second Sudanese Civil War and the first Darfur conflict. What do you believe are the root causes that perpetuate violence in these situations?   MA : Speaking of the conflict in the region, and just coming back to Sudan and the recent war in Darfur, Sudan has never had a continual peace for more than ten years over the last 70 years. So from the Independence Days [in 1956] it has been in this circle continuously. There was only one break after the Addis Ababa Agreement of 1972, which ended in 1983. The root causes of all these conflicts are never dealt with. I think some of that is inherited from the old regimes historically in Sudan and mainly because of the [significant] marginalisation and injustice that has happened over [Sudan’s] history. There are also issues with democracy and inclusion, and I think that all of those issues are causing these wars and encouraging people to participate in wars. In the region, [Sudan] has the longest history of internal conflict.   CJLPA : You mentioned the Addis Ababa Agreement. What did this agreement entail? I ask this especially because later we will cover issues to do with peace and justice.   MA : When we speak about peace and justice, historically Sudanese leaders dealt with peace and justice not as international law defines it or as an international debate. I think in Sudan, leaders have always dealt with peace and justice as two separate things. They consider peace as stopping the war, which does not really mean that there is peace. But they are referring to stopping the guns and pursuing wholly the peace agreement. All of the peace agreements [that have taken place] in Sudan’s history were only meant to stop the guns, and actually not with a strategy, but just dealing with [the problem] for now. I think that because of this people are never satisfied. Going back to the Addis Ababa Agreement, it was a peace agreement in 1972, one of the peace agreements that tried to speak on the issue of inclusive peace. But both parties at the time, the government and the rebel groups, did not consider [handling the agreement] from a place of trust. The government and the rebel groups at that time did not actually have the will to implement the agreement, even withstanding the issues that the agreement itself has. Regarding other peace agreements in Sudan, they always speak about stopping the guns but they never pursue the issue of justice. Justice then always remains an issue throughout the peace agreements and throughout [our] history.   CJLPA : In your opinion, coupled with local conflict, how has international interference affected the ongoing conflict in Sudan, both now and in the past? What role do international actors play in promoting enduring justice in Sudan?   MA : International institutions—I can put them in two boxes, with the diplomats on one side and the UN agencies on the other side. I do not really want to speak here about the regional mechanisms because they never played a great role. The only role that was played regionally was during the Addis Ababa Agreement and the Comprehensive Peace Agreement (CPA). In those two instances there were major roles played [by regional powers]. Even though both of [the agreements] were led by international actors and not the regional powers, they were hosted in the region. So the international actors always played with Sudan, exactly like I spoke about with the local actors. They always say ‘let’s stop the guns for now’. Even now, efforts taken with current wars always deal with [the problem] as ‘let’s stop the war for now’. One example is the efforts led by the US and Saudi Arabia in Jeddah which are entirely about having a ceasefire, not having a lasting peace, but just having a ceasefire and a humanitarian corridor that can help humanitarian support to move around. We cannot deal with the current war [that way], excluding all the civilians and just dealing with the warring parties. That is one issue. If we look back into all the peace agreements done in Sudan’s history, they all came from that angle, dealing with both warring parties but not including the civilians and affected communities.   CJLPA : Besides the peace agreements, the international community and state actors have been accused of hindering justice in Sudan. Can you shed more light on this?   MA : Sure. So the warring parties are backed by some states, in the region or elsewhere. And I believe there is very clear evidence of accusing one state or another. At some of the meetings that were held recently, both warring parties in Sudan were accusing states of supporting the other [warring party]. Especially the military in Sudan, they are always accusing states. This causes some issues with the legal powers that are accused of supporting one party. As an example, the military, which is the Sudanese Armed Forces, have accused some regional states, namely Kenya. One of the spokespersons of the military spoke about when William Ruto was proposing to send troops to protect civilians and to ensure that the humanitarian corridors could deliver humanitarian aid. One of the military leaders came out and accused William Ruto of wanting to occupy [Sudan] and he said, ‘you have to bring your forces and come to fight’. That is actually one of the leaders of the military. That speech made it very difficult for Kenya—I am not saying I am with or against that initiative, but it made it very difficult for Kenya to continue that initiative.   During another event, the same leader [who accused William Ruto] came out last week and accused the UAE of supporting the Rapid Support Forces (RSF). That caused a lot of diplomatic tension between the de-facto government of Sudan now and the Emirates. Many people accuse Egypt. They have collected evidence that Egypt is supporting SAF [the Sudanese Armed Forces]. Just looking at all these scenarios—like this country is supporting this side, that country is supporting that side—makes brokering peace in the current situation very difficult because all these regional powers have a great role to play. For example, the Emirates now have a very good relationship with the RSF, Egypt has a very good relationship with the SAF. If they are not brought to the table to stop supporting one side or another…   Of course, this war would not have continued to this day if the regional powers were not supporting the warring parties, because that is how they get weapons. That is how they receive support. I think that how the war has lasted for this long, and it is going to continue if that situation continues, and if the international powers are not going to hold regional powers accountable for their support.   CJLPA : You previously mentioned the Comprehensive Peace Agreement that ended the war between Sudan and what is now South Sudan in 2005. What do you consider having been so vital in the CPA, so that it stopped the war? Maybe in all of this conflict, including the current conflict, something is not being understood that can be borrowed from the CPA.   MA : So actually mentioning the CPA in this context here is hinting at something scary, because the CPA led to the country splitting into two countries. That is something really negative. I am very supportive of the South to have their state because they have a very long history and were being marginalised. There was a lack of inclusivity. This is something we have to consider that like this, this is your choice after the referendum, which is supposed to be guaranteed and I am very in support of that. But during the CPA, the warring parties at the time and the international community all came together to stop the war and to include the referendum, in order to help the South Sudanese, by that definition, to have access to a referendum. I think that the peace agreement did not have enough emphasis on justice. It was only about the stopping of the guns. To be honest with you, I do not think that is a good example to be used. Because we have the Abuja Agreement and the Doha Agreement as well—[during none of these agreements] did the warring parties consider it important to implement something that could be followed, not only to stop the guns but to have a lasting peace and to proceed through justice. And none of these peace agreements, including the CPA, have a detailed chapter where warring parties have [realistic] mechanisms for justice. So I think it is better not to borrow from the CPA, but rather the Sudanese people should sit together and learn from the local initiatives. Include all the civilians, include the leaders, include everyone who has felt marginalised throughout history, and sit together and have lasting peace by including everyone. But I think that if we have learned something from all of that history, it is that history always repeats itself by having another war.   CJLPA : The army has been accused since Sudanese independence of usurping power and every time Sudan is at the brink of achieving democracy and good governance it sabotages such efforts. How do you see the historical role of the army in Sudan shaping the current challenges in establishing a civilian-led government?   MA : Even before the Muslim Brotherhood came to power in the last century, the army was always formed. It has a lot of military acts that make it very difficult for people from all over the country to see themselves in them, and [to see the army as] as representing them. This is one thing. Secondly the army is very politicised, the army has always participated in the political game in Sudanese history. And that has always kept the leaders afraid of the army, and then they create their own militias. If we speak about the RSF—according to all the legal definitions that I agree with, I don’t believe that the RSF is a militia, because it was created according to local laws and the same army approved those laws. They have different militias. They had the Popular Defence Forces in the past, and they have different kinds of militias and the government was very proud of having them. So I think the army as an institution is always participating in political games and creating militias that can make them always ready to sabotage democracy. They are always ready to make the way to democracy very difficult.   CJLPA : What steps can be taken to ensure genuine and smooth transition from military to civilian rule, especially given the historical dominance of the military?   MA :   Looking at the situation in Khartoum, it is taken over by RSF, half of Omdurman is taken over by RSF, the entire region of Darfur is now almost controlled by RSF, and the military moves to other places. So I think actually looking at this picture, just makes it so difficult now to pursue peace without looking at how to deal with a militia, with RSF and the allying militias. It makes it very difficult to look at moving forward for achieving a future for Sudan without looking at this, the armies and how they got into conflict. Now, in Darfur, I am not sure if the people in Geneina agree that they wanted to be under the rule of RSF. That is something very frustrating that we are looking at, and we do not understand how people are going to look at the future of Sudan without having the presence of the army. I think the only thing to have for future Sudan is a new matrix for the army. To go back to the barracks, just as the Sudanese revolution was calling for, and to take away and to dismantle all the militias. I think that is the only way to secure a national army without interfering in politics, which can always bring coups and bring an end to democracy.   CJLPA : Since we are speaking about the RSF and the SAF, maybe you can shed more light on the agreement that they had in 2021 and issues to do with the sovereign consult that has brought us to where we are today, on the transition.   MA : The framework agreement that was brokered by the unit arms was one of the sure mistakes done in our history. They saw how RSF had started to recruit some civilians to join their camp. SAF, which is the military, started to recruit other civilians. The RSF was very powerful at that time, and it became powerful because of the military itself, and the facilitation and the support, and the goal, the control over history. For the past ten years, the RSF has had access to all the camps, the mining areas, and that made it easy for them to control more. So the framework agreement, the mistake that was done by the unit arms, was meant to force peace no matter what. I am not saying that the unit arms bear all the responsibility by themselves, but they played a great role in that process, when they did not really do a full assessment to understand what would happen if they pushed so hard to have an agreement only with the RSF. I think that was supposed to be well-assessed by the unit arms, but was really mishandled by them. That brought this conflict forward. When they saw the RSF had started to become a rebel group and disobey the military, during that time, they were supposed to backup and come back to see how they can negotiate around this and urge the RSF not to continue forward with this and enter into confrontation. I think all of these aspects, if they had been considered by unit arms and other forces, if they had been really monitored at that time, we would not be in this situation now. Because there were a lot of ways to prevent this war if followed the right way, and not just looking for any peace.   CJLPA : Reflecting on what you have said regarding ways to prevent the current war and what you have termed the transitional process, and all the issues pertaining to the sovereign council—constitutionally and institutionally, what reforms do you believe would contribute to creating a more inclusive, democratic governance within Sudan?   MA : The constitution document itself is very weak by nature and the Sovereign Council amended it without including the civilians. They made the RSF leader into the deputy of the Sovereign Council, this was done unilaterally by the head of the army, Abdel Fattah al-Burhan. The Sudanese people are supposed to start looking at the history and all the mistakes that have been made, and include all of the local mechanisms for peace and justice in order to have an inclusive process for justice and for the future. Because without having a clear constitution in which everyone feels represented, there is no way to have a lasting peace. I do not think the current or previous constitution documents are the best draft. There are many lessons that can be learned from the history of Sudan. There are some constitutions where, if we look at them, there are lessons to be learned. That can help to pave the way for an inclusive document where people can look at it and all feel included, and that they believe can take Sudan to the next step.   CJLPA : In terms of institutional reforms, do you think having a civilian leader without proper institutions weakens their role? Is this why the military or the militants get their way?   MA : I think there are some examples that we can look at. They used to have some circles of instability. But then when they have the Constitution protecting against like—one of the basic things, like now, Abdelaziz al-Hilu and the SPLM [Sudan People’s Liberation Movement] North are fighting for basic rights, and they are never recognised. It is not about documents, it is about the will. If the Sudanese people do not have the will to have lasting peace and to have democracy, even if we bring any institution from anywhere it is not going to help. Forcing people to believe that the constitution of Sudan is supposed to be like an Islamic government, that does not help. Even during the civilian government, the Muslim Brotherhood were able to make a campaign against the leaders, where they say ‘with the measurement of Islamic ruling, this is wrong’. They call them kafirs, and they call them infidels. And that makes it so difficult. The will is number one and then the documents and all of that can come later—but I think we need to look into helping people to become unified. Anything can come later, but the documents cannot be implemented, even if there is a good document, if there is no human will. I guess that is something we have to look at now.   CJLPA : Our next question is regarding the 2019 revolution and the subsequent events within Sudan. How do you view the transitional period that came after? It has been framed by some as a missed opportunity for achieving accountability and justice—do you agree with this perspective?   MA:  Of course, I agree with that. And I add that the Sudanese youth, and men and women, they sacrificed a lot in order to have the revolution achieve its goals, or at least to remove the Muslim Brotherhood leaders. But the problem happened because of the selfish politicians. They do not have vision, that is why they came and—to be honest with you—they hijacked the revolution itself. They sought to negotiate again with the military and they [reopened] the door for the military to come back and participate in politics. The three slogans of revolution—freedom, peace, and justice—none of [them] were part of the agenda for those civilians who came and hijacked the revolution. I [use the word] ‘hijacked’ because they did not care about freedom, peace, and justice at all. When they created their first government, it was weak. They did not care about training. The people who came and joined, like the officers, did not train. They did not provide basic training for governance. Someone may have had no experience at all, and they were are appointed to governance. The government becomes something useless. Ministers were appointed where it was their first job in their life, to be a minister. After that, nobody cared about legal reform, nobody cared really about institutional reform. These people hijacked the revolution, they betrayed the streets.   CJLPA : Given what you have just said, if you were to look at an effective transitional justice mechanism in Sudan—and we can even put it in the context of the post-2019 setting—how do you think, considering all of the complexities and the situation that did happen, that [transitional justice] could have been done better or actually could have been made effective?   MA : First of all, I think they have to let the youth create their own parliament, which was prevented from the first days. They have to initiate the institutions—there was supposed to be an institution for a peace, an institution for transitional justice, and an institution for reconciliation—but nobody cared about them. The first thing to be done is the Parliament, which is supposed to be led by youth, women and men. Also, to initiate institutions that can build a foundation for work around justice, transitional justice, reconciliation, because it was never dealt with. Those three things are the main things that can put Sudan in a constant position to have another war if not dealt with from the beginning. We need to include—not to exclude—the youth who led the streets. They were the people who were supposed to protect democracy at that time, to protect the revolution at that time, but they were excluded. And there should be trust—the people who hijacked the authority, they were supposed to trust the youth and to report to them when they are blocked by the military, they were supposed to come back to the youth. I think all of those were not met and I think those are the main things that led to this current situation. Because at the end of 2023, when the unit arms were leading negotiation between like both warring parties in order like to have the framework agreement dealt with by both parties led by sovereign RSF, that is exactly how they put back the ball back in the military’s court.   CJLPA : Could you elaborate a bit on how a youth-led movement could effectively result in an intersectional transitional justice movement? So again, looking at social justice, environmental justice, how would a youth-led movement in particular do well with these different forms of justice?   MA : We saw during the revolution that when the youth really managed to control a certain area, it was like an inclusive, small Sudan where everyone sees themselves there. Yeah, there are some issues here and there because of the inherited history and things. But I think that during my entire life, the only small Sudan that I saw had vision, or a way to go forward. I think that was like the second time. If a youth are given a chance to lead, like they did successfully with the revolution during 2019…   We did an oral history project in collaboration with George Mason University where we collected and included more than 120 interviews, in which we asked people what peace means to them, about justice and accountability, those basic questions. And when we asked these people those questions, and we completed the analysis with experts, I believe it was the only well-analysed document given out during the discussion around transitional justice in Sudan. I think that can tell us about the gap—there is no way that there is enough analysis. During that time, we gave out this document with all these views about what we see in that area, what peace and justice mean for people in from different places in Sudan. I think that can show exactly where the gap is, and can tell exactly that if the youth are given a chance to lead they are going to make it so that the small Sudan can grow to become like the bigger Sudan, and everyone can have their dreams met.   CJLPA : How do you see small Sudan being scaled up to big Sudan? What do you think that the process would be for this grassroots initiative to become bigger?   MA : The historic election, we saw the first obstacle in front of the youth movement is put by people who call themselves the (National) Democratic Alliance. Political parties are always scared of having anything led by youth and that is really something we saw. Youth are able to look into the future, because they have the dream. I think they have the vision, and they feel they are part of the future too. I think youth can be inclusive. Now for example, in the small institutions that were led by youth, we see the inclusivity, we see the justice, we see the vision, and we feel like everyone is really participating. Everyone feels that that they belong there. I think that if youth are given the chance to lead, which has never happened in Sudan, that they are going to be able to build the Sudan where everyone believes that they belong. With just what basic definitions are given to people, I think that can be the chance to rebuild Sudan with justice, with some institutions that research. There is a huge gap with regard to research on environmental harm. Nobody cares about the mining activities that were led by the old regimes. I think youth can bring research there that can help to stop all of these activities that can harm the environment, and in turn, can harm the future. I think they can lead the democracy to be achieved in Sudan.   CJLPA : There are different stakeholders in the community: the media, the communities themselves, and institutions of learning. In what ways, even for policymakers, can they affect justice, in what ways can we affect the transitional justice?   MA : In, Sudan they have traditional ways of dealing with justice. For example, in Darfur, in the Nuba Mountains, in in eastern Sudan, in northern Sudan, in the centre, they all have a sort of social reconciliation, where tribal leaders sit together and present a form of justice that can leave everyone feeling satisfied. One could ask the question of why would that be effective, for example, stopping the war in Darfur, because there is no institution to take that further. If the communities are ready to reconcile among themselves, if there is a state that can make that achievable, that can make the record of that—but that is not happening. So they can have a reconciliation or can have negotiations today around any matter that happens, but there is no support for mistakes—that cannot hold itself up, it is going to fall.   Speaking about the future of justice and future transitional justice, transitional justice itself is targeted by some politicians in Sudan who say transitional justice is a way of life that supports impunity, which is incorrect. That has actually led some people to advocate for justice being achieved only by the ICC, which is also a big mistake. It cannot achieve that—the ICC can only look at one case, only try the leaders, only try certain crimes—but there is a lot going on here, this is an entire country in chaos. I think that saying that only the ICC can deal with everything is a huge mistake. Academics need to write a lot in this area in order to clarify for local people how justice can be achieved, and that the ICC is not the only thing that can achieve justice. One quote I heard from the ICC prosecutor was that ‘justice does not die within the premises of the ICC’. I think that is a very clear way of speaking about justice. Scholars, academics, all the institutions, and the media can help to clarify that justice really is a process. It is not only something that can be achieved within one institution. And transitional justice is one of the important ways of dealing with accountability when an entire country is in a civil war.   In summary, it is important to look for justice as a process. Transitional justice is one of one of the cornerstones for that, especially since you cannot take everyone to court. Some of those [situations] are supposed to be dealt with according to the communities, and some supposed to be taken to the local courts. Building local institutions is very important and key and cornerstone for achieving justice too. So all these efforts, if they are done together, can help achieve justice. That is going to be the first step in a lasting process for justice and peace. That can happen only when we have transitional justice, that everyone feels satisfied.   CJLPA : It is not lost on us that after all of our discussion about how the previous transitional justice movement did not have the effect it should have, you yourself have had to make personal sacrifices as a result of your involvement. It is astounding for all these years, you have been able to keep going see this as a process, a light at the end of the tunnel. What keeps you motivated to continue doing the work that you do?   MA : I think that the dream to have a just Sudan is something always keeping me committed to this work. In fact, last year more than six months before the war, I was doing research with an institution pursuing studies for anthropology and I was working on the question of why people participate in a war. That was actually more than eight months before the war. The thing is, to see people suffering in Darfur, suffering in Khartoum, suffering in eastern Sudan, now in northern Sudan, and everywhere—that requires anyone to be committed, if not to achieve justice entirely, but just like to participate in that process. Even if it is with research, with one case, or even with educating one person. That is something really important that we have to take into consideration all the time. For me personally, I believe justice can happen and is going to happen sooner or later. That is something I am always committed to, participating in any process available: supporting the ICC, supporting any regional mechanism, supporting domestic institutions, helping local lawyers or local institutions to create records, or even doing interviews with elders or with communities for data collection. One of our goals is to achieve justice, to participate in this process and to do advocacy from Sudan. But I think that one of the goals we need to have is to create a record for the future. If we have that record for the future, people are going to see that and understand what has happened through history—and I think they will not repeat it again. All of this can really pile up, and lead us to not sleep until we see justice achieved. I think that everyone who has committed a crime should face justice through local courts, through universal jurisdiction, or through any kind of procedure. Justice is a must and it is going to happen sooner or later. This interview was conducted by Solomon Njombai and Alexandra Marcy Hall, Legal Researchers at CJLPA. Solomon, an Advocate of the High Court of Kenya, holds a Master of Arts degree in International Relations and an LL.M in Energy Law. His primary focus lies in comprehending how energy intertwines with global issues and how it drives interactions between states on a global scale. Alexandra is a human rights professional who has practised and researched extensively in North Africa and Europe. She currently works in advocacy for asylum seekers, refugees, and migrants living in London through an international humanitarian organisation.

Anastasiia Marushevska is Editor-in-Chief of Ukraїner International. Ukraїner, conceived by journalist and writer Bohdan Lohvynenko as a volunteer media project, stands as a comprehensive educational initiative dedicated to Ukrainian studies. The project unfolds through socio-cultural expeditions, and since its inaugural journey in June 2016, it has developed a rich collection of multimedia materials translated into fifteen languages. Comprising published books and full-length documentaries about life before and during the full-scale war, the project aims to bridge cultural understanding among non-Ukrainians and Ukrainians alike. By documenting the diverse lives and crafts of residents across Ukrainian regions, Ukraїner endeavours to dispel negative stereotypes, fostering an open and receptive society. The initiative has collaborated with many governmental agencies, non-governmental organisations, and partners in different countries to promote Ukraine globally, and organised events in European capitals. The ultimate goal, as emphasised by project participants, was addressing the lack of information about different Ukrainian regions, thereby contributing to the development of tourism in Ukraine and a better understanding of cultural and national identity.   This interview was conducted in August 2023. CJLPA : Anastasiia Marushevska, thank you for taking the time to sit with us at The Cambridge Journal of Law, Politics, and Art . You were born in the year Ukraine gained its independence: 1991. It almost seems like you grew up with Ukraine. How did your environment shape your career path? How do you want to help Ukraine in the future?   Anastasiia Marushevska : Thank you for this question. We joke with my friends that we are tired of living through all these historical events that are happening during our lifetime. Growing up in Ukraine, there was always something changing. When I was 22, the Revolution of Dignity[1] happened before my eyes. I was at Maidan, I even lived nearby. Then, the worst started. I was among the generation that has been to Crimea. As a child and as an adult, I had an understanding of what Crimea is, compared to the younger generation who have never been there because it has been occupied for so long.   In many ways, I was shaped in terms of my views in school. I studied at, you do not use this term in English, but we call it ‘gymnasium’,[2] which means an advanced school. I’d say I had very patriotic teachers. Since a young age, I was taught that Russia is not our friend. But it was always in the background because you never really think about it all the time. However, what is important is that my generation is the first to learn a truthful version of Ukraine’s history to understand who we are. Some information was disclosed before, for example about the Executed Renaissance,[3] or the dissident artists from the 60s in Ukraine called ‘the Sixtiers’, or what Stalin’s regime and the Soviet regime, in general, did to Ukraine. However, only a small number of Ukrainians had this knowledge, it had never been explained or taught before Ukraine regained its independence in 1991.   When my generation was learning about the Holodomor,[4] we had a chance to avoid Soviet and Russian propaganda that has always tried to cover this crime. We started looking for the roots of our culture that the Soviet Union destroyed or attempted to destroy. Those shifts to understanding who we were had always been in the background when I was growing up and it continues till nowadays. Travelling a lot around the world, and living in different places, I needed to explain to foreigners where I was coming from, what Ukraine is, and why we are not Russians. I probably sounded like a Ukrainian nationalist to many because I always explained all the beauty my country had.   When Russia invaded Ukraine in 2014, it started being incredibly complicated, as everyone outside Ukraine wanted to talk to me about it. Russians were trying to talk to me, but this conversation always went nowhere and, in general, I avoided it. It was always evident that wherever I went, my mission as a Ukrainian was to build Ukraine’s image and reputation. Otherwise, it was just impossible for me. One cannot pretend that Ukraine has the same level of safety as, for example, France or the UK. We grew up with the idea that we are in danger, being a young country with our historical oppressor as a neighbour. It is like an existential threat that always surrounds you.   For example, I have lived in Bali, Indonesia, for almost four years. It is a highly complex country to build awareness about Ukraine, but it is also essential. Here, compared to Western countries, people have a very low understanding of Europe, especially Eastern Europe. It needs to be built from scratch. Many things are unknown to them.   Unfortunately, there is a particular reason why the world needs to learn about Ukraine. We would not care to this extent whether the world knows about us if there were peace. But now this knowledge is a weapon. So it is vital. I believe that many Ukrainians are the same as me, who were doing different things in their life but ended up focusing all their expertise and resources on working for Ukraine in the way they can.   CJLPA : Many people simply associate Ukrainian culture with Russian culture. What is the importance of shedding light on Ukrainian culture, differentiating it from Russian culture, and showing people that Ukraine has its own identity and culture?   AM : There are several layers here. I was never interested in Russian culture. This assumption that all Ukrainians are somehow involved with Russian culture is not valid because everyone has a different experience here. I am from the central part of Ukraine while many people in the east have been forcibly Russified for generations. I started learning English very early and knew it pretty well almost all my life. I never cared about whatever they were doing in Russia. I was listening to Led Zeppelin and stuff like that. I did not care what was going on there. Of course, I was still exposed to Russian culture. I read a lot as a child and our home library was full of Russian books—a kind of Soviet heritage we all ended up with. But I always liked Ukrainian literature more. For me, Russia is just depressing and has always been.   On the social, contextual, and historical layers, it is crucial to understand that Ukraine and Russia were formed in entirely different spaces. Ukraine has robust ties to Europe because Kyivan Rus was one of the biggest European countries, and our culture and language are much, much older than Russia’s. What you see now in Ukraine and Russia are the results of those different spaces.   Russian society is somewhat like the Mongol invasion of modern times. It is very often forgotten that most of Russian territory is Asia with many tribes and indigenous nations being destroyed, occupied, or Russified at different stages of history. Even Russia and different republics within Russia were formed in completely different historical events than Ukraine. That’s why when someone says Ukrainian culture is similar to Russian, I always ask: what Russian culture—Dagestan, Siberia? Which region? What are you talking about? It is important to pinpoint that Russia was built in many ways on Ukrainian culture that they stole and mutilated, not vice versa.   It is also crucial to recognise that Russian culture is largely shaped by propaganda and their ability to rewrite history. One of the historical facts that I find fascinating is about Queen Ekaterina, who liquidated the Zaporozhian Sich.[5] She decided to rewrite history, claiming that Russia was the successor of Kyivan Rus as a means to forge a connection to Europe since the history of Moscow was barbaric. They existed as barbarian tribes, and she invented a different narrative. For nine years, propaganda historians worked to rewrite history just to build this connection between Russia and Kyivan Rus along with all the heritage that Kyivan Rus left. Since then, everything has gone backwards. Many other events are affecting the vision of Ukraine worldwide. Still, this one is significant because it shows how Russia can use money and resources to create an image of something that does not exist.   Understanding this historical difference is essential. I think many people, especially Europeans, have this idea because, in the Soviet Union, everyone was living under the same concept where there were no colours and no two opinions. There was work and communism, joy was only behind closed doors. For example, when you look at Georgia or Qazaqstan—these are completely different countries. We do not have that much in common in terms of history, languages, heritage, or the way we socialise; the Soviet Union made everyone look the same.   Compared to Russians, people in Ukraine are trying to get rid of all of the Soviet mentality, not to glorify it. We grew up understanding that corruption, for example, is also a result of 70-year-long totalitarianism and we always fought against it. That is the difference between Ukrainian and Russian society. We want to understand our mistakes and build a better future. And it is a very, very complicated journey.   I was born the same year Ukraine regained its independence, but my parents were born in the Soviet Union. They spent all their youth in the Soviet Union. My dad died before the full-scale invasion a few years ago. For him, the fall of the only country he knew was a complicated journey. It took him a long time to find his place in independent Ukraine. He did not know how to live with freedom. For my mum, it was a different story, she jumped on it right away. Everyone needed to go through this journey, having different experiences. It required time for my parents to realise that they were not Soviet people but Ukrainians. Of course, Ukraine is still going through this, we are still fighting against the Soviet mentality and Russian oppressing influence. But I think our path to rediscovering our true roots and heritage is what our modern culture is about.   CJLPA : I want to talk about democracy in Ukraine briefly. Since its independence, Ukraine has been trying to establish itself and progress as a democratic nation. Throughout its modern history, it is constantly trying to improve. Still, they always face challenges dealing with Russian interference. In what ways does the modern Russian Federation disrupts Ukraine’s progress regarding the democratic process?   AM : Sometimes, I ask myself this question: what is there for them? If you take some average Russian, what does he or she gain from Ukraine being invaded or Ukrainian children suffering? They probably feel like they are achieving something. This is the way Russian society is built, on fear and violence. For me, Russia never stops destroying countries around and beyond because it is the only power they know. They are destroying to unite their people. It is dreadful, but this is all they possess and what can explain their action or inaction. The power of destruction and the idle passion for physical force and suffering are deeply ingrained in their culture where everyone is suffering and dying. That is all they have.   If you talk about democratic processes, the Baltic states managed to break free from Russia straight away, other countries could not. But if you look at the so-called post-Soviet space like Eastern Europe and Central Asia, Russia is losing its influence there. Russia is failing more and more economically, socially, and demographically. This idea of Great Russia, cultivated during the Russian Empire and Soviet times, has ceased to exist. Attempting to resurrect this notion is a way for Russia to demonstrate its power and influence global perceptions. To be honest, they have managed to do it because they blackmail the world with energy resources and other means. That is why the world needs to learn how to deal with bullies and prevent them from succeeding.   Some experts believe that Russia invaded Ukraine in 2014 for natural resources as both the East and Crimea are rich with it. I disagree as there are Qazaqstan, Tajikistan, and many other places where they could achieve it. Russia needs Ukraine because, as with Kyivan Rus, it is their only connection to Europe.   I believe this is the ‘Great Russia’ concept, where everyone gets ‘united’ again. That is why, in discussing specific events, we do not always immediately realise Russia’s involvement. It is striking to grow up in a city, noting a lengthy list of aspects in need of change, only to discover later that many of these ‘things’ were somehow tied to Russia’s influence. They had been gradually establishing their presence in the east of Ukraine, in Crimea, for a very long time. This is one of the reasons why they managed to occupy these territories and build a completely falsified image globally.   I believe we were not cautious enough with this. It is a harsh reality, but it is through these experiences that the world is learning about Russia. They managed to get away with all those crimes for so long. Destroying Chechnya, Moldova, Georgia, Syria, and no one ever did anything to them. They never paid for any of their crimes, continuing to do what they know best: destroying. Democracy is not the Russian way of life. It is a system they’ve never truly embraced, and I am sceptical they will in the near future. For them, democracy is an indigestible concept.   For Russia, having democracy next to itself means having Europe and NATO next to itself. Of course, they do not want this scenario because they will not be that threatening anymore. To be honest, if they attempted to do anything against member states, NATO would destroy Russia in a day if countries like China or Iran wouldn’t intervene. So they just create this idea that they are powerful, but against whom?   CJLPA : Let’s shift more to Ukraїner. I want to explore this organisation’s purpose, its activity prior to the war, and how the start of the war in February 2022 changed it. Or did it even change the trajectory the organisation was going through?   AM : We define Ukraїner as a community and organisation because we are an NGO, but at the same time, we unite many people; we have had around 700 volunteers since the start. Ukraїner started in 2016 when Bohdan Logvynenko, a Ukrainian journalist and traveller, decided to go on an expedition around Ukraine. Before that, he lived in different countries, including Indonesia, where he travelled around from island to island. He was meeting people, talking to them, and they never even heard about what was happening on the island next to them. The same problem was in Ukraine, people did not know who they were. I believe that Ukraїner made a significant contribution to Ukrainians understanding where they are coming from and fighting this idea of being a ‘small’ country or nation.   Prior to the full-scale war, Ukraїner continuously went on expeditions around Ukraine, including to the smallest and most remote villages, exploring what was happening there. My favourite story is about the painter and sculptor Valerii from a little village not far from Poltava, who was building sculptures in his backyard. He was trying to make this one painting about Greece. He was 79 but had never been abroad; he never left Ukraine because he could not. He grew up in the Soviet Union with its Iron Curtain. In the 90s, no one had money, after that no one would ever give him a visa to go to Europe. Only in 2017 was Ukraine given visa-free entry to the Schengen zone—the same year the Ukraїner team met Valerii. So, Bohdan and others decided to take him to Greece and started a fundraiser that was completed in a few hours. That’s how Valerii went to Greece and we made a movie out of it called Cupressus , which we are now offering for different film festivals.   Before the full-scale invasion, Ukraїner was about finding the stories of people or some specific industries, little farms, people preserving nature, doing something for the region, their village, something for the whole country. The scale could be different. First of all, it was about exploring who we are.[6]   For me, one of Ukraїner’s most essential projects was the research on the indigenous people and national minorities of Ukraine, which we call national communities.[7] It culminated in a series of documentaries, written stories, and even a book called Who We Are . It was the first time someone explored those stories with such deep commitment to documenting and preserving the traditions of various national communities across different regions of Ukraine and defining the idea of the indigenous nations of Ukraine, which are Crimean Tatars, Karaites, and Krymchaks. They all come from Crimea. After a few years of Ukraїner doing this project, Ukraine adopted a law protecting the indigenous nations of Ukraine.   We also made comprehensive investigative documentaries about the Holodomor and translated them into several languages. Ukrainian organisations worldwide use them to explain the Holodomor. While talking to older adults and understanding what they have been through and how they survived the Holodomor, we found some new evidence that had never been discovered before.[8]   I would say Ukraїner has never been about beauty in the sense of a perfect picture. It was the beauty of everyday life. Something that surrounds us. I think it is just fascinating. There is nothing directed in these stories; you cannot prewrite the script. These people are doing something crazy.   Since the full-scale war, many things we documented in our videos and photos no longer exist. Many have been destroyed in the Tavria region and near Kharkiv. We do not have access to Mariupol, no one does, so we can’t know for sure what’s left. But Ukraїner made stories in Mariupol and Nova Kakhovka before, documenting what might have been lost because of the Russian full-scale invasion. This is very important. And I believe that no one did such a thorough exploration of these specific places. Even if we cannot rebuild them the way they were, at least we have memories documented. There are people who protected these places, some put their lives on it.   One of the examples is the Polina Raiko Museum in Kherson, which was flooded because of the terrorist attack on the Kakhovka Dam.[9] We do not know how it will unfold or what we will be able to restore, but this is where it has changed since the beginning of the full-scale war. Before, we were showing the reality of Ukrainians. Ukraїner did not change its values and we still show the reality. It is the reality that changed.   Before the full-scale invasion, we visited different parts of Ukraine, made projects about Crimea, and talked to refugees from the east of Ukraine, already occupied at that point. We filmed people who lost their homes to the Russian occupation and told stories of what they lost.   Now, unfortunately, the occupied territory is much, much bigger. Our expeditions have transformed into expeditions to the de-occupied areas.[10] That is how we showcase what Ukrainian society is, how different communities survived the occupation, what is happening there now, and what we can do to become even better after these areas are liberated.   We also explore other topics. We have this great project called ‘Culture during the war’ where we try to cover artistic reactions to the war, challenges culture faces in wartime, how artists reconsider this war, and how they transform it into art. We document how many artists stopped creating art, joined the military, and started volunteering. We are documenting stories that show different sides of life during war.   With our partners, we produced documentaries about rural Ukrainian architecture, which was also an exploration of our roots, how we used to do it before the Soviets came and before they enforced a weird understanding of how Ukrainians should live.   We pay a lot of attention to regions. We tried to explain how each region was formed due to some additional mixing of ethnic and political influences, natural and geographical differences. During the full-scale war, we published one of our biggest documentary series about Christmas and Malanka,[11] the winter tradition in Ukraine, which was filmed before the full-scale war. Still, we believe it is more relevant than ever to explain to people that this is our tradition, not something we were convinced of. We have a very long history of mythology and storytelling, and all of these transform into performances during the winter holiday.   We are still trying to have this balance between different angles of Ukrainian culture. We are also doing a documentary series about our military units with a long history. We do talk a lot about war. But we always talk about it from the perspective of values and how these all help us understand who we are, and where all of this is coming from.   We used to be ‘slow media’. Now, we are faster because there are too many events happening. Also, our team has grown a lot since the beginning of the full-scale war. We have more language versions because speaking about Ukraine to different countries has become more important. Now, we have 12 active language versions, and we want to grow even more. Our department Ukraїner International is responsible for language versions and global presence.   One last thing: we became a publishing house. We are working on this more precisely—we publish our books and help Ukrainian authors to publish theirs. This is also a way to keep the freedom and to do it the way we want by having financial freedom.   CJLPA : What safety precautions would you have to take on expeditions to occupied areas? The Russians would not be happy to see people filming. How did it differ from before the war going into areas not under the Russian occupation, for example, in Crimea in 2014?   AM : No one can go to occupied areas, there is no access. We go only to the de-occupied. We usually try to get there as fast as possible after the place is liberated. Last year (2022—ed.), for example, Bucha, Irpin, or Izium and Balakliia in the Kharkiv region—all of these places, it was one story, we talked a lot to the civilians and their resistance. When Kherson was liberated, it was similar.   But this year (2023—ed.), we see a completely different story in the liberated areas. There are no people. There is no one left there. No one knows what happened to these people. It has become much more dangerous now because everything is mined. You cannot be in the de-occupied areas without the military. No one will allow you to go there because it is too dangerous. You cannot access anything without the presence of the army and before they clean the whole area. You can see in our recent videos of the ‘De-occupation’ series when soldiers give recommendations to our team, something like ‘Okay, when I say this, you go in the back of the car; when I say this, you need to move’. It is like that; we must work together to document all of the crimes.   Sometimes, the enemy is very close. For example, Bohdan was with a team were in Kupiansk after the liberation. The Russian army was still on the other side of the city. They could see them on the other side of the river. Also, even though territories are liberated, these areas are under constant Russian shelling and missile attacks. As they are closer to the frontline, more weapons can be used for destruction. It is always dangerous.   At the same time, journalists always go to the front lines. There are specific steps you need to take to protect yourself. It is essential to collaborate with people who can protect you while you are doing your job. That is why we are always in contact with the army, with soldiers, because they are the only ones who can protect us and tell us where we can go and where we cannot. Also, they are the heroes of our stories.   CJLPA : How did the decision to embark on these expeditions despite the challenges and safety risks come about?   AM : I do not know how to explain this. When you are a journalist in Ukraine, are you prepared for it? I do not know. Even if you ask yourself many questions about whether you should go there. For example, I have lived abroad for a while now. My husband is from Corsica, and we found ourselves living in Southeast Asia. So, for me, it is a different story, I have no right to speak on behalf of people who constantly go to the frontline.   People often think that if you are not in Ukraine, you are just scared. But to be honest, when you are in Ukraine, you feel much more protected. It is a weird feeling. You think, ‘okay, I will figure it out, I am not alone’. I am trying to be conscious about my choices and do as much as I can, having global experience and being able to talk about Ukraine to the world.   The idea to film the process of de-occupation appeared just one day when Bohdan was talking to one of our producers—Karina Piliugina. They decided to go to the liberated areas, and they did.   A similar story happened when Ukraїner started, as it was an initiative of several people. After, it transformed and grew, receiving much attention and excellent feedback. Now, our stories have even greater importance as we also help document war crimes, keeping them in archives because a lot of things we cannot expose now. Filming and watching ‘de-occupation’ helps you comprehend what actually happened there and it completely changes your perception of many things, of the reality of Ukraine. I also believe that the idea ingrained in ‘de-occupation’ is a philosophical concept. What does de-occupation mean? You need to de-occupy not just your territory, a lot of things need to be liberated from Russian influence. What does it mean to rebuild the cities? What does it mean to bring back people who left? What does it all mean? Finding these answers is also part of our stories.   CJLPA : How did you bring light to those voices and the experiences of the locals you encountered that you met along the way? How did those stories help to define that term: ‘de-occupation’?   AM : Ukraїner had a vast range of friends and partners around Ukraine and beyond; sometimes it feels like your brain is a big village. Everyone knows each other, even though there are more than 40 million people in the Ukrainian pre-war population. You start to look for someone who knows someone who can find you someone else. It is always like this. You need to put a lot of effort into finding specific stories that are very representative. You could speak to many people. Sometimes, choosing the one that highlights the main issues is challenging. But when you do it, you can build a whole story out of it. Not all people can express themselves. Some people need to be motivated; some need a lot of time just to talk about their experiences and their trauma. I think putting light on specific stories and specific people is one of the main things about Ukraїner, its main advantage.   We are never looking for someone famous specifically. For example, if the mayor led the resistance during the occupation, we would speak to the mayor because he is a person who could give us a lot of information. But if, for example, the mayor left the city, then we do not care about him. Ukrainian civil society is built on the stories of citizens, farmers and villagers who were not afraid to do something crazy to save others or to resist the enemy.   It is not just some fancy people making a change. These people, these villagers who I have some personal stories about as well—for example, the friends of my mum, who were under occupation. One of them was talking to Russian soldiers as if they were children in kindergarten. How do they have the bravery for this? This resistance is what shows the Russians that they will never be able to win because even some random grandma in the village will just tell them to leave. We try to highlight this.   We also try to highlight how Ukrainians unite to resist because it is also vital; how they volunteer to support each other, or how they build some systematic approaches to resistance because this is also a perfect example of how you can survive occupation and what this kind of partisan movements looks like. Many stories that we recorded during the ‘de-occupation’ series are of people who fell victim to Russian war crimes. We give them space, we talk about it in a very accessible manner. It is a bit different than any direct interview, which is also very important, but it is a different approach. They take us to the places where they have been tortured and explain everything that happened there. This always helps us to have people as a central part of every story we make.   CJLPA : With the ongoing war, how have you balanced showcasing Ukraine’s beauty and culture and all of the people of Ukraine whilst also acknowledging the challenges, disruptions, and destruction caused by the war?   AM : I am not saying that we balance it very well. I ask myself these questions all the time, especially working with different language versions. I do understand the need to speak about Ukraine as a whole more. Then, something terrible happens, and you just cannot be silent about it, you need to react.   For me, it is evident that people worldwide are tired. Just telling some stories like we did at the beginning, not just Ukraїner, but in general as Ukraine, works differently now. You always need to find some angles and uncover new stories. Again, we have not yet balanced it that well. We are actively working towards this goal because we aim to showcase not only the impacts of the war but also how Ukrainians navigate through these times—what we do and how we live or resist in our daily lives. We make an effort to do so. Additionally, we are using stories from our archive, collected before the full-scale war, revisiting and repurposing them because their relevance persists. These stories significantly contribute to a deeper understanding of Ukraine. We are making efforts to translate and possibly create different versions of these narratives. I am hopeful that we will soon find the right balance.   CJLPA : Thank you so much for answering our questions. You do incredible work to showcase Ukraine’s culture and people and share its stories. This interview was conducted by Nour Kachi and Eleanor Taylor. Nour is a Legal Researcher for CJLPA's Special Edition, 'The Human Agenda'. In addition to his role at CJLPA, he is currently working on qualifying as a lawyer in the US and UK. Eleanor is a Legal Researcher and geography graduate from the University of Manchester, currently studying the SQE to pursue a career as a commercial solicitor. [1] The Revolution of Dignity and Euromaidan took place in Ukraine in February 2014, when deadly clashes between protesters and state forces in the capital, Kyiv, culminated in the ousting of elected President Viktor Yanukovych and a return to the 2004 Constitution of Ukraine. It also led to the outbreak of the Russo-Ukrainian War. [2] Education in the gymnasium is multidisciplinary, according to the extended program. It is enough to teach one foreign language at school, at least two at the gymnasium, and one from primary school. [3] Executed Renaissance refers to the spiritual-cultural and literary-artistic generations of the 1920s and 30s in the Ukrainian SSR, which produced artistic works in literature, philosophy, painting, music, theatre, and cinema, and which was mostly destroyed during the Great Terror. [4] The term Holodomor (death by hunger, in Ukrainian) refers to the starvation of millions of Ukrainians in 1932-3 as a result of Soviet policies. The Holodomor can be seen as the culmination of an assault by the Communist Party and Soviet state on the Ukrainian peasantry, who resisted Soviet policies. [5] The Zaporozhian Sich was a semi-autonomous Kozak polity modelled after a strict military organisation, a bastion where young Kozaks were trained by old Kozaks, hardened by the many marches and battles they had experienced. Sich was led by the Kish—a community consisting of 38 kurins (a military-administrative unit of several hundred Kozaks), headed by Ottomans. [6] See ‘Stories about Ukrainians. With English subs’ ( YouTube ) < https://www.youtube.com/playlist?list=PLb0qKWX9SJ7becFSHjVhgJC6aZcjAEAEb > accessed 10 March 2024. [7] See ‘National Minorities’ ( Ukraїner ) < https://www.ukrainer.net/thread-en/national-menshyny-en/ > accessed 10 March 2024. [8] See ‘Holodomor’ ( YouTube ) < https://www.youtube.com/playlist?list=PLb0qKWX9SJ7Y5HDHXJc0z0619Q7WNXmGh > accessed 10 March 2024. [9] The destruction of the Kakhovka hydroelectric dam is a war crime and potentially an act of ecocide committed by the occupying forces of the Russian Federation around 2:50am on 6 June 2023, during the Russian invasion of Ukraine. The Kakhovka HPP dam was mined and blown up, which led to its destruction. About 16,000 people are in the disaster zone, and about 80 settlements may be flooded as a result of the terrorist attack. [10] See ‘De-occupation’ ( YouTube ) < https://www.youtube.com/playlist?list=PLb0qKWX9SJ7bko_IpWuGkRymdeve3p6RZ > accessed 10 March 2024. [11] Malanka is a Ukrainian folk holiday celebrated on 13 January, which is New Year's Eve, equivalent to 31 December of the Julian calendar.

Wassim Hassan is a Syrian political activist. He is a member of the The Syrian Women's Political Movement and the Mouatana Movement, a group of Syrian democratic secular activists who devote their time to bringing the truth to Syrians through literature, media, and legal analysis on how they can change the political sphere in Syria. They aim to present the facts without affiliation to religious, nationalist, or leftist ideologies. Wassim has risked his safety on multiple occasions to stand up against the tyranny of the Syrian regime. He currently resides in the Netherlands after having to leave Syria due to the many threats on his life and to protect the safety of his family.   CJLPA : Welcome, Mr Wassim Hassan. I’d like to begin by thanking you for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art to discuss your story as a political activist and human rights fighter. Freedom of expression and democracy have been foreign concepts in Syria for the last 60 years, with one family controlling all aspects of government, education, military, and natural resources. Anyone with an opposing ideology to the regime is often persecuted in an improper justice system. Having spent a majority of your life living in Damascus, what influenced you to get into politics having known the risks this may have on your life and your family’s life?   Wassim Hassan : The deteriorating human rights conditions; the high levels of injustice; the absence of justice, freedom of expression, and participation in opinion; and the absence of equality and job opportunities force an oppressed person to enter the world of politics, especially after reading world history. The ancient and contemporary history of Syria prompted me to reject and denounce the reality of life in Syria, which is based on dictatorship, corruption, and criminality by an exclusionary mafia regime that exploits, plunders, practises atrocities, accumulates sectarian hatreds, discriminates between the people of the country, and invests in media propaganda. Slogans such as ‘resistance to imperialism, Israel, socialism, and freedom’ are used in order to perpetuate his rule and abolish the simplest mechanisms for practising democracy, such as the peaceful transfer of power and freedom of choice, expression, and media. This regime has abolished the independence of the legislative, judicial, and executive authorities, which passed over Syria for a short period in the 1950s, during the end of the colonial era.   The absence of rights, fairness of opportunity, and the right to expression and criticism prompted me to take an emotional and moral stand against this oppression and corruption, pushing me into the furnace of working in public affairs. Politics was forbidden to opponents except in basements and prison cells, so secret work was the only potential means of activism, and this is what I followed from the eighties until the mid-nineties as a member of the Arab Revolutionary Workers Party. After the invasion of Kuwait and the failure of the party, like other parties of the National Democratic Assembly, I left politics and got busy in my own engineering work and devoted myself to the affairs of my family and my daughters who came to the life of the nascent family, until the popular Intifada in March 2011. I ended up leaving all my successful engineering work to be in the right place among the people in confronting the corrupt junta and within the movement of the rising street for democracy and political change in Syria.   CJLPA :   Can you tell us of times where your activism has risked your or any of your colleagues ’ lives?   WH : My comrades were subjected to frequent arrest campaigns as a result of their secular, democratic political position and their opinion opposing the approach of Hafez al-Assad and the alliance he engineered in the ‘National Progressive Front’, where he gathered wings from leftist and nationalist parties loyal to his authority. Most of my comrades were subjected to incarcerations ranging from four to 26 years in the prisons of the authority. Later some of them were arrested and imprisoned in the detention centres of the heir, Bashar al-Assad, for up to six years.   During the uprising, my comrades were also subjected to many violations, such as abuse, forced disappearance, and liquidation in detention centres. Most of my comrades (95%) are in the prison cells of the authorities, and some of them were kidnapped in the prisons of extremist factions and gangs, which were later produced by corruption and the security vacuum.   Since the 1980s, I have personally been exposed to security questions from the Syrian secret police. In addition to my opposition to the current regime, my refusal to join the ruling Baath Party led me to be deprived of many job opportunities in advanced positions that were offered to me at the head of the engineering institutions where I worked.   Then, because of my secular position during the revolution, I was kidnapped by members of al-Nusra Front in the countryside of Damascus for three weeks, during which I was subjected to severe physical and psychological methods of torture, death threats, and ransom demands, until I was able to escape with the help of one of my colleagues who was kidnapped with me, through a very complex operation.   CJLPA : You are a member of the Mouatana Movement, a party looking to establish a secular democratic system within Syria. Can you please tell us more about your party’s ideology and policies?   WH : We are a group of secular democratic activists under the name ‘Mouatana Movement’. Our liberal movement and political line is characterised by political realism and the avoidance of intimidation and exaggerations in its proposition. We practise internal democracy in a horizontal organisation in which there is no leader or leaders, but a collective leadership elected in periodic conferences. We seek through our literature, our publications, through websites, and media to analyse reality without affiliation of religious, nationalist, or leftist ideologies. We have made a detailed criticism of the main lies spread among the elites and by the groups of Syrians mobilised with ideology and delusions that distort reality to serve their ideas.   The Mouatana Movement has entered and contributed to building several political alliances, including the ‘Syrian National Coalition for Revolutionary and Opposition Forces’, but we soon left it in 2017, for political reasons that we clarified in our departure letter. We also conducted a comprehensive critical review of our intellectual line, our role, and our discourse in our periodic conferences that try to build policies and present inspiring studies for a generation of change in Syria. We do this through political editorials on our website and through a political forum that hosts actors and active personalities to discuss the situation and provide the appropriate vision and analysis.   CJLPA : Can you touch on the importance of establishing a system that removes any religious influence in a diverse country like Syria?   WH : During my activism in the secular democracy, in general, and in work for the Syrian women’s political movement with many activists, we sought to spread the ideology of freedom and respect to others with a difference in opinion and by supporting marginalised groups and minorities in any field or level. Therefore this means supporting diversity, uniqueness, creativity and pluralism; preventing the domination of one group over the masses; preventing the monopoly of power control; and confronting oppression and dictatorship; and pushing for the achievement of equal citizenship and social justice; with respect for different religions, beliefs, and individual and collective choices within a democratic state through decentralisation, dominated by citizenship, the law, the independence of the judiciary, the media, and the freedom to establish organisations, unions, and parties as contemporary secular democratic systems.   Regarding your question about the importance of establishing a system that removes any religious influence in a diverse country, it is known that the Syrian society is multi-sectarian and ethnically diverse, and is predominantly Muslim. Therefore, it would not be possible to remove the influence of religion in society or completely cancel its influence through a decentralised democratic administration which the authority submits to a monolithic and exclusionary religious vision. Instead we rather the establishment of a state that respects all religious visions. The secular democratic state that we seek will not be an authority hostile to religions, but rather take a neutral approach towards beliefs; protect the freedom of religion; and prevent the oppression of any group over the rest, governed by law, equal citizenship, and equal opportunities.   CJLPA : Many young Syrians are not familiar with the oppression and atrocities that occurred under Hafez al-Assad due to the lack of transparent reporting at that time. Having experienced life under Hafez al-Assad, how would you describe the life of Syrians under Hafez al-Assad’s rule to people who are unaware?   WH : Hafez al-Assad seized power after his coup against his comrades in power and the leadership of the Baath Party on 16 November 1970. With his comrades, the members of the previous government he dissolved were imprisoned in Mezzeh prison   in Damascus for more than a quarter of a century. He pursued new policies characterised by hidden sectarian fanaticism. His rule aroused the ire of the Muslim Brotherhood, which, around 1976, in turn began assassination operations against Alawites and those close to the regime, carried out by extremists from the ‘Fighting Vanguard’, such as the massacre of Alawite students at the Military College in Aleppo in 1979, and the Azbakeya massacre in Damascus. This raised the level of mobilisation and incitement against them. Hafez al-Assad’s regime, in cooperation with his brother Rifaat and his officers, carried out many massacres, including in Jisr al-Shughur and Aleppo, and concluded them in Hama in 1982, in which thousands of civilians were killed, many of whom were innocent and not at all involved in the Muslim Brotherhood. The number of Islamist detainees in the famous Tadmor prison reached more than ten thousand, alongside the almost eight thousand liquidated on different occasions.   The nationalist and leftist parties that did not accept joining his mock front were also pursued by the coalition that al-Assad formed in 1974 to absorb the political workers and tame them with temptations and some formal roles, and present the democratic appearance of government, even if only formally. Those who rejected this alliance were imprisoned, including the new left, especially the Labor Party. The campaigns of arrests did not stop from 1976-1992, affecting most of the cadres and activists, and Palmyra desert prison was filled with them. Sednaya prison was subsequently established to accommodate thousands of prisoners of conscience. It also continued to track down activists and individuals and prevent gatherings and organisations under the blows of the emergency law that ruled the country. With the Baath’s takeover of power in 1963, political life in the country was completely desertified, opportunities for expression and freedom of the press were completely absent, and authoritarian and canned media prevailed without taste, colour, or smell, until the death of the tyrant Hafez al-Assad in the year 2000.   CJLPA : After the death of Hafez al-Assad in 2000, his son, Bashar al-Assad, took power and advertised himself as a reformist bringing change to Syria’s political system. What changes did Bashar al-Assad promise to make in regard to the Syrian government and were any of them ever enforced?   WH : Things had been arranged for the transfer of power without obstacles, as the People’s Assembly (parliament) held an emergency and urgent session, so the decision was taken to jump the son Bashar into five major military ranks, to become a first lieutenant general and commander of the army. The council unanimously amended the constitution with an article related to the age of the candidate for the presidency, making it 34 years old. The so-called Sham Ballot was held without competitors. Within the articles of the constitution detailed by al-Assad, the Baath Party was the leading party of the state and society, and the candidate of that leading party is not allowed to compete with anyone, who is of course in our case the heir, Bashar.   In his swearing-in speech on 17 July 2000, Bashar al-Assad made many promises, and began issuing frequent decrees suggesting the start of a new phase of modernization and development. For two years, living conditions improved slightly as intended, and some leniency appeared in the security forces’ grip on the population, but soon the situation returned to its previous state, following the US-British invasion of Iraq and the fall of Saddam Hussein in 2003, and after the assassination of Rafic Hariri in 2005 and Security Council Resolution 1559 to remove the Syrian forces from Lebanon, where confusion and fear prevailed in the ranks of the authority, with the defections and liquidations that took place (such as the defection of Vice President Abdel Halim Khaddam and the death of Interior Minister Ghazi Kanaan and several officers involved in the Hariri assassination). The security forces’ grip was tightened, and the opponents who signed the ‘Damascus for Democratic Change Declaration’ document were persecuted and closed the door to the activities of forums and committees to revive civil society, which had flourished after the oath speech mentioned above.   The Bashar al-Assad regime was able to evade the consequences of the International Tribunal for the assassination of Rafic Hariri, and the tribunal continued ineffectively, despite the crimes the regime committed against the Syrians over the years of the Syrian revolution since 2011, on top of which was the crime of using chemical weapons against opposition sites. In his famous speech a few days after its outbreak, al-Assad described that as a global conspiracy, comparing the rising opponents with germs that must be cleansed: ‘If they want it to be a war, then it will be’. The sectarian and Iranian militias, and later the Russian forces in 2015, did not hesitate to bomb cities and urban areas with barrels and chemical weapons.   In an interesting statement by Mustafa Tlass, a senior colleague of Hafez al-Assad, he says: ‘The fall of this regime requires a change in the form of the global system, because Hafez al-Assad has woven his regime into the fabric of the global system’. This raises a question about the nature of Assad’s authority and its functional role within the region and the global system after the end of the non-aligned system and the Soviet bloc, and the exploitation of the role of the military regimes leaping to power through coups, the role that Assad mastered and succeeded in playing, moving between the ropes of the Russians and the West. This constituted a guarantee for him to continue in the most complex international transformations and so far at least he has been successful, especially if we add the influence of Islamophobia and the Islamic awakening, and the fear of the development of the role of extremist political Islamic organisations in the era of the ‘Arab Spring’.   CJLPA : Hama faced one of the biggest massacres under the rule of the then-President Hafez al-Assad. The military force commanded by Rifaat al-Assad entered the city of Hama and conducted a series of bombing on buildings with civilian inhabitants. The government’s justification for their ‘military operations ’ was the need to eliminate the Muslim Brotherhood, having a disregard for any of the civilian casualties it took to get to that goal. Tens of thousands of casualties occurred, but due to the lack of reliable reporting at the time, the incident did not receive much coverage on a national or international basis. Can you please touch on the power of state propaganda in Syria, and how they have taken advantage of religious extremism to paint themselves as the ‘good guys’ or the ‘best option in Syria? ’   WH : Religious extremism is not confined to Syria and the Assad regime. It is religious fanaticism based on the legacies of the old authorities throughout the periods of caliphate and Islamic rule in the region, but it has exacerbated since the decline of the nationalist tide and later the leftism and the rise of the Islamic awakening. Enthusiasm for this awakening was increased by the victory of Khomeini in his ‘Islamic revolution’ in Iran in 1979 and the possibility of realising the dream of its sisters. We witnessed a remarkable development in the religious, especially Wahhabi and radical, organisations and their multiplication, leading to the phenomenon of Osama bin Laden and al-Qaeda and provoking international responses, especially from America and Russia.   Hafez al-Assad’s regime, like other international intelligence agencies, soon picked up on this to invest in the Islamic Awakening organisations. By virtue of the closeness of Assad’s authority and its understanding of this violent ideological environment, it was able to confront certain aspects and exploit others. Assad and his media excelled in demonising the popular movement in Syria since the first hours of the uprising. It was a choice for the extremist Islamists who struck terror among civilians in the West of Syria, while his regime and the mullahs’ regime in Iran and their militias did not attack in the cities of the West of Syria and played it cunningly. Better the devil you know, as they say.   The regime’s exploitation of the vertical division in Syrian society and the fear of minorities from the discourse of Sunni extremism, which began to spread on important media platforms such as al-Jazeera , Orient , and other sectarian channels and social media, prompted Christians and Druze to join the Alawites in their fears, and rally behind the regime’s masterful use of the propaganda of ‘opposition and resistance’. He was able to isolate, besiege, bombard, and destroy Sunni cities and displace their people under the pretext of confronting terrorist gangs.   CJLPA : Can you provide us with examples of how this playbook was used by Bashar al-Assad in the 2011 uprisings?   WH : Although the Syrian popular uprising presented general national concerns and did not rely on Islamic slogans at the outset, it was quickly exploited by the Islamic organisations formed in recent decades, whose role appeared since the first months, as important bombings and assassinations were carried out by al-Nusra Front. The role of al-Qaeda escalated after the Islamic State’s invasion of Iraq’s Mosul to Raqqa in Syria, and the Islamic factions grew like mushrooms following the support of the Gulf countries and their peoples for this phenomenon (Jaysh al-Islam, Ahrar al-Sham, Ahrar al-Sunna, and so on). It was not only the will of the Syrian intelligence behind this proliferation. The Islamic factions played the worst roles in the Syrian revolution and contributed to the exclusion of the other in their rhetoric and performance and their demonization of democracy, patriotism, and secularism.   CJLPA : In 2011, Syrians began to protest the government after decades of oppressive rule. This was one of the biggest acts of protest ever recorded in modern Syrian history. The Syrian government reacted with violence and by arresting the people involved in orchestrating the protests. What was your reaction when you knew that protests were taking place all around the major Syrian cities?   WH : The Syrians yearning for freedom were watching the ‘Arab Spring’ uprisings taking place in Tunisia and Egypt and then Libya and Yemen with great passion, and I was following the developments hour by hour, until the Syrian street moved in Damascus in the Hamidiyah market and in Daraa, the cradle of the revolution. I rushed to meet my old friends from political activists and we started by the founding of the ‘Mouatana Movement’; I was one of its activists dreaming of a new Syria. We met and discussed what to do and how to contribute to what was happening. Those were days full of fervour and vivid dreams when the barrier of fear was broken and the door to becoming in the country opened again after it had been locked away by Assad and the Baath for decades.   I participated with activists in the Sahnaya region in the Damascus countryside, taking every opportunity for demonstrations and sit-ins in the Damascus countryside, in al-Qadam, Darayya, al-Asali, Barzeh, Harasta, Douma, al-Qaboun, and Jdeidet Artouz. Soon, the demonstrations expanded and became every Friday. The Islamic discourse began to appear, so my activity focused during that period on participating in the demonstrations of As-Suwayda and contributing to them with many activists in Jabal al-Arab. This was done in the squares of Shula, al-Fukhar, Tishreen, al-Sir in As-Suwayda, and in the streets and squares of Shahba and al-Qurayyah. At that time, Fella of the mountain activists called upon us to participate in the Free Army in the Sultan al-Atrash Brigade, which was led by the martyr, Khaldoun Zain al-Din, an officer who defected from al-Assad’s army.   Later, with the escalation of the whistle of bullets and the decline of the voice of demonstrations, the armed Men of Dignity Movement emerged in the mountain. It hastened, with the fans of free and patriotic discourse behind it, away from the sectarian entrenchment that the regime and some religious Druze sought to corner it in. I worked as a political advisor to the leader of the movement from 2013-2015, the young Sheikh Waheed al-Balous, who put forward the political project that I worked on. The project worked on spreading his call with activists (the National Peace Initiative from As-Suwayda) and calling for a comprehensive national solution in Jabal al-Arab, more specifically in the town of al-Qurayya, the cradle of the national symbol Sultan al-Atrash. It would host a Syrian conference inclusive of all the parties to the Syrian conflict, which was turning into a complex civil war between Syrians (Sunnis-Alawites and minorities), provided that the conference be independent and under the auspices and protection of the Men of Dignity (perhaps the Druze who played a patriotic role in the establishment of Syria during the days of Sultan al-Atrash). The regime faced this by blowing up the convoy of the leader of the Men of Dignity (Waheed al-Balous) and his comrades with two large explosions in As-Suwayda. With the assassination, it almost destroyed that promising attempt.   During that period I was in a media course for the Citizen Movement in Gaziantep, Turkey, followed by a family visit to my daughter Razan, who was studying at a university in Istanbul at that time. I felt the difficulty of my return to Syria, where the Assad intelligence services were waiting for me at the airport, and made the decision to take refuge in Europe, where I live today.   CJLPA : With Syrians having access to social media sites, everyone in Syria who had an opposing ideology had the freedom to express it. How much of a role did social media play in the spread of the protests?   WH : There is no doubt that the means of communication contributed to the spread of news, the interaction of people, the exchange of messages, the participation in planning and organisation, and the speed of exchanging information. However, at the same time social media deluded a wide segment of the rising youth regarding their superiority, so they had some arrogance, and were thus not communicating with and benefiting from the wisdom of the older generations, who were more experienced with the nature of this brutal power. The young generation, with the rapid assimilation of new technologies, developed a feeling of fullness and contributed to an unfavourable rupture between young people and the previous generation, which was negatively reflected in the form and nature of the movement later on.   CJLPA : The violent reaction of the regime led to a brutal civil war that took the lives of thousands of Syrians and displaced millions around the world. Throughout the modern civil war, the Syrian regime committed a vast amount of war crimes by continuously using chemical weapons on civilian targets. What were your experiences living in Syria throughout the war?   WH : It became increasingly clear to me that the fall of the regime was not possible with the tools used in the past decade. The vertical division was great in the country, and the Alawite sect, alongside other sectarian minorities, were lined up strongly around power. This contradicts the statements of many that all the Syrian people revolted against Bashar al-Assad, and this should be corrected, as it is not enough for the opponents to repeat their desires and dreams, without realising the realities on the ground. On the basis of the existing sectarian division, the regime would not have fallen, as most of us dreamed, even if the army of Islam entered Damascus. Bashar al-Assad’s army would have gone to base itself with his supporters in Latakia and Tartous, and regained support from his allies later to attack those who outweighed him in other cities. One of the additional reasons for the inability of the opposition to achieve a decisive victory was the absence of military and political unity, not achieved at any stage since 2011, despite the contributions of the countries of the region and the West to bring together the Syrian factions and forces, in preparation for negotiations that can be conducted with the authority or with its representatives.   Many members of the Syrian opposition brazenly deny the reality of the support provided by the West to the Syrian revolution and accuse the West of negligence. Indeed, many consider the West supportive of the Assad regime, explaining what happened in terms of military and political interventions of the Russians, Iranians, and Turks, by American, French, and perhaps Israeli orders to maintain the continuity of their protégé, Bashar al-Assad, in in a series of conspiratorial interpretations of what is going on. These narratives unfairly deny and twist the facts.   As for the sanctions, they did not achieve a significant response from the tyrannical authorities that they were applied to in North Korea, Saddam’s Iraq’s, and Gaddafi’s Libya, where the authorities continue to oppress and increase the crushing of popular groups, in many cases under the pretext of those sanctions. Here originates the heavy blame on the West and the Americans, especially because their contribution to supporting the movement of the Syrian people and their just cause did not live up to the desired level as democratic governments and societies. The Americans only intervene when their interests are threatened and not for principled positions in support of democracy and for the sake of the peoples in the ‘Third World’, as they claim. Without military pressure, we will not have negotiations advancing, and there is no real military pressure on the authority of Damascus, which has benefited from its Russian and Iranian allies more than the Syrian people have benefited from their friends and allies. An exclusionary extremist no less tyrannical than Assad’s sectarian authority, unless the West seriously contributes to developing and bringing the democratic team in opposition and the loyalists to work together to save the country from the domination of the military and sheikhs.   I still believe that the Baathists—with all my observations on their exclusionary and corrupt behaviour—are included in the rhetoric of opposition and resistance, and they have a serious desire for independence from the Russian and Iranian allies. Although the Baath has no significant role and the party does not support the Assad security authority in Damascus, Damascus is still in their view the ‘beating heart of Arabism’ and they want to play this role. This is not to say, as many opponents believe, that the Syrian authority is fallen, crumbling, and just a tool that lacks will and does not sustain anything. Rather, Assad’s authority has great strength and influence on the scene, and it is still dominant over decision-making and in all previous and current stages, despite the misery in the economic and living scene. What is the point of a disaster? The security and military authority is in his hands in Damascus, and it is not right to underestimate facts and twist their necks to pass illusions and lies.   In conclusion, on the issue of accountability and justice, I believe that at the stage of calling for a political transition and a governing body that will include the two conflicting parties, justice cannot be achieved immediately—as agreed upon in accordance with international resolutions, for example—because the decision of the transitional government will be between hands that are unfortunately equally stained with blood. Justice will come later, after decades, if the fervour of struggle continues among legal and human rights organisations and institutions, as has happened in the experiences of other countries.   With the chances of establishing the Islamic caliphate state substantially declining after the intervention of the international coalition and the Syrian Democratic Forces, ending the state of ISIS, which is the worst alternative, the Assad regime with its allies is still the most dangerous enemy for building democracy in Syria. We need today to reach a settlement that stops the bloodbath and launches the process of political transition, in which all parties from all categories—Syrians, Arabs, Kurds, Muslims, Christians, minorities, organisations, etc—will participate. Thus, we will end the phase of the Assad regime’s monopoly, stop the war, start rebuilding the country, and launch the process of community recovery.   CJLPA : On an international level, how do you believe we can bring accountability and justice to the crimes committed, when countries like Russia and China constantly use their veto powers to stop any investigations from happening in Syria?   WH : With this international polarisation between the world of tyrannical tyrants (Russia, China, Iran…) and the democratic world in the West, especially after Putin’s war on Ukraine, the United Nations and the UN Security Council are no longer able to control the organisation of conflict management and reduction. The exacerbation of corporate control, the escalation of climate disasters, and the weakness of international commitment are all further hindrances on effective action. The great impact on the Syrian issue was in terms of enthusiasm to end the suffering of the Syrians, and also regarding accountability and justice. The reality has increased the living suffering and exacerbated the plight of the refugees in the countries of the diaspora close to Syria, and the veto that the Russians will frequently use in the Security Council is still a major obstacle, whether in holding war criminals accountable or in getting out of the bottleneck in the Syrian issue.   CJLPA : What do you think is the best course of action from within Syria?   WH : It goes without saying that the Syrian issue no longer concerns Syrians only, as the region and the international situation are strongly concerned with what is happening on Syrian territory. Therefore, I can claim that the continuation of work and civil movement within the country is necessary to prevent the situation from sinking. We must keep the flame hot.   The West remains extremely important in preventing Al-Jazzar’s rehabilitation and pushing the political transition process in accordance with the relevant international resolutions, most notably Resolution 2254. The policy of sanctions and slow death is no longer sufficient to destabilise the situation and push Assad’s arrogant authority to the negotiating table to make real concessions. Al-Assad’s authority still possesses some strength that prevents it from negotiating seriously with the opposition forces, whose negotiating and field power has begun to erode and decline. We need higher levels of force and pressure rather than just sanctions.   The launch of the As-Suwayda uprising in August 2023, which continues with its peacefulness and which is carried by a bright face for the Syrians (despite their differences and diversity) has brought many democratic and secular slogans and the necessity of political transition in accordance with international resolutions. The uprisings in ‘Dignity Square’ wrote the alternative discourse that the Syrians deserve in order to build a homeland. It accommodates all Syrians and achieves peace, freedom, and political and economic transition for the country, away from wars and in harmony with its regional surroundings. Within it, Syria does not remain a chess pawn in the game of regional countries such as Iran and Turkey. The Syrian people, despite their ethnic and racial diversity, have the right to live in dignity in a homeland that has many resources and reasons for growth to build a neutral state. Recently, it has become clear that betting on a religious caliphate or tyrannical regimes has failed, and it has become necessary for the obscurantist, exclusionary de facto forces or tyrannical authorities to retreat in favour of democracy and diversity. It is important to build on the Suwayda movement internally in order to move against the de facto forces currently there and to bet on building a body of Syrian democratic opposition. It is not like those residing in exclusionary Islamist Turkey. Rather, we have to build a democratic opposition centred in Europe, where there is the right of expression and the possibility of adopting free and independent Syrian policies. The Berlin conference to build the ‘Syrian Democratic Alliance’ held in October 2023 was a step in this direction, as it brought together many people of the political and civil forces in one front, and it has become a duty for the democratic forces in the world to support this trend in action and not just through the media. CJLPA : Now we see many Arab nations turning a blind eye to these atrocities by normalising relations with the Syrian government. It seems that the current regime is not going to be leaving power any time soon. Can you please tell us the dangers of normalising relations with the Assad regime?   WH : The project to rehabilitate al-Assad and normalise relations with his government before he submits to international resolutions is an additional disaster for the Syrian people. The solution in Syria is not the victory of any of the parties to the armed conflict, but rather the loss of all of them, in favour of a democratic, civil administration for the country with a project that brings together Syrians in a decentralised Syria for all Syrians, regardless of their plurality and diversity. Without the domination of the military or the Islamist extremists, and this is the least that the Syrians aspire to, it can open the horizons of the process in the country again. The continuation of Assad’s rule is nothing but a recipe for the continuation of tragedy, suffering, and death.   CJLPA : One aim of the Syria segment in the Journal  is to explore the challenges faced by refugees across the world in integrating in the countries they seek refuge in. We would like to ask you a few questions on the obstacles you faced integrating into the culture and lifestyle in the Netherlands. When did you decide to leave Syria and what was the sequence of events that led to your departure? Can you please touch on the challenges you faced in your journey leaving Syria?   WH : Leaving the homeland is a personal loss that cannot be compensated for in any way, regardless of the degree of integration with new societies. Forcibly uprooting a person from his soil is a great personal tragedy.   I went with my daughter Razan, facing, like all those who ride the sea in rubber boats on the way to Europe, severe threats to my life. This is what happened with our Syrian brothers who boarded the boat of the child Ilan, which sank on the shores of the Greek islands after sailing from the same point that we left the shores of Turkey. There is a great degree of manipulation; a large number of smugglers exploited and intimidated most of those wishing to leave by sea via Greece to Western Europe.   The other challenge comes after obtaining residency as a refugee and a newcomer in a new country with a different language and culture, and with the continuation of the Syrian ordeal. One’s personality in the country of asylum is divided between the path of self-building, learning the new language and integrating, and attachment to one’s family in war-torn Syria, continuing to hear about every violation or deterioration and the war crimes that frequently happened to my family and the country.   There is no doubt that the Netherlands offers an advanced package of services to newcomers, and this is the point of my appreciation and respect. Here we learned a lot, thanks to programs to support refugees and ensure they are living in dignity. We were allowed to exercise the right of expression and choice that we were denied so much in Syria, and later granted citizenship—available for those who wish after five years of residency—which paved the way for education and work. This added to our awareness and experience and will also have important role in the return of generations of Syrians, endowed with competencies and a human horizon that will contribute a lot to Syria.   CJLPA : You have continuously fought for the human rights of Syrians even after your departure from Syria. What is a piece of advice you would like to give to young Syrians around the world that are looking to make a change in their country?   WH : The great destitution and lack of human rights in Syria and its Arab and Islamic surroundings remains the main cause of the unrest there, and the first engine for the movement of young men and women. Therefore, the demands and uprisings will not stop, regardless of the cause of oppression and terrorism, such as the suppression and silencing of free voices. Here arises the role of the Syrian youth in the diaspora around the world to support their country. Syria is filled with ideas, money, and works that rekindle the movement for a democratic Syria for all, similar to the modern countries of the world. Our alienation in Europe taught us a lot about respect for difference and acceptance of diversity and human rights. We learned a lot through the decentralisation of its municipal governments, which ensures correcting mistakes and continuous progress according to the needs of each municipality. The benefits of elections and the importance of voting in them, the importance of political programs for candidates, development plans, the development and improvement of facilities, overcoming mistakes, and addressing them in law. We learned that a politician is an employee to serve his country and among his citizens and not a master over slaves who tyrannises them, and the importance of dialogue between cultures and their convergence to serve man and humanity, instead of fanaticism. This interview was conducted by Nour Kachi, Legal Researcher on CJLPA's Special Edition, 'The Human Agenda'. In addition to his role at CJLPA, Nour is currently working on qualifying as a lawyer in the US and UK.

We are the Restitution Study Group (RSG), a New York-based non-profit founded in 2000 to campaign for innovative approaches to healing the injuries of historically exploited people. We have supporters within and act on behalf of communities of descendants of transatlantic enslaved Africans globally. Since 2000, one of our primary efforts has been to secure restitution from organisations complicit in the enslavement of Africans between the 16th and 19th centuries by working in partnership with community advocates in litigation, legislation, genealogical research, and direct action.   In later years, our work has focused on fighting for our voices to be heard in relation to the artworks known as the Benin Bronzes. Crafted by master guild workers[1] in the Kingdom of Benin between 1500 and the 1800s,[2] these several thousand pieces proclaim key events in Benin history, showcase the divinity of the oba (the king of Benin), and celebrate the wealth and power of the Benin Kingdom. The bronzes are an important and dynamic spiritual, historical, and cultural link to our ancestors for us descendants of transatlantic enslaved Africans, and the homelands, language, and culture from which we have been separated. They are icons of our conflicted, multi-faceted identities. Some cultural institutions in the Western world have started to ‘repatriate’ bronzes to Nigeria (the modern-day location of the Kingdom of Benin). However, these bronzes have not been placed in a museum for the benefit of the public but have vanished into private hands. The loss of these cultural objects is made more egregious because the full provenance of the bronzes was not examined before they were ‘returned’. Below, we will explore the need for museums to engage properly in provenance research, and to implement more robust procedures, to ensure that the voices of all interested communities are heard.   Provenance   Taken from Benin City in a British raid in 1897, arguments around the bronzes’ restitution have narrowly focused on the alleged rights of the state of Nigeria to these artworks. However, there can be no doubt that the bronzes, cast from the currency of slavery, must be subject to the rights of the descendants of those whose lives were exchanged for their raw material.   We know from contemporary records that manilla bracelets, made from metal mined in central and northern Europe, were used as currency by European slavers, and exchanged with local slavers (including contemporary obas and Benin Kingdom slave traders) in return for enslaved Africans. Recent, cutting-edge scientific research has proven this beyond any doubt, as Dr Tobias Skowronek’s pioneering study of the metallurgical composition of the manillas used by the Kingdom of Benin metalworkers has demonstrated. In Dr Skowronek’s words:   Although the importance of European brass, including the potential role of Rhenish sources, in African casting industries has long been recognized, this study definitively identifies the Rhineland as the principal source of manillas at the opening of the Portuguese trade. Millions of these artefacts were sent to West Africa where they likely provided the major, virtually the only, source of brass for West African casters between the 15th and the 18th centuries, including serving as the principal metal source of the Benin Bronzes. […] Manillas had no purpose in European societies: they were a product specifically produced for the African trade and it is clear from documentary sources that Africans were selective in the products they accepted. Edo metalsmiths were likely well aware of the better casting qualities of the Portuguese ‘tacoais’ type manillas, and these were subsequently demanded in trade. Ongoing research may afford additional insights into other West African casting traditions.[3]   The currency given in exchange for enslaved people represents those lives lost.[4] We know that in the 16th century, an adult female West African cost 50 manillas; an adult male cost 57.[5] How many destroyed lives therefore does a single Benin Bronze represent? How many displaced families? The bronzes serve as votive vessels for our ancestors’ souls and their memories. They are priceless not because of their artistic merit, but because of this potent spiritual dimension. Western institutions justify handing bronzes over to the descendants of the Oba and Nigerian slavers (those who were not uprooted from their homeland) on the basis of the 1897 conflict, without listening to the voices of us descendants of transatlantic enslaved Africans, who to this day encounter racism and oppression in different parts of the world. Therefore, in order to fully assess any claim made in respect of the bronzes, it is not enough to look to the events of 1897, but rather it is necessary to face the uncomfortable truth about exactly who was involved in the trade of our ancestors, and the rights this confers on descendants of transatlantic enslaved Africans today.   How Claims Ought to be Assessed   Whilst there is no one consensus amongst museums as to how restitution and repatriation claims should be dealt with, there are common threads. The main issues around eligibility usually focus on the circumstances in which the objects were taken (whether there was any illegality/compulsion); the cultural or spiritual significance of the objects to a particular community or nation; and the historical and scholarly importance of the objects. Above all, close attention must be paid to the moral force of any given claim. Restitution claims are one of the few areas where a moral argument may override legal title, especially as institutions across the world feel increasingly called upon to ‘do the right thing’. The Restitution Study Group has sent letters setting out the moral arguments and our community’s interests in, and rights to, the Benin Bronzes to numerous stakeholders, starting in 2022, before  most repatriation decisions were taken.   Once the institution’s process for hearing the claim begins, there is no consensus on the steps that should be followed. However, there are instructive guidelines. The Arts Council England has published detailed guidelines entitled ‘Restitution and Repatriation: A Practical Guide for Museums in England’,[6] which offer a wealth of instructive information on the steps institutions should  follow when dealing with claims. For example, they should investigate the claim by carrying out (where necessary) further research; they should meet with the claimant to discuss their aims; and they should prepare a report on the claim, to be considered by an independent decision-making body. Following such steps, they should ensure that there is transparency, fairness, and collaboration for all claimant parties throughout the claim process.   Given this overarching focus on the moral impetus of a claim, it is astonishing that institutions have not conducted full provenance research before ‘repatriating’ the bronzes, and that the claims of descendants of transatlantic enslaved Africans has been ignored in this sphere. Institutions cannot assert that repatriation has been made on moral grounds, when they are handing over objects to the descendants of elite Africans and have failed to even engage with the claims of the descendants of the enslaved, for whom the bronzes hold almost sacred significance.   The Need for Ongoing Debate: A Revised Approach   The descendant community’s rights to and interests in the bronzes have been ignored for too long. Western institutions have adopted a reductive and indeed proto-colonial approach to the bronzes’ provenance by focusing solely on the British raid in 1897 and ignoring the circumstances in which the bronzes were created in the first place and the material from which they were cast.   Because descendants of transatlantic enslaved Africans continue to be excluded from the ‘dialogue’ around the Benin Bronzes, access to which is tightly regulated by museum curators and Western state representatives, such exclusion is perpetuating the same inequalities that once led to the bronzes’ creation. Indeed, a handful of museums have already ‘jumped the gun’ and ‘returned’ bronzes to Nigeria, while proudly announcing their supposedly anti-racist and anti-imperial credentials on all available channels. This has happened despite our protestations of the fact that those bronzes have since been transferred to a private collection in Nigeria. They are now exceedingly unlikely to be accessible to the general public in Nigeria, let alone to members of our community.[7] The bronzes were not so much ‘returned’ as simply ‘handed over’.   The presumption of a number of Western institutions has been that they do not need to consult with us, nor even hear us out. These acts of ‘restitution’ are a fiasco and represent an incalculable loss to our community.   Framing the debate in a way that ignores much of the objects’ provenance is not only historically inaccurate but allows West African elites to avoid taking responsibility for their communities’ historic role in the slave trade. There is virtually no chance that the objects will remain accessible to our community once they have been handed over to private collections in West Africa. The spiritual connection we have with the bronzes will be forever lost, as will be the educational opportunity and the chance to find innovative ways of healing and overcoming painful aspects of the history of slavery, which literally is not  ‘black and white’. This is not something any institution of learning and education should take lightly. Unfortunately, this statement must be directed at the University of Cambridge, too.   The origins of the bronzes lie in slavery. The act of forcing people into chattel enslavement—capturing them; shackling them like animals; taking them away from their country and homeland; and transporting them overseas in squalid conditions in order to undertake forced and unpaid labour—is one of the most egregious and harrowing examples of concerted, organised violence in human history. Indeed, according to the Transatlantic Slave Trade Database, between 1525 and 1866, 12.5 million African people were enslaved and transported to the New World. Two million of those captives died on the voyage in appalling conditions, from disease, malnutrition, and, in some cases, murder.[8]   Slavery remains a problem to this very day. A recent CNN report has revealed how Benin City is the heart of modern-day human trafficking.[9] A meaningful debate about the Benin Bronzes requires consideration of history without editing out those parts that may be uncomfortable for African elites today. That includes inviting the government of Nigeria and the oba of Benin to examine the roles that their communities played in perpetuating violence against fellow West Africans, which led to them using the proceeds of slavery that are the starting point in the bronzes’ provenance chain. To hand over further bronzes to Nigeria and/or the oba or his family, without having this discussion with descendants of transatlantic enslaved Africans, thereby denying us any  say in the future of the bronzes, would be like enslaving our ancestors all over again. Our voice must be heard. Deadria Farmer-Paellmann, Esther Xosei, and Sheila Camaroti Silva Deadria Farmer-Paellmann is a lawyer and the executive director of RSG. Her pioneering work has led to legislative change in New York concerning the roles of American banks in financing chattel enslavement and the transatlantic slave trade, and today she coordinates the campaign for joint rights over the Benin bronzes for descendants of transatlantic enslaved Africans globally.   Esther Xosei is a leading scholar and activist in the International Social Movement for Afrikan Reparations in the UK. She is co-vice chair of the Pan-Afrikan Reparations Coalition in Europe and serves as the legal advisor for the Stop the Maangamizi: We Charge Genocide/ Ecocide Campaign.   Sheila Camaroti Silva is a Brazilian descendant of enslaved Africans. Now resident in Germany, she campaigns for greater historical literacy around slavery and forced migrations and is an advocate for RSG’s work globally. [1] Barnaby Phillips, Loot: Britain and the Benin Bronzes  (Simon and Schuster 2021) 6: ‘For hundreds of years, the Igun Eronmwon guild worked for its one and only patron, the oba. He provided security—slaves, money, and other gifts—but little freedom’. [2] See Oriiz Onuwajeobaro Ikime, The Benin Monarchy: An Anthology of Benin History  (Whitefox Publishing Ltd 2020) 205. [3] See Tobias B Skowronek et al, ‘German brass for Benin Bronzes: Geochemical analysis insights into the early Atlantic trade’ (2023) 18(4) PLOS ONE e0283415. [4] Dan Hicks, The Brutish Museums: The Benin Bronzes, Colonial Violence and Cultural Restitution  (Pluto Press 2020) 219: ‘Most [bronzes] were cast from brass, melting down the manillas and wire that the copper producers of Bristol, London and Liverpool traded for enslaved people, transforming the very substance of a transaction between humanity and inhumanity, objecthood and subjecthood, and forming memory markers for significant events’. [5]   Bryan Freyer, Royal Art of Benin: In the Collection of the National Museum of African Art  (Smithsonian 1987) 54. [6] Arts Council England, ‘Restitution and repatriation: a practical guide for museums in England’ ( Arts Council England ) < https://www.artscouncil.org.uk/supporting-arts-museums-and-libraries/supporting-collections-and-cultural-property/restitution-and-repatriation-practical-guide-museums-england > accessed 10 April 2024. [7] Oliver Moody, ‘Berlin’s Benin bronze return a fiasco as artefacts vanish’ The Times (London, 8 May 2023), < https://www.thetimes.co.uk/article/berlins-benin-bronze-return-a-fiasco-as-artefacts-vanish-jq9xsn9cf > accessed 10 April 2024. [8] ‘Trans-Atlantic Slave Trade Database’ ( Slave Voyages ) < https://www.slavevoyages.org/voyage/database > accessed 10 April 2024. [9] Nima Elbagir, Hassan John, and Lillian Leposo, ‘A smuggler’s chilling warning’ ( CNN World , 27 February 2018). See Phillips (n 1) 32: ‘slavery had existed in Edo society before the Europeans arrived and would continue after Europeans had abandoned the trade’.

‘It is authority and not truth that makes the law’[1] German philosopher Hannah Arendt says in her book On Violence : ‘The authority does not need to be justified itself, because it is an organic part of the existence of political groups, but it needs legitimacy. As for violence, it can sometimes be justified, but it’s impossible, and absolutely, to be legitimate’.[2] This leads us to the main question which this paper tries to analyse and respond to, taking the Syrian authority in place since 1963 as a case study: How does political authority legitimise violence against its opponents?   Utilising Arendt’s definitions in her book The Origins of Totalitarianism , one can distinguish between two eras. The first is the era of Hafez al-Assad (1970-2000). This was a secret police state, according to Arendt’s introduction of the Bolshevik model in Stalinist. The second is the era of Bashar al-Assad (2000-present), who surpassed his father using violence, and moved Syria to a totalitarian domination model during his office. This distinction is vital for understanding the presence of violence in the state structure and its relationship to the ruling authority in Syria. What distinguishes the Syrian experience from the Bolshevik and Nazi political systems studied by Arendt is that it did not carry the ideology of socialism or the supreme racial superiority to ensure its control to the same extent. Instead, it was an authority that came with the power of violence and domination through it from the very beginning.   After nearly a decade of seizing power, Hafez al-Assad developed his theory of fighting the enemy so that his institutional identity for violence became the need to fight the external or internal enemy in times of war and peace. The enemy is the enemy of the nation, the homeland, and the President: al-Assad systematically eliminated any separation between these areas. With time, state institutions lost any actual control over violence, especially after the 2011 revolution, which allowed violence to swallow everything in return for him staying in power. As Arendt writes, the stage in which the ‘police state began to eat its children’, is the stage of totalitarian domination based on terrorism.[3]   The relationship of violence to the state has been debated for a long time. In his lecture Politics as a Vocation , the German sociologist Max Weber famously defined the state as following: ‘We have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory…The state is considered the sole source of the “right” to use violence’.[4] States use violence to ensure public order, but this use is always possible to question in democratic countries that allow accountability by an independent press and an independent judiciary. But in dictatorships, such as the Syrian regime, violence goes beyond its role of protecting the people or public security, despite slogans maintained by dictatorial authorities. Rather, violence moves to play a constitutive role in the production and maintenance of political power itself in authoritarian regimes. Moreover, when political authority depends on violence in this way, law becomes a tool to legitimise the violence.   Authoritarian political authorities control and use law not only as a monopoly of legitimate symbolic violence, but to legalise violence, to ensure that they remain the only party that has the legal right to practice violence and ensure that they remain in power by practicing this violence, ie, by using its power as a state. As the German jurist Carl Schmitt—who was close to the Nazi Party—suggests, legal orders are based on sovereign decisions, and not legal norms.[5] So, in the discussion of the relationship between violence and legitimacy, we can ask: How does a political system which monopolises the power of law use this legal order to justify its violence?   By studying the Syrian case during the rule of the Assad regime (father and son), bearing in mind that this regime relied on historical, legal, or political precedents, we attempt to answer this question. For this purpose, the study is based on qualitative research, and draws on the work of Arendt, Weber, and Schmitt. The analysis of how law is used to legitimise state violence also utilises the theories of French sociologist Pierre Bourdieu, in his article The Force of Law , and particularly the concept of the legal field. Because of the difficulties imposed by the Syrian government in accessing information—in particular related to human rights issues—it was not possible to rely on official government data. But with the help of reports by human rights organisations, we were able to document indicators of the violence of the regime. This is in addition to the use of press articles, studies by Syrian human rights defenders, and present humanitarian examples of victims of legal violence in Syria who were arrested and tried before exceptional judicial bodies and spent 10-17 years in prison.   Foundational violence: the juridical field in Syria   This study suggests that the Syrian authority legitimises its violence by relying on law. According to Arendt, this legal approach puts together practice and discourse to normalise violence and thus shifts the question from: What is moral, to what is legal?   The significance of this normalisation of violence is explained by Bourdieu as follows: ‘It makes sense that, in a complex society, the universalization effect is one of the mechanisms, and no doubt one of the most powerful, producing symbolic domination (or, if one prefers to call it that, the imposition of legitimacy in a social order). When the legal norm makes the practical principles of the symbolically dominant style of living official…The universalization effect, which one could also term the normalization effect, functions to heighten the effect of social authority already exercised by the legitimate culture and by those who control it. It thereby complements the practical power of legal constraint’.[6] Bourdieu also notes that: ‘The law is the quintessential form of “active” discourse, able by its own operation to produce its effects. It would not be excessive to say that it creates the social world, but only if we remember that it is this world which first creates the law’.[7] In Syria, it is the Sovereign Dictatorship who created the law. The effect of legal action turns into a legitimisation of the practices of this political authority, and normalisation of violence in terms of being one of the effects of the legal action itself. Accordingly, the law is not only a tool of authority—as Bourdieu points out—but also an attempt to formulate authority as a legal authority and ensure its continuity. As Bourdieu writes: ‘Juridical labor has multiple effects. It provides the guarantee that, in the absence of a revolution which would upset the very foundation of the juridical order, the future will resemble what has gone before’.[8]   Discussing the legalisation of state violence also motivates an engagement with Schmitt’s work. Schmitt linked power to the ability to define law and the exception to it. In his words: ‘the sovereign is he who decides on the state of exception: If there is some person or institution, in a given polity, capable of bringing about a total suspension of the law and then to use extra-legal force to normalize the situation, then that person or institution is the sovereign in that polity’.[9] Moreover, Schmitt reasons that: ‘If a sovereign, so understood, exists, its authority to suspend the law does not stand in need of positive legal recognition, since the law’s applicability itself depends on a situation of normality secured by the sovereign’.[10] This jurisprudence theorising established for Schmitt the legitimacy of absolute dictatorship, or what Arendt would later call ‘Totalitarianism’, characterised by terror. As Schmitt argues: ‘The question of the legitimacy of law thus turns on the question of the legitimacy of an identity-constituting sovereign exercise of foundational violence’.[11]   In Syria, Hafez al-Assad succeeded—by playing a leading role in formulating the 1963 military coup, and then his personal, white coup against the party’s comrades in 1970—in making himself the person with the ability to determine the exception. This power of sovereignty enabled al-Assad to determine the exception when he declared himself president of the country and ensure that emergency laws continued in Syria for 49 years. With al-Assad, foundational violence became identity-constituting sovereign, and the basis of al-Assad’s legitimacy as sovereign dictator.    Since emergency laws give power to the government to the detriment of the juridical field, then the juridical field in Syria cannot be understood without reading it as a field created by a dictatorial authority whose constituent identity is violence. Accordingly, there is no autonomy of the legal field from the state, which brings to mind Hobbes’s dictum that: ‘It is authority and not truth that makes the law’.[12]   Yet, al-Assad needed to justify this violence, and for that he needed a common political identity. As Schmitt argues: ‘A sovereign dictator is a dictator who does not defend an already existing constitution but attempts to create a new one and who does so not by his own authority but in the name of the people’.[13] Thus, in the name of the people, al-Assad used emergency law. Even the constitution, which he tailored and implemented to suit his will and interpretations, was limited by the upper authority of emergency law. For example, he did not designate himself as the head of the country’s Supreme Constitutional Court, which consists of 11 members. However, all these members are named and appointed by him.   Al-Assad sought to eliminate all his political opponents and present a model of terror that Syrians would not easily override. In the 1980s, al-Assad enabled his power as sole ruler through two violent incidents, which are not the only ones, but are foundational in understanding the legitimating identity of violence. The first, known as ‘Hama massacre’ is one of the founding events of the direct, broad-spectrum violence of the al-Assad police state. Second is the campaign of arrests of all his opponents, which effectively killed political life in Syria.   In his definition of what he called the ‘juridical field’, Bourdieu remarked the following: ‘The social practices of the law are in fact the product of the functioning of a “field” whose specific logic is determined by two factors: on the one hand, by the specific power relations which give it its structure and which order the competitive struggles (or, more precisely, the conflicts over competence) that occur within it; and on the other hand, by the internal logic of juridical functioning which constantly constrains the range of possible actions and, thereby, limits the realm of specifically juridical solutions’.[14]   Detailed analysis will show that the juridical field in Syria was established during the rule of the al-Assad family, according to the rule of exception established by Schmitt, which radically changed its logic. Therefore, this study discusses the legal field established according to the status of the exception.   The emergency law issued by Legislative Decree No. 51 in 1962 stipulated two main articles. Article 2 read: ‘The state of emergency is declared by a decree taken in the Council of Ministers convened under the chairmanship of the President of the Republic and by a two-thirds majority of its members, provided that it is presented to the House of Representatives in its first meeting’.[15] Paragraph (b) of Article 3 added: ‘The decree determines the restrictions and measures that the martial ruler may take as stipulated in Article 4 of this Legislative Decree without prejudice to the provisions of Article 5 thereof’.[16] But in reality, the leaders of the 1963 military coup were the ones who announced the implementation of the emergency law, and the same declaration was satisfied with repealing the decree and thus eliminating what was stipulated in paragraph (b).   We could not find the official text of Military Decree No. (2) of 1963 that reiterated the emergency law enforcement. However, we found press articles that refer to it as follows: ‘The state of emergency is declared in all parts of the Syrian Arab Republic and even Further notice’, but without specifying the exact source. This was not announced in a decree published in the official newspapers, but rather through what is known as Statement No. (2) that follows the Military Statement No. (1) announcing the military coup.   The legal order in Syria—as Schmitt concludes—‘is based on a sovereign decision and not on a legal norm’.[17] A sovereign decision based on exception. The exception according to which the juridical field was established in Syria is manifested not only by the exceptional declaration of the emergency law itself but also by not providing any specifics. Consequently, the Sovereign, in this case Hafez al-Assad, was free to draw up mechanisms and measures for implementing the state of emergency according to his will. Thus al-Assad defined positive laws and formed the mechanisms for implementing violence within a legal frame.   Based on this exception, free of time limitations, the sovereign authority has established exceptional judicial bodies, such as the Supreme State Security (SSSC) and, later, the Terrorism Cases Court. These two bodies, as well as the Military Field Court, are all exceptional forms without any timeframe for their mission. The court operates as long as the exceptional laws exist, with no ceiling to its mission. In fact, the SSSC was not abolished until the 2011 revolution, and Military Field Court was only abolished 3 September 2023.[18]   The absence of time restrictions for these exceptional judicial bodies is the second characteristic of the legal field which, congruent with the absence of the finiteness of time at the formal narrative and the ideological slogans of power, emphasise the infinity, the eternity, and the absolute permanence of this exception.   Building on the legitimacy of power in defining the exceptional, the juridical field in Syria was built as a field to regulate the domination of the dictator or the leader of the ruling party. Max Weber describes this as ‘organized hegemony’, which ‘calls for continuous administration, requires that human conduct be conditioned to obedience towards those masters who claim to be the bearers of legitimate power. On the other hand, by virtue of this obedience, organized domination requires the control of those material goods which in a given case are necessary for the use of physical violence’.[19]   While the separation of legislative, executive, and judicial powers are one of the conditions for democratic state, in the Syrian model organised domination was represented by the president’s monopoly of those three powers, in the text of the constitution. The following articles are examples of the 2012 constitution that al-Assad approved after the 2011 revolution. Still, it was a legal aim to impose more domination that derives its legitimacy from a constitutional text.   Article 105: The President of the Republic is the Commander in Chief of the army and armed forces; he issues all the decisions necessary to exercise this authority. He might delegate some of these authorities. Article 108: Power to pardon. The President of the Republic grants special amnesty and might reinstate individuals. Article 111: 1. The President of the Republic might decide to dissolve the People’s Assembly in a justified decision he makes. Article 132: The judicial authority is independent; and the President of the Republic ensures this independence assisted by the Supreme Judicial Council. Establishment of judicial council Article 133: 1. The Supreme Judicial Council is headed by the President of the Republic; and the law states the way it shall be formed, its mandate and its rules of procedures.[20] This monopoly of domination breaks the conditions of the legal game referred to by Bourdieu: ‘The juridical field is a social space organized around the conversion of direct conflict between directly concerned parties into juridically regulated debate between professionals acting by proxy. It is also the space in which such debate functions. These professionals have in common their knowledge and their acceptance of the rules of the legal game’.[21] In Syria, this legal field formed based on exception does not recognise the balance of power between the dominant parties. It is not a field of organising discussion, but rather a field for imposing the domination and control of one party over another. Upon that, a judge is no longer a ‘mediating party’ but rather an implementer of the political will. Even some judicial bodies did not require legal knowledge when appointing the head of the judicial body but instead focused on his military rank, as in Military Field Court.   In the Assad regime, and as Arendt says: ‘In these ideologies, the word “law” constantly changes its meaning. Instead of being a fixed framework where human movements and actions take their place, the latter has become an expression of the movement itself’.[22] With this, the law is not a field of punitive action only. The imposition of power is manifested through prohibition and criminalisation, punishing opponents, and rewarding loyalists.   This protection code eliminated any possibility of establishing what is known as the state of law. The loyal men, members of the security establishment, are above the law and are even protected by it. So al-Assad, the father, and then Bashar al-Assad, released a set of decrees that would protect the agents and members of this institution from legal accountability. Whereas ‘agents of the intelligence services (Military Intelligence, Air Force Intelligence, and General Intelligence) are protected from prosecution by Article 16 of the law establishing the State Security Administration issued by Legislative Decree No.14 and by Article 74 of the Law of Internal Organisations of the Administration State security and the rules of service for its employees issued by Legislative Decree No. 549.   The texts of these two articles is as follows: Article (16): It is not permissible to prosecute any of the employees of the State Security Department for crimes they commit while carrying out the specific tasks entrusted to them or in the course of carrying out them except by a prosecution order issued by the director. Article (74): It is not permissible to prosecute any of the employees of the State Security Department, or those who are seconded or seconded to it, or those who contract with it directly before the judiciary, in the crimes arising from the job, or in the course of carrying it out before referring it to the disciplinary board in the administration and issuing a prosecution order by the director.[23]   In 2008, three years before the outbreak of the Syrian revolution, Bashar Al-Assad issued Legislative Decree No. 69, which amended the Syrian Military Penal Code . The articles of this new decree stipulated limiting the decision to prosecute police, political security, and customs personnel accused of practicing torture to the General Command of the Army and Armed Forces, even though they report administratively to the Ministry of Interior. Noting that in 2004 Syria ratified the Convention against Torture, the intelligence services in Syria, or the secret police in Germany, are both, as Arendt says: ‘an embodiment of law itself’.[24]   The authority in Syria does not face a conflict from any other party in the interpretation of the legal text but possesses complete control, or absolute appropriation, in its determination and application. According to Bourdieu: ‘Control of the legal text is the prize in interpretive struggles’.[25] So, al-Assad ensured by his possession of the Exception Report that only his power was to read, interpret, and reframe the legal text, as Hafez al-Assad did when he amended the work of the Military Field Court to include times of peace as well as war.[26] In its language, provisions, and applications, the legal text is a means and a tool of political authority to suppress public freedoms and control the masses..   Legal language and the normalisation of stigma Attempting to understand the impact of the legal field in Syria requires researching what Bourdieu called the normalisation of violence. As Bourdieu explains: ‘The law, an intrinsically powerful discourse coupled with the physical means to impose compliance on others, can be seen as a quintessential instrument of normalization’.   Since the time of the father, Syrian authority succeeded in merging its legal discourse with its official discourse, to produce a normalisation of violence that pervades the entire society. Opponents of the state have lost their humanity through the repetition of the official narrative vocabulary in official speeches, in the media, slogans, and as well as in forced daily repetition in schools, by words which announce political opponents as if they are enemies.   The Syrian totalitarian authority spreads terror and fear of the other. The enemy is an enemy of the ideology, the regime, the president, the security establishment, the army, and most importantly, an enemy of the state. Any violation made by an opponent, activist, writer, or whoever, is considered a violation or not by the security agents as they are the representatives of the president. These are the ones who have the authority and the right to determine if there is a betrayal committed.   Although the legal text does claim to defend the nation, the arbitrariness of its power is revealed by the arbitrariness of sentencing. As Arendt writes in The Origins of Totalitarianism : ‘The aforementioned totalitarian regime only acted under the guidance of the law, but not as the Nazi or Bolshevik regime claimed that its laws were derived from the laws of nature and history’.[27] The Assad regime’s laws stemmed only from the sovereign dictatorship and the will of the ruling individual.   Totalitarian legitimacy here makes an exception with the aim of saving the loyal group, and saving itself from what Arendt refers to as the ‘objective enemy’, who here has become the enemy of the ‘nation’, which is itself the homeland, security, and represented in the person of the individual dictator.[28] So, laws—whether exceptional laws or ordinary—become a representation of an action to eliminate the objective enemy.   The nation, the revolution, the party, the symbols of the state: this is a vocabulary repeated in Syrian laws, which Syrians know very well. In their morning slogans they were forced to repeat it throughout their lives. They know these words, but not their meaning. They are—as they appear in the Syrian Penal Code—empty and unidentifiable words. But this ensures that enforcers of state authority can arrest individuals, torture them, and keep them in prison for many years. Specifically, it includes the following articles, many of which have equivalents in democratic or republican regimes such as France.   Article 278 of the Penal Code: Whoever undertaking acts, writings, or speech unauthorized by the government that exposes Syria to the danger of belligerent acts or that disrupt Syria’s ties to foreign states. Article 285 of the Penal Code: Whoever, during wartime or when it is expected to break out, issuing calls that weaken national sentiment or awaken racial or sectarian tensions while Syria is at war or is expecting a war. Article 286 of the Penal Code: Whoever reports in Syria news which he knows that are false or exaggerated information that weakens national sentiment while Syria is at war or is expecting a war. Article 307 of the Penal Code: every act, every writing, and every speech intended or results in provoking sectarian or racial strife.[29]   There is no accurate count in Syria of the number of prisoners of conscience who have been prosecuted according to these two articles (285-286). But by analogy, Human Rights Watch reports in its 2009 report Far from Justice  that, according to the observation they conducted for the hearings trial of detainees of conscience in Syria before the Supreme State Security court :   Of the 237 cases it is known to have decided since January 2007, the SSSC sentenced at least 153 of the defendants on the basis of vague and overbroad offenses, such as ‘issuing calls that awaken racial or sectarian tensions’, spreading ‘false or exaggerated information that weakens national sentiment’, or undertaking ‘acts that…disrupt Syria’s ties to foreign states’. The Syrian government has long relied on such broadly worded ‘security’ provisions in its penal code, primarily based on speech or writings, as its primarily lever to silence critics, or perceived critics.[30]   According to the report, the ratios were distributed as follows:   (34) People were tried according to Article (278). / (104) people were tried according to Article (285). / (6) People were tried according to Article (286). / (9) People were tried according to Article (307).[31]   The Media Law Promulgated No.108 of 2011 provides a clear example of the problematic legal language, in terms of being an unmeasurable rhetorical language that allows a wide scope for the sovereign authority to exert violence on whoever it wants.   Article 12: The media is prohibited from publishing… 1. Any content that would prejudice the national unity, and the national security, or offend divine religions and religious beliefs, or stir sectarian or doctrinal strife. 2. Any content that incites the commission of crimes and acts of violence and terrorism or incites hatred and racism. 3. News and information related to the army and the armed forces, except for what is issued by the army and the armed forces, and it is permitted to publish it. 4. All that is prohibited from being published in the 'General Penal Code' and the legislation in force, and everything that is prohibited by the courts from publishing it. 5. Everything that affects the country’s symbols.[32]   But who can say what the ‘country’s symbols’ are and what ‘touches them’? According to Bourdieu: ‘Law is the quintessential form of the symbolic power of naming that creates the things named, and creates social groups in particular. It confers upon the reality which arises from its classificatory operations the maximum permanence that any social entity has the power to confer upon another, the permanence which we attribute to objects’.[33] This means that Assad’s sovereign authority used laws to implement its political identity. As Schmitt argues, ‘identification is possible only in virtue of the prior identity of all citizens as members of a group constituted by a shared friend-enemy distinction’.[34]   After March 2011, the Syrian media used inflammatory vocabulary that divided the Syrian population into ‘honourable citizens’, ‘infiltrated citizens’, and ‘traitors’. Another time, as ‘agents’ as well as ‘the Salafists’. The media used the worst kind of discourse when it stigmatised the protesters as nothing more than traitorous foreign tools, inciting calls to kill and drag them. Examples include the Al-Dunya  channel’s report on Talbisa in Homs, on 5 November 2011, or worse, its report after the mascara of Daria on 25 August 2012.[35]   We can classify some of the words being used into two categories: With the Syrian regime Against the Syrian regime Citizens Traitors Honourable citizens Infiltrated citizens Syrians Salafists Patriots Agents Brave Cowards Warrior Mercenaries Martyrs Dead Loyal Unfaithful Patriots Terrorists Champions Germs  This division made by the hegemonic power in Syria—between a stigmatised, disgraced group and a group regarded with honor—culminated at the national level with the Syrian president telling the world in an official speech in July 2015 that ‘Syria is not for those who live in it or who holds the Syrian nationality but for those who defend it’.[36]   Normalisation of state violence   To normalise state violence, fear should control all people, excepted for those whom the Sovereign dictatorship provides security. Hence, a political activist was not arrested as an individual, but his wife, father, sisters, and even his friends were arrested, if an intelligence agent—representing sovereign power—decided so. In the case of Nizar Muradni, the political activist in the Communist Action League in Syria, his wife was arrested with him for her activity in the party and to pressure him, but his mother was also arrested to pressure him to confess in the investigation.   All these actions—arbitrary arrest, enforced disappearance, torture and ill-treatment, unfair trials, extrajudicial executions, security oversight, prevention of individual and intellectual freedoms, and the abolition of political life—all were legal acts by the power of exception, the power of emergency law. Or as Arendt says: ‘Terrorism become the legitimacy if the law becomes a law for the movement of a supra-human force’, and ‘citizens of the totalitarian state are only allowed to be the implementers of the law that accompanies it (the movement) or be victims of it’.[37]   Article 4 of the emergency law, which was declared operational between1963 and 2011 (when it was replaced by the anti-terrorism law) declares:   - Putting restrictions on the freedom of persons meeting, residence, moving and passing in certain places or times, and detain a suspect or those who are dangerous to security and public order in custody precaution, and authorize the investigation of persons and places at any time, and to assign any person to perform any of the tasks. - Monitor messages and calls of any kind, and monitor newspapers, pamphlets, files, printing, publications, broadcasts, and all means of expression, advertising and advertisement before publishing, seizing, confiscating, disabling, canceling their concessions, and closing their printing houses). Two simple texts with a total of no more than four lines were sufficient to include a clear breach of sixteen of the thirty articles of the Universal Declaration of Human Rights.[38]   This is an example of the legal field becoming an area for symbolic violence practiced by authority on one hand, and a tool for applying direct, physical violence on other hand. Where these laws and bodies are mostly exceptional, they are based on legal expressions and formulas that are not measurable. Only sovereign authority determines it interpretation.   Bourdieu suggest that ‘The symbolic imposition of power, which only succeeds because it is fully based in reality. Juridical ratification is the canonical form of all this social magic. It can function effectively only to the extent that the symbolic power of legitimation, or more accurately of naturalization ‘since what is natural need not even ask the question of its own legitimacy’.[39] The multiplicity of legal texts and bodies, and the open time range for nearly half a century, in addition to the inclusion of enforcement mechanisms against civilians and military personnel, all turned the exceptional into the normal. It is legal in the sense that it is based on a legal text and has a legal formula and legal effect—even if it violates the rules of the constitution itself or other legal articles of the country’s laws—as Schmitt sees it, because it comes from a sovereign authority.   Through this legal system, the political authority legitimises its violence. As Bourdieu writes: ‘The result of the separation between judgments based upon the law and naive intuitions of fairness is that the system of juridical norms seems (both to those who impose them and even to those upon whom they are imposed) totally independent of the power relations which such a system sustains and legitimizes’.[40] In other words, the system of legal rules legitimises the power relations between a hegemon, or authority, and the subjects of domination.   We can present a horrifying example of the legalisation of symbolic and physical violence in Syria by returning to the Military Field Court, which continued its work even after the abolition of the emergency law. A machine to implement terror and carry out various wide-spectrum human rights violations, we are talking about thousands of death sentences, enforced disappearances, and cases of torture. In its report, Sednaya Prison: Human Slaughterhouse , Amnesty International writes:   The first executions related to the Syrian crisis began in September 2011, according to former staff at Sednaya prison, for the first four months, it was usual for between seven and 20 people to be executed every 10-15 days. For the following 11 months, between 20 and 50 people were executed once a week, usually on Monday nights. For the subsequent six months, groups of between 20 and 50 people were executed once or twice a week, usually on Monday and/or Wednesday nights. Witness testimony from detainees suggests that the executions were conducted at a similar—or even higher—rate at least until December 2015. Assuming that the death rate remained the same as the preceding period, Amnesty International estimates that between 5,000 and 13,000 people were extra judicially executed at Saydnaya between September 2011 and December 2015. Amnesty International does not have evidence of executions after December 2015. However, detainees are still being transferred to Saydnaya, “trials” at the Military Field Court have continued, and there is no reason to believe that such extrajudicial executions have stopped. Since December 2015, therefore, thousands more detainees are likely to have been hanged. According to a former prison official and detainees who witnessed the executions, the number of people killed by hanging at Saydnaya increased during the weeks prior to and after the presidential amnesties for detainees issued after September 2011, which were on 10 January 2012, 23 October 2012, 16 April 2013, 30 October 2013 and 9 June 2014.[41]   In a report on the trial to which these victims were subject, Amnesty adds:   The whole process is done while detainees are handcuffed and blindfolded, although sometimes the gang is removed from their eyes the moment they appear before the judge. One trial takes between one and three minutes, and the judge generally relies on ‘confessions’ extracted under torture to determine the verdict that he will issue. The rulings of this court vary between life imprisonment and execution, and detainees who are tried before the Military Field Court  are not allowed to contact the lawyer, or know the details of the ruling issued against them.[42]   Despite the human rights violations documented in post-2011 Syria, this killing machine remains inaccessible, with no accurate numbers for the victims. Nonetheless, in July 2018, the Syrian regime announced, indirectly, that it had executed hundreds detained in Sednaya — human rights activists, political opponents, and intellectuals who had been involved in the revolt in 2011, before the popular movement turned into an armed movement—through what is called a family statement (the Family Civil Registration extract). Families can request these from civil registry departments in their area, in which the names and status of family members are mentioned. In the fields of the persons concerned, the families found that what was written was: Deceased.   After more than 60 years in power, and after the 2011 revolution that shook its authority, the Syrian government has exerted more violence and sought more laws trying to legalise and legitimise its violence. It was left with nothing except ‘terror in order to maintain hegemony’, as Arendt put it.[43] The Syrian regime decided that execution or brutal detention was the only way to exterminate the ‘enemies of the state’: its own people. As a result, in 2017, Bashar al-Assad declared in an official speech that the country lost a lot of its youth and a lot was destroyed, but they succeeded in creating a homogeneous society. Yara Bader Yara Bader is a Syrian journalist and a human rights activist. Throughout her career, Yara has worked to expose the conditions inside the detention centres in Syrian and the torture conducted by the Assad regime. In 2012, alongside 15 journalists, she was arrested by the intelligence forces in Syria for her work. Since her escape from Syria, Yara has continued to help victims get their voices heard through her work with the Syrian Centre for Media and Freedom of Expression. In 2015, she was a recipient of Human Rights Watch Alison Des Forges Award. [1] See Lars Vinx, ‘Carl Schmitt’ ( The Stanford Encyclopedia of Philosophy , 29 August 2019) < https://plato.stanford.edu/archives/fall2019/entries/schmitt/ > accessed 10 February 2024. [2] Hannah Arendt, On Violence (first published 1970, Ibrahim al-Ariss tr, second edn, Arabic Print-Dar Al Saqi 2015) 46. [3] ibid 50. [4] Max Weber, ‘Politics as a Vocation’ in HH Gerth and C Wright Mills (eds) From Max Weber: Essays in Sociology  (first published 1919, Oxford University Press 1946) 77­128 < http://fs2.american.edu/dfagel/www/Class%20Readings/Weber/PoliticsAsAVocation.pdf > accessed 10 February 2024. [5] See Vinx (n 1). [6] Pierre Bourdieu  and Richard Terdman, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 38 Hastings Law Journal 814. [7] ibid. [8] ibid. [9] See Vinx (n 1). [10] See ibid. [11] See ibid. [12] See ibid. [13] See ibid. [14] Bourdieu and Terdman (n 6). [15] ‘Text of the Syrian Emergency Law of 1962’ ( Al Jazeera , 11 August 2011) Available online in Arabic < https://www.aljazeera.net/encyclopedia/events/2011/8/11/%D9%86%D8%B5-%D9%82%D8%A7%D9%86%D9%88%D9%86-%D8%A7%D9%84%D8%B7%D9%88%D8%A7%D8%B1%D8%A6-%D8%A7%D9%84%D8%B3%D9%88%D8%B1%D9%8A-1962 > accessed 10 February 2024. [16] ibid. [17] See Vinx (n 1). [18] ‘Ending’ the work of military field courts responsible for ‘executing thousands’ ( DW , 3 September 2023) Available online in Arabic < https://www.dw.com/ar/%D8%B3%D9%88%D8%B1%D9%8A%D8%A7-%D8%A5%D9%86%D9%87%D8%A7%D8%A1-%D8%B9%D9%85%D9%84-%D9%85%D8%AD%D8%A7%D9%83%D9%85-%D8%A7%D9%84%D9%85%D9%8A%D8%AF%D8%A7%D9%86-%D8%A7%D9%84%D8%B9%D8%B3%D9%83%D8%B1%D9%8A%D8%A9-%D8%A7%D9%84%D9%85%D8%B3%D8%A4%D9%88%D9%84%D8%A9-%D8%B9%D9%86-%D8%A5%D8%B9%D8%AF%D8%A7%D9%85-%D8%A7%D9%84%D8%A2%D9%84%D8%A7%D9%81/a-66709226 > accessed 10 February 2024. [19] Weber (n 4). [20] Syrian Arab Republic's Constitution of 2012 (2021). Generated from the repository of the Comparative Constitutions Project and distributed on constituteproject.org < https://www.constituteproject.org/constitution/Syria_2012.pdf?lang=en > accessed 10 February 2024. [21] Bourdieu and Terdman (n 6).  [22] Hannah Arendt, The Origins of Totalitarianism  (first published 1951, Antoine Abu Zaid tr, second edn, Arabic Print-Dar Al Saqi 2016) 250. [23] ‘A new decree protects security personnel accused of torture from prosecution’ ( Syrian Human Rights Committee , 12 October 2008). Available online in Arabic < https://www.shrc.org/?p=9298 > accessed 10 February 2024. [24] Arendt (n 22) 192. [25] Bourdieu and Terdman (n 6). [26] Haitham Al-Maleh, ‘The nature of the military field courts and the legality of the rulings issued by it’ ( Committees for the Defense of Democracy Freedoms and Human Rights in Syria ). Available online in Arabic < http://cdf-sy.org/paper/al-maleh.htm > accessed 10 February 2024. [27] Arendt (n 22) 246. [28] ibid 252. [29] ‘Syrian Penal Code 1949’ (25 January 2019). Available online in Arabic < https://learningpartnership.org/sites/default/files/resources/pdfs/Syria-Penal-Cade-1949-Arabic.pdf > accessed 10 February 2024. [30] ‘Far From Justice – Syria's Supreme State Security Court’ ( Human Rights Watch, 24 February 2009)   < https://www.hrw.org/report/2009/02/24/far-justice/syrias-supreme-state-security-court > accessed 10 February 2024. [31] ibid. [32] Legislative Decree 108 of 2011. Media Law. Available online in Arabic < http://www.parliament.gov.sy/arabic/index.php?node=5578&cat=43 > accessed 10 February 2024. [33] Bourdieu and Terdman (n 6).  [34] See Vinx (n 1). [35] ‘تقرير قناة الدنيا عن مجزرة داريا 25/8/2012-من تقديم ميشلين عازر’ (YouTube, 9 September 2015) < https://www.youtube.com/watch?v=jRjbLW5uBXk&has_verified=1&ab_channel=HRMonitor > accessed 10 February 2024; ‘2011- تقرير قناة الدنيا حول تلبيسه في حمص 5-10-‘ Al-Dunya TV (YouTube, 6 October 2012) < https://www.youtube.com/watch?v=AFdvwvWvWyY&ab_channel=TRUE0TRUE > accessed 10 February 2024. [36] Krishan Muhammad, ‘The scandalous sentence in Al-Assad’s speech’ Al-Quds Al-Arabi  (28 July 2015) < https://www.alquds.co.uk/%EF%BB%BF%D8%A7%D9%84%D8%AC%D9%85%D9%84%D8%A9-%D8%A7%D9%84%D9%81%D8%B6%D9%8A%D8%AD%D8%A9-%D9%81%D9%8A-%D8%AE%D8%B7%D8%A7%D8%A8-%D8%A7%D9%84%D8%A3%D8%B3%D8%AF/ > accessed 10 February 2024. [37] Arendt (n 22) 252. [38] Al Jazeera (n 15). [39] Bourdieu and Terdman (n 6).  [40] ibid. [41] ‘Syria: Human slaughterhouse: Mass hangings and extermination at Saydnaya Prison, Syria’ ( Amnesty Internationa l, 7 February 2017)  < https://www.amnesty.org/en/documents/mde24/5415/2017/en/ > accessed 10 February 2024. [42] ibid. [43] Arendt (n 2) 49.

This article discusses international agreements such as the Declaration on the Elimination of Violence Against Women (DEVAW) and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), while examining efforts undertaken in certain precedents to include the specific rights of women within the international framework. The article explores the issues of identifying and punishing sexual violence when it comes to international obligations and state responsibility. It also discusses sexual violence as a human rights issue, the public-private divide in international law that affects women’s agency, and the understanding of their citizenship.   Introduction The critique of international human rights law in the past decade has centred around its ‘gender myopia’ and the ‘operational ghettoization’ of the authorities who regulate such rights.[1] The critiques take the view that human rights law doesn’t see oppressive practices against women (such as domestic violence) as human rights violations because it is overly-focused on the public-private divide, ie the subversion of narratives of domestic violence as they are considered to fall in the private familial domain of society. Violence against women as a human rights issue was only formally recognised in 1993 by the international regime at the Vienna World Conference.[2] Subsequently, this recognition was instilled in DEVAW[3] and the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women.[4]  Although these initiatives show progress towards realising women’s rights as human rights under international law, more recent initiatives focus on better implementation of these rights and strengthening the mechanisms that can aid women in specific instances, as can been seen in the Beijing Declaration, which mentions actions and initiatives to overcome obstacles and to achieve the full and accelerated implementation of the Beijing Platform for Action.[5] Some developments in the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), such as the reporting procedure[6] under the Women’s Convention that aims to increase the effectiveness of the Convention by monitoring its implementation, can be revamped by CEDAW. However, in my opinion, the option of opting out of the simplified procedure has the potential to maintain the status quo, instead of speedy redressal as aimed for by the organisation. There have been positive outcomes from developments such as instilling the individual complaints mechanism, however, the UDHR proposition that ‘all human beings are born free and equal in dignity and rights’[7] is still not properly realised. Several international treaties and declarations have regarded all humans to be equal, such as the UN Charter[8] and the International Covenant on Civil and Political Rights.[9] However, Professor Steven Poe’s analysis demonstrates how women in almost half of the countries are in political situations where they’re unequal compared to men—either explicitly under law, or because of a lack of resources leading to a lack of representation in government.[10] This article explores the efforts made to incorporate women’s human rights as mainstream rights while pointing out laxities in the system created by the public-private divide and stereotyping of women’s citizenship.   Violence Against Women as Human Rights Abuse In writing about how the governance of women under international law is different than that of men, MacKinnon states that ‘Human rights principles are not based on the experience of women; it is not that women’s human rights have not been violated. When women are violated like men who but for sex are like them—when women’s arms and legs bleed when severed, when women are shot in pits and gassed in vans, when women’s bodies are salted away at the bottom of abandoned mines or dropped from planes into the ocean—this is not recorded as the history of atrocities to women’.[11]  MacKinnon’s observations resonate with certain precedents and treaties. Rape, forced prostitution, pregnancy, and sterilisation via coercion, among others, are considered crimes against humanity under Article 7, and war crimes under Article 8 of the Rome Statute of the International Criminal Court. Also, international criminal tribunals have recognised the vulnerability of women during armed conflict.[12] There have also been attempts to understand how sexual violence goes beyond physical harm. In Prosecutor v. Jean-Paul Akayesu , the International Criminal Tribunal for Rwanda highlighted that rape meant not only a sexual invasion but the existence of coercive circumstances that might not be proven due to the absence of physical or visible harm. Hence, the judgment mentions that: ‘The Tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal’. Sexual violence falls within the scope of ‘other inhumane acts’, set forth in Article 3(i) of the Tribunal's Statute, ‘outrages upon personal dignity’, set forth in Article 4(e) of the Statute, and ‘serious bodily or mental harm’, set forth in Article 2(2)(b) of the Statute’.[13] Even ‘threats, intimidation, extortion and other forms of duress’ would fall within the ambit of coercion, and sexual violence could be considered genocide if the intent behind it is the eradication of a group.[14] Prosecutor v. Dusko Tadić [15] held that sexual violence could be considered ‘a widespread and systematic campaign of terror against a civilian population, even if rape itself was not widespread or systematic but was one of many types of crimes committed on a widespread or systematic basis’.[16] However, there also needs to be an emphasis on issues unaddressed by national criminal systems, such as protection against arbitrary detention, the realisation of economic rights, protection against racism, and ensuring sexual and reproductive health rights.[17] Even though organisations such as Amnesty International have worked on narratives around sexual violence, they have approached it through the lens of ‘torture’, bringing the focus to harm done to the physical body.[18] This narrative around sexual violence being referred as torture was furthered due to the reporting style of the 1980s, where claims of sexual violence were decontextualised for political reasons, which further enhanced the pain inflicted on survivors of sexual violence.[19] While understanding that each individual needs to be treated as equal, the context surrounding their gender and sexuality cannot be avoided as it becomes important for victims of sexual violence to get exclusive remedies. The subordination of the female subject detaches them from their identity as a citizen who deserves mental health services amongst others, not just as a remedy but as instruments of transformation. This can only occur when the state views these subjects as state actors rather than vessels or ‘rape victims in need of services.[20] This transformation must incorporate aspects of sexuality as well, where outdated ideas that equate sexual health with the absence of disease are eradicated.[21]    The Private-Public Divide in International Law The linkage of women with nation and race,[22] and the inscription of sexuality within the reproductive domain, has deemed women’s bodies powerless and untrustworthy, and pathologised sexually active non-reproductive bodies.[23] Despite measures such as DEVAW, Professor Petchesky notes that work still needs to be done to shift the economic and structural paradigm to make these rights real in their essence globally.[24] This process of making rights ‘real’ is not just about legislative action, but must include provisions for recording and recognising all violations, realising positive obligations for providing resources for effective representation, and upholding state responsibility for meeting such obligations. DEVAW presents gender-based violence as discrimination against women,[25] and this conception is also seen in the Inter-American Convention.[26] Even though DEVAW states that women are entitled to all human rights protection, equal enjoyment, and freedom from inhuman treatment,[27] it does not establish the link between violence and these rights,[28] and fails to lay down violence against women as a human rights violation. However, DEVAW does address the public-private divide by disallowing state parties from invoking any ‘custom, tradition or religious consideration to avoid their obligations with respect to [the] elimination [of violence against women]’.[29] This is significant because the existence of the public-private distinction has historically given states the liberty to socio-economically and culturally oppress women.[30] However, unlike the Women’s Convention, DEVAW makes states undertake due diligence to punish acts of violence against women, and these punishments only need to be in accordance with national law.[31] This ambiguity also exists in the context of effective remedies under state obligations for victims of gender-based violence.[32] Such loopholes save these nations from serious international scrutiny of domestic laws.[33]  Bodies such as CEDAW[34] and the Human Rights Council (HRC), via general comment no. 31, have spelt out that ‘States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights…’.[35] However, women subjected to sexual violence are still seen as suffering individuals in need of protection by law, rather than citizens worthy of being granted equal participation and resources.[36] These international organisations must understand that gender-based violence needs to be prevented through ex ante  laws as well, by respecting their agency and not restricting them to the private domain of motherhood and sexed bodies that cannot possess socio-economic agency.   Inclusion of Specific Rights The manner in which sexual harm has been reported by human rights groups has marginalised interrelated rights such as health-based protections, a safe environment for labour, and political equality for women. While there is a strong need to relay the stories of sexual harm, [37]  I believe that idealising the aspect of chastity through stereotypes and reinforcement of private boundaries furthers violence against women. Initiatives such as changes in inheritance and land-reform laws in Rwanda have helped the social fabric move beyond viewing sexual violence as something that happens to all women. These reforms helped contextualise causes and consequences, and tried to instil remedies. The Vienna World Conference aimed to inculcate women’s issues within the framework of human rights and bring these rights into the mainstream by emphasising the increasing cooperation between CEDAW and the Commission on the Status of Women.[38]  Similarly, cases such as Velasquez-Rodriguez v. Honduras [39] have addressed the state’s responsibility to ensure certain rights, such as the right against the systematic practice of disappearances done by military personnel or public officials.[40] The state was held responsible even when the disappearances occurred due to non-state actors.[41] The Court noted that ‘An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to the international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention’.[42]  The Court emphasised the critical nature of how the state had furthered the disappearance of the individual and not played any role by ignoring preventive measures to avoid and punish the perpetrators.[43] Hence, the judgment made the state internationally responsible if it failed to conduct its due diligence and curb systemic abuse. It is the state’s duty to protect the rights under the Convention—ensuring both the negative and positive obligations not to violate women’s rights, and prevent, investigate, and provide a remedy for violations.[44] Further, duty to prevent includes all means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal.[45] Therefore, affirmative action needs to be undertaken to change the sociocultural patterns and remove stereotypes. Conventions such as CEDAW focus on rights with respect to marriage, family planning and health care, encouraging protective legislation and inherently dealing with only heterosexual individuals. This reinforces the position of women as wives and mothers and ignores issues such as pornography, abortion, domestic violence, and the violation of rights of women that are not related to their gender.[46] The European Convention on Human Rights has created a negative obligation to not violate individual human rights and has included the state’s responsibility to ensure that human rights are enjoyed.[47] For example, in Airey v. Ireland ,[48] the European Court of Human Rights stated that failure to provide financial help to a woman who required judicial separation from an abusive partner would violate her right to respect for family life.[49] This is because the negative obligation of non-interference in family life is not sufficient, in the Court’s opinion, and the positive obligations need to be upheld to preserve private family life.[50] Hence, even though the recognition of women’s specific rights is not widespread, there have been instances where the need for them has been highlighted by recognising the importance of ex ante  laws and positive obligations. Similarly, in X and Y v. The Netherlands ,[51] the Court imposed positive obligations on states even when it concerns matters between individuals.[52] This case concerned a mentally handicapped minor who was sexually abused. Even though the case referred this instance under the broad ambit of the right to respect for private life, as per Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and the right to respect for their private life guaranteed by Article 8, it recognised the lack of criminal sanctions punishing such instances.[53] The absence of an explicit right against such abuse and the availability of only civil sanctions does not deter such infringement and does not ensure effective protection of rights.[54]  Therefore, despite attempts at enshrining sufficient sanctions for violations, the lack of clear indications of such abuse in international human rights treaties is still a deterrent to progress.   Conclusion One would have to go further to see a female victim of sexual violence as a   reconstituted citizen/subjective holder of rights, as compared to the distance that one would need to travel to see a reconstituted male torture victim. This distance is a metaphor for barriers that exist, not just in law but also in society. These barriers include stereotypes around gender, sexuality, ethnicity and age. Even for men, the distance travelled will be far less if the victim is not a Roma, homosexual, sex worker, felon, or the ‘right ethnicity’. However, for females, their citizenship is covered with socio-political and cultural notions around women’s livelihood, creating a strict public-private divide. Gayle Rubin argues that the disproportionate power that works on the female object in the sexual domain operates in such a way that women’s incomplete claim on citizenship, which is already weak due to racism, neo-colonialism and state conflict, is further weakened because any  sexual harm is considered to be total harm.[55] This creates a lengthy distance between sexual slavery and citizenship. The state’s responsibility to prevent, investigate and punish is important, and failure to uphold positive obligations constitute a breach of state obligations.[56] The UN Centre For Social Development and Humanitarian Affairs, in their study on Violence Against Women in the Family, highlighted some of the responses to intimate violence—such as therapy, criminal sanctions, and inappropriate police response—where intimate violence is criminalised.[57] The police agencies’ view that enforcement of violence laws will affect family values,[58] and the reduction of state funding for women refuge centres, can be challenged at an international level as a failure of the state in enforcing ‘all appropriate measures’ to eradicate violence against women and adhere to their positive obligations. The extended locus standi  proposed by the Women’s Convention could come in useful here; however, documenting and collecting evidence of systemic failure could be difficult for individual lawyers. Finally, implementation of women’s human rights should not be restricted to the domain of CEDAW; this expansion will only be possible when there is diversity in the composition of treaty bodies and human rights organisations, alongside reporting of systemic issues that affect women’s agency apart from sexual violence. Varda Saxena Varda Saxena is a final year law student pursuing the five-year BA LLB (Hons) programme from Jindal Global Law School, India. She is immensely interested in commercial law and has published articles on various academic platforms such as the International Company and Commercial Law Review Journal . She has also served as an Editor-in-Chief at various law-based academic blogs and loves to read about gender and decolonisation studies. [1] Elissavet Stamatopoulou, ‘Women’s Rights and the United Nations’   in Julie Peters and Andrea Wolper (eds), Women’s Rights, Human Rights: International Feminist Perspectives  36 (Routledge 1995) 36. [2] Vienna Declaration and Programme of Action, UN GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., part I, UN Doc A/CONF.157/24 (1993), reprinted in 32 I.L.M. 1661 (1993) [hereinafter Vienna Declaration]. [3] Declaration on the Elimination of Violence Against Women, adopted 23 Feb. 1994, G.A. Res. 48/104, UN GAOR, 48th Sess., Agenda Item 111, UN Doc A/Res/48/104 (1994), reprinted in 33 I.L.M. 1050 [hereinafter DEVAW]. [4] Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, ‘Convention of Belem do Par 6’, adopted 9 June 1994, OAS/Ser.L.V/ 11.92/doc.31 rev.3 (1994), reprinted in 33 I.L.M. 1534 (1994) [hereinafter Inter-American Convention]. [5] Fourth World Conference on Women: Action for Equality, Development, and Peace, Beijing Declaration and Platform for Action, UN GAOR, UN Doc A/CONF.177/20 (1995), reprinted in Report Of The Fourth World Conference On Women (1995) (recommended to the UN General Assembly by the Committee on the Status of Women on 7 October 1995) [hereinafter Beijing Declaration]. [6] Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 December 1979, G.A. Res. 34/180, UN GAOR 34th Sess., Supp. No. 46, UN Doc A/34/36 (1980) (entered into force 3 September 1981), reprinted in 19 I.L.M. 33 (1980). [7] ibid art 1. For a recent analysis, however, of the extent to which women’s human rights remain unrealized, see Stephen C Poe et al, ‘Global Patterns in the Achievement of Women’s Human Rights to Equality’ (1997) 19 Human Rights Quarterly. [8] UN CHARTER, 59 Stat. 1031, T.S. 993, art 55(c). [9] International Covenant on Civil and Political Rights, adopted 16 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976), G.A. Res. 2200 (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc A/6316 (1966). [10] Poe (n 7) 824. [11] Catherine MacKinnon, Are Women Human and Other International Dialogues  (Harvard University Press 2006). MacKinnon notes that the language of the law is constructed in a way that ‘a man’ defines what ‘an individual’ is and so when it is stated that someone’s human rights are recognised to be violated, he is probably a man. Only men are permitted to be violated as individuals. Her analysis explains how a woman is ‘not yet a name for a way of being human’, therefore, their history of violations and atrocities remains unrecorded. [12]  Prosecutor v. Jean-Paul Akayesu  [1998] Case No. ICTR-96-4-T, ICTR, Trial Chamber; Prosecutor v. Dragoljub Kunarac, Radomor Kovac, and Zoran Vukovic , [2002] Case Nos. IT-96-23 & IT-96-23/1-A, ICTY, Appeals Chamber. [13]  Akayesu  (n 12) [688]. [14] ibid   [731-734]. [15]  Prosecutor v. Dusko Tadić  [1997] Case No. IT-94-1), ICTY, Trial Chamber II. [16] ibid   [646]. [17] LP Freedman et al, Millennium Development Project Task Force 4 Background Paper on Child Health and Maternal Health  (2003). [18] RP Petchesky, ‘From Population Control to Reproductive Rights: Feminist Fault Lines’ (1995) 6 Reproductive Health Matters 152-161. [19] T Keenan, ‘Publicity and Indifference: Media, Surveillance, Humanitarian Intervention’ [2001] Human Rights Project. [20] ibid. [21] S. Correa and R. Petchesky, ‘Reproductive and Sexual Rights: A Feminist Perspective’ in G Sen, A Germaine, and L C. Chen (eds), Population Policies Reconsidered: Heath, Empowerment and Rights  (Harvard University Press 1994). [22] LP Freedman, ‘Censorship and Manipulation of Family Planning Information: An Issue of Human Rights and Women’s Health’ in S Coliver (ed), Article 19, The Right to Know: Human Rights and Access to Reproductive Health Information  (University of Pennsylvania Press 1995). [23] ibid. [24] Petchesky (n 18). [25] DEVAW (n 3). [26] Hilary Charlesworth and Christine Chinkin, ‘Violence Against Women: A Global Issue’ in Julie Stubbs (ed), Women, Male Violence and the Law  (Institute of Criminology, Sydney 1994) 24. [27] DEVAW (n 3) art. 3. [28] ibid. [29] ibid art. 4. [30] Rhonda Copelon, ‘Intimate Terror: Understanding Domestic Violence as Torture’ in Rebecca J Cook, Human Rights of Women  (University of Pennsylvania Press) 116. [31] DEVAW (n 3) art. 4 (c). [32] Charlesworth and Chinkin (n 26) 259. [33] Donna J Sullivan, ‘Women’s Human Rights and the 1993 World Conference on Human Rights’ (1994) 88 AM. J. INT’L L. 152. [34] General recommendation No. 19 (1992). [35] General recommendation No. 31. [36] Alice M Miller, ‘Sexuality, Violence against Women, and Human Rights: Women Make Demands and Ladies Get Protection’ (2014) 7(2) Health and Human Rights 16-47. [37] Amnesty International, Women in the Front Line  (Amnesty International 1991). See also Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath  (Human Rights Watch 1996). [38] Vienna Declaration, part II, para 37. [39]  Velasquez Rodriguez , Case 7920, Ser. C, No. 4, Inter-Am. Ct. H.R. 35, O.A.S. Doc OEA/Ser.L/V/111.19, doc. 13 (1988). [40] ibid. [41] ibid. [42] ibid 172. [43] ibid 173. [44] ICCPR (n 9) art 2. [45] Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, Art. 2, 6, 14. [46] Sarah C Zearfoss, ‘The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable or Reactionary’ (1991) 12 MICH. J. INT’L L. 903, 916. [47] Paul Mahoney and Fredrik Sundberg, ‘The European Convention on Human Rights: A Case Study of the International Law Response to Violence’ in Kathleen E Mahoney and Paul Mahoney (eds), Human Rights in the 21st Century: A Global Challenge (Brill Publishing 1992) 361. [48]  Airey v. Ireland [1979] 32 Eur. Ct. H.R. (ser. A). [49] ibid. [50] ibid [32]. [51]  Case of X & Y v. The Netherlands  [1985] 91 Eur. Ct. H.R. [52] ibid [23]. [53] ibid. [54] ibid. [55] Gayle Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Polities of Sexuality’ in CS Vance (ed), Pleasure and Danger: Exploring Female Sexuality  (Routledge 1984) 267-319. [56] ‘Preliminary Report Submitted by the Special Rapporteur on Violence Against Women, its Causes and Consequences’ Submitted in Accordance with Commission on Human Rights Resolution 1994/45, UN ESCOR, Comm’n on Hum. Rts., 50th Sess., Agenda Item 11 (a), UN Doc E/CN.4/1995/42 (1995). [57] UN Centre For Social Development and Humanitarian Affairs, Violence Against Women in the Family, UN Doc ST/CSDHA/2, UN Sales No. E.89.1V.5 (1989) 51, 56. [58] ibid 71.