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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.

Francisco B González Centeno is an officer for the International Criminal Court (ICC) from Buenos Aries, Argentina. He holds an MSc in Sociology from the London School of Economics and Political Science (LSE). Francisco has been a central pillar in protecting the human right of access to information by expanding access to justice in the Central African Republic. He has been involved with projects with UNECSO to protect cultural heritage sites from collateral damage in areas of conflict.   CJLPA : Welcome Francisco, and many thanks for interviewing with The Cambridge Journal of Law, Politics, and Art . We wanted to begin by asking you what prompted you to delve into a career in international justice?   Francisco B González Centeno : My career in international justice did not start as a lawyer, as most people might assume, but as a political scientist and sociologist. In fact, law was not my favourite subject during my political science and international relations studies. However, I got interested in law as a social and political construct. I was eager to study the mechanisms on how the law shapes and impacts societies, and how it also reflects the agency of humans in terms of social and power relations. Law is the crystallisation of human relations and therefore has an impact in our daily interactions, which are regulated by it. During my sociology research at The London School of Economics and Political Science (LSE), I was particularly interested in how international criminal justice and transitional justice procedures impact reconciliation and how they address collective memory as a story-telling mechanism that could help build more peaceful contexts.   CJLPA : After completing your university degree in Argentina, you went on to do your masters in LSE. How did your time in LSE shape your career trajectory?   FGC : LSE offered me a unique and, most importantly, critical approach to the study of the social sciences. The LSE Department of Sociology has played a key role in establishing and developing the discipline and debate around global policies since 1904. I am proud and honoured to have been part of the Department and to have had the opportunity to receive the academic advice and guidance of top-quality thinkers, many of them leaders in the evolution of the social sciences in new intellectual areas and the study of the social problems and ethical dilemmas facing cosmopolitan but also fractured and complex societies.   LSE marked my career path because of the emphasis the university had on connecting academia and the sciences to the real world and adapting disciplines to different and diverse realms and global challenges. I have applied my Sociology expertise, honed at LSE, to the areas of justice, the rule of law and law enforcement in the United Nations (UN) system.   At the LSE, there is this triangle about changing the world, shaping the world, and academia. The School’s current campaign ‘#CuriousMindsAreShapingTheWorld’ reflects this spirit. I am very proud to be an active member of the LSE Alumni community and to keep contributing to the School from any front. CJLPA : In your early career, you worked as an Under-Secretary at the Chambers of the Chief Justice of Argentina, and as an external relations specialist for UNESCO in the fight against illicit trafficking in cultural goods, at the Culture Sector of the Organisation. Having worked closely with the Chief Justice of Argentina since 2008, could you please give us any insight into cases when the Supreme Court of Argentina had defended or protected the human rights of victims?   FGC : In 2005, the Supreme Court of Argentina declared the ‘Full Stop’ and ‘Due Obedience’ laws unconstitutional. These laws had previously halted the prosecution of military and police personnel for human rights violations during the last dictatorship (1976-1983). This was a crucial moment that paved the way for renewed prosecutions of those allegedly involved in human rights abuses. The decisions were emblematic of a larger shift in Argentine society towards prioritising accountability and justice. The 2005 nullification of the amnesty laws by the Supreme Court of Argentina was a turning point in the country’s transitional justice process. This decision played a fundamental role in addressing impunity for the grave human rights abuses committed during the last military dictatorship.   The primary grounds on which the amnesty laws were declared unconstitutional were as follows:   Incompatibility with International Treaties: Argentina is a signatory to various international human rights treaties, such as the American Convention on Human Rights and the International Covenant on Civil and Political Rights. The amnesty laws were seen as incompatible with Argentina’s obligations under these treaties to investigate and punish gross human rights violations. Crimes Against Humanity: The Supreme Court recognised the acts committed during the dictatorship as crimes against humanity. Such crimes, due to their severity and impact on the international community, are not subject to amnesties, pardons, or statutes of limitations. Right to Justice: The Court argued that the amnesty laws denied victims their right to justice and truth. Every victim has the right to know the truth about violations and to an effective remedy, which the amnesty laws hindered. Judicial Independence: The laws were also criticised for infringing upon the principle of the independence of the judiciary. By preventing the judiciary from investigating and punishing certain crimes, the laws were essentially intervening in the natural functioning of the justice system. Each of the Supreme Court Justices back then brought their perspectives and interpretations to the bench. Their collective decision to overturn the amnesty laws reflected both a domestic shift in public sentiment and Argentina’s broader obligations under international law.   This Supreme Court decision was important in terms of the recognition of victims and Human Rights. Many families of the disappeared and other victims had been waiting for decades for justice. The nullification meant that their pain and suffering were acknowledged and that those responsible could be held accountable. By overturning the amnesty laws, Argentina officially recognised the magnitude and severity of the crimes committed during the dictatorship. This helped ensure that these atrocities were not forgotten or minimised in historical memory. The decision underscored the state’s obligation to prosecute and punish gross human rights violations, signifying a commitment to the rule of law and to human rights principles.   The decision was exemplary for the international community in terms of transitional justice. Argentina’s decision inspired and provided a legal precedent for other countries grappling with similar challenges. Countries facing transitional justice questions often look to examples from other nations, and Argentina’s nullification was seen as a bold move against impunity. The decision reignited the debate on the legitimacy and morality of amnesty laws, particularly when it concerns crimes against humanity. The nullification showed that, in some cases, the quest for national reconciliation should not come at the cost of justice. The nullification aligned Argentina with international human rights standards, particularly the notion that grave human rights abuses should not be subject to statutes of limitations or amnesties. This bolstered international human rights norms and conventions.   After the 2005 nullification, hundreds of cases were reopened or initiated after the nullification; by the late 2010s, over 800 individuals had been convicted of crimes related to the dictatorship, and approximately 1,000 more were facing charges, which marked a significant acceleration in the prosecution of dictatorship-era crimes.   In summary, the 2005 nullification of the amnesty laws by the Supreme Court of Argentina was not just a domestic triumph for justice and human rights but also had broader implications for the international community’s ongoing struggle against impunity and the quest for transitional justice. The decision served as a powerful testament to the resilience of victims’ families and human rights advocates in Argentina and worldwide. CJLPA : What are the biggest challenges you have faced when interacting with governing bodies in foreign jurisdictions in your early career? Working in such close proximity to the Chief Justice of Argentina, what skills did you develop that have benefited you in your current work with the ICC?   FGC : There were challenges but most importantly career opportunities. At the Chambers of the Chief Justice of Argentina, I was special assistant to The Honourable Chief Justice Ricardo Lorenzetti, from whom I acquired a wealth of experience and to whom I am extremely thankful for his mentoring as an excellent manager and supervisor. I worked especially on the institutional agenda of the Presidency of the Court, including and especially with external actors, such as different Judiciaries of the world (Supreme Courts and Constitutional Courts) and other key stakeholders, International Tribunals and UN Agencies and Entities. I helped organise and coordinated with different sections of the Court; several international summits; conferences and meetings; State and Official Visits of high level senior officials (including Heads of States and International Organisations) to the seat of the Court; official trips of the Chief Justice and the Justices to different countries; and provided assistance and coordination for the signing and the execution of numerous international partnership agreements between the Supreme Court of Argentina and leading partners.   This experience has been capital for me in terms of the external relations of justice, with functions that underlined the independence of the judiciary and the division of powers in a republic like Argentina. I believe it gave me the right tools to see and to show stakeholders the importance of justice and how justice can make a change and impact on people’s lives, everywhere.   CJLPA : In regard to your work with UNESCO, could you provide us with some insight on the importance of the legal protection of heritage and culture for the promotion of peace and security?   FGC :   The legal protection of heritage and culture is not just a matter of preservation; it is deeply intertwined with promoting peace and security, both within nations and internationally. UNESCO, with its mandate to foster global collaboration in the fields of education, science, and culture, underscores the crucial role of legally protecting heritage in peacebuilding efforts. Here’s how these are connected:   1. Protecting cultural identity: Cultural heritage represents the shared histories, traditions, and values of communities. Protecting it legally ensures that these identities are respected, reducing potential sources of conflict. Recognising and protecting diverse cultural heritages can stimulate intercultural dialogue, fostering understanding and mutual respect among different communities.   2. Preventing illicit trafficking: Illicit trafficking of cultural property can be a significant source of revenue for criminal and terrorist organisations. Legal protection mechanisms, like those in the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, help stem this flow. Preventing illicit trade reduces the incentive for illegal excavations and theft, indirectly safeguarding cultural heritage.   3. Protection in times of conflict: The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its protocols highlight the importance of preserving cultural heritage during wars and armed conflicts. Such protection ensures that the cultural and historical foundations of societies are not lost amidst conflict. After conflicts, the restoration and repatriation of cultural property, made possible through legal frameworks, can be a significant step in healing and rebuilding societal bonds.   4. Fostering resilience and recovery: Culturally significant sites or practices often play central roles in community life. Their legal protection ensures that communities maintain these pillars of resilience during times of change or strife. In the aftermath of conflicts or disasters, cultural heritage can serve as a focal point for community rebuilding and recovery, both materially and psychologically.   5. Strengthening international cooperation: International legal instruments, like those crafted by UNESCO, create a framework for nations to cooperate in protecting global cultural heritage, fostering diplomatic ties, and mutual understanding. Legal frameworks facilitate the return of cultural property to its country or community of origin, mending international relations that might have been strained due to disputes over cultural heritage.   6. Preserving memory for conflict prevention: Some cultural heritage sites serve as reminders of past conflicts, atrocities, or injustices. Their protection ensures that future generations learn from history, reducing the risk of repeating past mistakes. Protected heritage sites and practices can be focal points for educating the public about the consequences of conflict, promoting a culture of peace.   In essence, the legal protection of heritage and culture, as advocated and facilitated by UNESCO, serves as both a shield against potential sources of conflict and a tool for healing, understanding, and cooperation. By legally safeguarding the diverse tapestry of global cultures, nations build bridges of dialogue and understanding that are foundational for lasting peace and security.   CJLPA : Could you tell us about a project that you consulted on which is particularly meaningful or interesting to you?   FGC : My favourite project whilst working in UNESCO was the launch of the #Unite4Heritage campaign in South America.   The #Unite4Heritage campaign was launched by UNESCO in 2015 as a response to the unprecedented attacks on cultural heritage, particularly in the Middle East. Extremist groups were deliberately targeting cultural landmarks, artefacts, and monuments, either for ideological reasons or to fund their activities through the illicit trade of looted items. The campaign was certainly very relevant in terms of law enforcement for many reasons.   Regarding illicit trafficking of cultural property, cultural artefacts often end up in the black market and are sold to finance terrorist activities. Tackling this requires international law enforcement cooperation. Many cultural heritage sites are in conflict zones, making them vulnerable. Law enforcement and peacekeeping forces play an essential role in physically protecting these sites from deliberate destruction or collateral damage. The campaign underscored the need for strong legal frameworks at both the national and international levels to protect cultural heritage. Such frameworks guide law enforcement agencies in their efforts to prevent illicit activities related to cultural properties.   While the impetus for the campaign emerged primarily from events in the Middle East, its principles are globally relevant, including in South America, and this is what we focused on for its launch in the subregion.   South America is home to a diverse and rich cultural heritage, from ancient Incan and Mayan cities to colonial architecture and indigenous traditions. These are not just important for South Americans as they also hold value for all of humanity. The region has seen its share of threats to cultural heritage, including illegal excavations, looting of archaeological sites, environmental threats, and urbanisation pressures. The campaign #Unite4Heritage helped in raising awareness about these threats and mobilising action to counter them. South America, like other regions, is not immune to the illicit trafficking of cultural property. Strengthening legal and enforcement measures to combat this can benefit from the momentum and resources provided by global campaigns like #Unite4Heritage. South America is marked by its cultural diversity, with indigenous communities holding rich traditions and knowledge systems. Protecting and celebrating this diversity aligned with the principles of the #Unite4Heritage campaign. Engaging local communities in the protection of their cultural heritage was also crucial. The campaign’s principles helped in fostering a sense of ownership and pride among South American communities, ensuring that heritage protection became a grassroots effort.   The launch of the #Unite4Heritage campaign in South America was took place during the opening of the art intervention #PalmyraAtVillaOcampo, at the only UNESCO owned property in the world, Villa Ocampo, in Buenos Aires, Argentina. Like the Bamiyan Buddhas before, the city of Palmyra in Syria had become a symbol for the vulnerability of cultural heritage, a memorial for cultural loss and a warning for us and future generations that cultural heritage should not be taken for granted and could be lost at any time. This led to Syria and especially Palmyra being chosen as representative examples to illustrate the campaign. The whole property in Buenos Aires was artistically explored by music and plastic artists who brought Palmyra into the property. The objective was to raise awareness, amongst government authorities, civil society, and especially young people, of the importance of heritage protection and cultural diversity and to stop extremist attacks on the cultural heritage of humanity. These concrete actions for Latin America aimed to promote the role of culture as a factor of tolerance and dialogue between peoples and to counter violent extremism in all its manifestations.   In essence, whilst the immediate concerns that led to the creation of the #Unite4Heritage campaign were centred in the Middle East, its objectives and principles had a universal relevance. South America, with its intricate tapestry of cultural histories and present-day challenges, stood to benefit immensely from the awareness, resources, and collaborations fostered by such a campaign, and it was an honour for me to work on the design of local initiatives framed into that campaign.   CJLPA : Your work in the Central African Republic is directed at providing access to justice through access to information. Could you please highlight, through your observations, the challenges that are faced by affected communities in accessing necessary means of justice and why it is important to provide information to the general public of the works of the Court?   (Figures 1-4 show a pop-up installation in Bangui, CAR, displaying images from the ICC’s courtroom in The Hague, more information at https://www.icc-cpi.int/about/outreach/activities/activity/pop-installation-bangui-attracts-passers . Figures 5-8 show billboards announcing the trial opening in the Mahamat Said Abdel Kani case visible in Bossangoa, Berbérati, Mbaïki and Bria, more information at https://www.icc-cpi.int/about/outreach/activities/activity/billboards-way-announce-start-trial .) FGC : The Central African Republic (CAR) has faced complex political, social, and humanitarian challenges for many years, including military coups, political instability, and prolonged armed conflicts. These complexities have unfortunately had a significant impact on access to justice for its population, making it a major challenge.   Many citizens, due to the lack of means to access information, might be unaware of their legal rights or the processes involved in seeking justice. This is why I regard my work at the International Criminal Court (ICC) as relevant. There is a need for greater public information and outreach tools which can help justice, especially international criminal justice, be more accessible. Access to information is a human right and a tool to access justice.   When we speak about affected communities in the ICC Cases in CAR, we include both victims’ communities and the suspects’ communities. Both have the right to have access to information and therefore justice; bearing in mind the important concepts and principles of a fair trial and the presumption of innocence, but never forgetting the relevance of the victims’ voices during the proceedings.   CJLPA : In what ways does the ICC work towards making justice more accessible and easier to understand in the affected communities in CAR?   FGC :   In the Central African Republic, public information and outreach focuses on access to justice through access to information, on meeting affected communities, on peace and reconciliation. The work of the Court is made public especially through screenings, urban intervention campaigns, and pop-up installations.   A number of outreach activities were conducted since 2019, when I joined the Court, including ones in relation to the arrest and first appearance of Mr Maxime Jeoffroy Eli Mokom Gawaka; the confirmation of charges against Mr Mahamat Saïd Abdel Kani; the issuance of the public redacted version of the warrant of arrest for Mr Mahamat Nouradine Adam; and progress in the trial of Alfred Yekatom and Patrice-Edouard Ngaïssona.   The Court’s country office featured a live broadcast of the hearings on the confirmation of charges against Mr Saïd on TV Centrafrique, a radio station providing national coverage, and a live streaming activity took place in the 4ème Arrondissement of Bangui, an area of interest in terms of victim communities. Something similar is being done for the hearings of the confirmation of charges of Mr Maxime Jeoffroy Eli Mokom Gawaka, in an area of Bangui, the capital city of CAR, where both parts of the affected communities (victims’ and suspect’s communities) will be present to follow the retransmission of this judicial instance. The country office continues with its urban intervention campaign (involving the use of roadside billboards to announce key judicial phases and reinforcing justice-related principles), the series of pop-up installations in key symbolic locations in Bangui showing proceedings-related videos followed by a Q&A session, and #LeGrandDébatSurLaJustice (a radio-based justice dialogue to address concerns and questions about the ICC).   Public information and outreach activities are conducted in the hinterland, in areas of interest in terms of affected communities in the ICC Cases, such as Bria, the birthplace and place of arrest of the one of the accused persons, Mr Saïd; Birao, the place of arrest of Mr Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’), a suspect in the Sudan situation; Mbaïki, one of the accused persons’ area of influence (Mr Yekatom); Boda; Carnot; Bouar; Yaloké; Bossangoa, the birthplace of two suspects (Mr Yekatom and Mr Mokom); and Berbérati.   CJLPA : Can you highlight the importance of publicly broadcasted court proceedings and access to information on what happens at the ICC Courtroom in The Hague?   FGC :   Access to information in CAR is also connected to other two key elements: reconciliation and deterrence.   For victims and affected communities, understanding how international criminal justice works and accessing its mechanisms, when possible, seeing perpetrators held accountable can be cathartic and can aid in healing and reconciliation. It is essential to note, however, that whilst the ICC can contribute to reconciliation, it cannot guarantee it. Reconciliation is a complex, long-term process that requires multifaceted approaches beyond just legal measures.   In terms of deterrence, public information about international criminal justice at work can deter individuals from committing international crimes. Knowledge on the ICC in general contributes to the establishment of a global norm against impunity. Over time, this normative shift can lead to systemic changes in attitudes towards grave crimes.   CJLPA : Could you please provide some insight on the ICC’s urban intervention campaign in the CAR?   FGC :   This is a twofold access to information and justice campaign. It consists of the installation and display of informative billboards in Bangui and in locations of interest in terms of affected communities, and the spontaneous set-up of pop-up installations with a big screen in the streets of Bangui that invite all passersby to follow trial summaries and to participate in quizzes about the Court. The latter is an open justice and a democratic public information and outreach tool, which is different from traditional outreach activities where key personalities or influencers are invited.   Billboards are placed in Bangui and in different cities in the hinterland in the Central African Republic, announcing key judicial instances in the ICC Cases, and also concepts and principles about international criminal justice, amongst them, the presumption of innocence and the importance of a fair trial, the relevance of the voice of victims, etc. This way, information is clearly visible for affected communities throughout the Central African Republic.   During the pop-up installations in the streets of Bangui, a big screen is mounted in different key neighbourhoods, attracting more than 200 people, who stop by to watch animations and videos portraying the work of the Court. One after the other, videos in Sango and French point to the latest developments in the ICC Cases in CAR: Yekatom and Ngaïssona, Saïd and Mokom. After the screening, the ICC team invites the audience to participate in a quiz about the Court. CJLPA : What advice would you like to give to anyone trying to get into a career in international justice? FGC : One certainly does not need to be a lawyer, but rather to have a vocation to understand the causes of things, which is the motto of my alma mater, the LSE. To understand how and why justice and law are important as social constructions and how they affect and impact social relations, including peacebuilding and reconciliation. This is the passion I find in justice and all its implications and connections, including the rule of law and law enforcement. I would also suggest developing a specific profile and specialising in a concrete area, but most importantly in something that can make one be proud of shaping the world towards a better one. This interview was conducted by Nour Kachi, Legal Researcher for 'CJLPA: The Human Agenda'. In addition to his role at CJLPA, Nour is currently working on qualifying as a lawyer in the US and UK.

Helena Wray is a professor of migration law at the University of Exeter. Her extensive experience in this area spans several publications, including two books (Article 8 ECHR, Family Reunification and the UK’s Supreme Court: Family Matters? in 2023 and Regulation of Marriage Migration into the UK: A Stranger in the Home in 2011), working as specialist advisor to the House of Lords Committee on Justice and Home Affairs during its inquiry into family migration, and providing expert evidence for landmark cases in the Supreme Court. This interview was conducted in November 2023, prior to the UK government’s announcement that it would be increasing the minimum income requirement for spouses and partners from £18,600 pa to £29,000 and then to £38,700. CJLPA:  Welcome, Helena Wray, from The Cambridge Journal of Law, Politics and Art . We are pleased to have you here today to discuss the legal and political issues surrounding migration in the UK. Firstly, a little bit of a background: what problems arise in the regulation of immigration?   Helena Wray : I think the biggest single problem is that immigration is such a highly politicized area that politicians feel compelled to make sometimes unsustainable promises. And it then turns out that these are things that can’t be done, or can only be done at huge costs, or only can be done with massive trade-offs. So, you tend to get a legal regime that’s often quite confusing, very changeable, sometimes quite inhumane, with limited accountability. And there are lots of people who are disadvantaged by this — employers trying to get workers in, for example—but the people who suffer most from it are the migrants themselves and their families. So, refugees, people seeking asylum, people wanting to come to the UK to join their loved ones, all of those people can find it very, very difficult to challenge those laws. Because, in essence, the government claims that it has, or would argue that it has, a mandate to do pretty much what it likes. And the law gives it very wide powers. Of course, migrants, generally speaking, don’t have votes. And so, if you’ve got two constituencies to please, you’re going to please the one that you think will vote for you.   CJLPA : Of course. And following from that, do you believe that the UK is actually facing a migration crisis as portrayed by the Home Office? Or do you think that’s a politicized view of it?   HW : The term crisis is always a construction. Events happen, and people respond to them. And one of the ways that you can respond to them is by saying it is a crisis and it requires emergency measures. Do I think quite a lot of people want to come to the UK? The answer is yes. Clearly, there are people, many people want to come to the UK. Why do they want to come to the UK? Often for very good reasons: work, family, study, to join loved ones, to flee persecution, warfare, civil war, environmental degradation, all sorts of things. Now, that can be interpreted as a normal event, something that is inevitably going to be going to happen in the world that we live in. Or you can construct it as a crisis that not just to be managed, but to be prevented, justifying all sorts of other measures. So, I think, there are lots of people who want to come. Whether or not it’s a crisis is very much in the eye of the beholder. But what I think is clear is that attempts to prevent this tend to just make things worse and force the movement onto other places.   So, we have a small boats crisis—I would say that is a crisis in my view, because people are risking their lives in horrible conditions to try to cross to the UK, at great risk to themselves. So, it’s clearly a really awful state of affairs. But you have to look back and say well, those people were people who in the past would have perhaps tried to come in lorries, before the route via lorries was blocked so comprehensively, or in the Eurostar, before all the fences were put up at Calais, and then even better for them, they would have come in, perhaps on a flight because they didn’t need a visa. If you go back historically, back to the turn of the 20th century, there were no real immigration controls at all, only 120 years ago. So, I think the reality is that people will want to move including into and out of the UK—whether or not that is a crisis depends upon how you view it.   CJLPA : What are the main barriers faced by families wishing to migrate to or wishing to reunite through migration to the UK?   HW : Well, the UK has one of the strictest family migration regimes in the world. In fact, there’s an index called the MIPEX (Migrant Integration Policy Index) which it looks at a large number of countries , including countries outside Europe , and rates the accessibility of their family migration policies, and the UK is second from bottom. The only other country beneath it is Denmark, which has a notoriously strict family migration regime. So, the regime that people face is much stricter than it is in other countries, and it’s pretty strict in other countries. There are quite a lot of countries which have quite difficult regimes, but the UK is particularly difficult.   It’s difficult in a number of ways. It’s very difficult to come in as a family member, unless you are a spouse, or a partner, or a minor child — a child under 18 — and both your parents are in the UK. That’s a really important qualification, you can’t just come in to join one parent if you’ve got another parent somewhere else. Outside of that group: elderly relatives, dependent siblings, adult children — it’s extremely difficult to enter. The rules are very strict, almost impossibly strict. So, the criteria themselves, the groups or the categories of family member who can enter are very narrow. Then even for those people who fall within that one of those categories, the rules are very demanding, particularly for spouses and partners. They require you to earn a minimum income , which many people do not meet , and this has to be met in very particular way. So, you have to earn it for at least six months, and you have to have the evidence to show that in numerous ways.   And that’s just the beginning ; there are lots and lots of other conditions you have to meet. You have to show your accommodation, and you have to get lots of documents ready. So, it’s a very complex system in that respect. And in addition, it is extremely expensive. Visa fees cost thousands and thousands of pounds. You’re not talking small amounts at any stage, because just the initial application plus what’s called the ‘immigration health surcharge’, and then after all the additional costs, translation costs, perhaps getting a medical certificate, you’re talking about several thousand pounds just to make the application. And then that has to be renewed after two and a half years, and then renewed again, after a further two and a half years, some]times you have to keep renewing that for up to 10 years or even longer. So, all the time you’re having to find thousands of pounds to support your visa fees. The whole route is complex, it’s expensive, it’s difficult to access. It really is not a family friendly route.   CJLPA : It doesn’t sound like it. And, talking a little bit more about how only spouses or partners or minor children can relocate to reunite with family, how has a narrow or perhaps outdated view of what family actually means caused problems for families or family members migrating to the UK?   HW : The question is about those who tend to be called ‘adult dependent relatives’. That’s the category in the immigration laws, and that could be your elderly parents or grandparents, but it could also be, for example, a sibling who is in distress and who needs support, or even your adult child. If you are in the UK, and you have responsibility for — and you’re very anxious about — one of those relatives, that’s going to make your life here very difficult, very complicated. You may have to spend thousands of pounds flying out to see them, you may have to make decisions about what sort of work you can do, you will be constantly preoccupied with trying to ensure that they’re looked after properly, you may feel extremely guilty that you can’t care for your family member. You’re torn between your family life here and then maybe children that you need to look after, and your elderly parents in another country, who also need care. It causes immense amounts of distress and anxiety. Some people who have options actually decide to go and live somewhere else that has got a more friendly regime, particularly NHS workers who go to other countries because that country will allow them to bring in an elderly parent, for example.   From the point of view of the migrant who wants to come in — the family member who wants to come in — the level of dependency or some vulnerability needed before they’re even considered eligible for a visa is extremely high. So, you’re talking about sort of people who are almost sometimes too ill to travel before they can actually qualify. It’s not absolutely at that level, it is sometimes possible to get people in, but it is extremely difficult. And I’ve seen two lots of problems with it.   Number one: it really is discriminatory, because the people who’ve got family members abroad are generally people who are themselves of migrant descent . You wouldn’t have an elderly parent or, in most cases, a sibling or an adult child who lives abroad who can’t join you   unless you yourself are of migrant origin. So it discriminates, it creates a class of people who can’t have the same sort of family life that the rest of us can look forward to having.   The other problem is that it takes a really functional and instrumental attitude towards what family is. So, for example, one of the arguments will be: ‘well, you’re paying for care for this elderly person, or you can pay for care for this elderly person, in a home somewhere in another country. So why do you need to bring them in?’. Well, that’s not what family life is about. Family life is about caring for people who you want to have with you, about that type of love and affection and reciprocity, and these aren’t recognized at all. And I think another aspect of this — which perhaps is really not discussed enough , and of which I  think some people who work in migration are also a little bit guilty, because we want to make the most compelling moral case that we can — is that it’s not just about extreme vulnerability and extreme dependency, it’s about the quality  of family life. So, you could bring in a parent who is maybe in their 70s, or late 60s or whatever, and they won’t be economically active, but they will be a very vital part of their grandchild’s life, they will really enrich family life, they can offer advice, they can offer support, there are all sorts of ways in which family life is enriched by having other relatives live with you. And those sorts of considerations just do not enter into the way that the rules are set up.   CJLPA : That’s really, really interesting. And how does the accessibility or on affordability of good quality legal advice affect migration?   HW : It’s a major issue in this country. We have some absolutely brilliant immigration lawyers. And I know many, many immigration lawyers who work extremely hard for their clients and are extremely well informed. There are also some advisors — immigration is a regulated area, you cannot offer immigration legal advice unless you’re either a solicitor or a barrister, or you are approved by something called the Office of the Immigration Services Commissioner, which makes you take exams and checks your knowledge — but even so the quality of advice is quite variable sometimes. And people cannot always access the best advice. The rules are incredibly complex and, frankly, impenetrable. I know there was a simplification exercise going on that we might hope to get round to the family migration rules at some point. But at the moment, if I said to you, please go away and read appendix FM — which is the bit of the immigration rules that deals with most family applications — you would just be lost within a couple of minutes. They are extremely difficult to read, to follow, you have to read them in conjunction with other parts of the immigration rules, you have to look at the guidance, you have to cross check between different sections, you really need to know your stuff. You might, if you’re good and pretty capable, be able to do your own straightforward managed visa application — but if you want to bring in an elderly relative, or there is some complexity about your case, you really need legal advice.   And legal aid is not available in immigration cases. You can sometimes get what’s called exceptional case funding in human rights cases, but that is really complicated to get because you have to make a separate application first for which the lawyer is not paid. And then once that is granted, then you have to find a lawyer who will take your case. And the problem with that is that the number of lawyers doing legal aid has really plummeted, because it’s just not well paid enough, people can’t make a living doing it. And we’re not talking about making a really fantastic living and living in luxury, but making a basic salary that somebody who’s undergone years of higher education and training should be able to earn, nothing spectacular. So, there are real problems there in what’s called a desert in terms of legal advice, especially in certain areas of the country. Now, with technology and so on it is easier to instruct a lawyer in a different part of the country and have Zoom meetings, for example. So, it’s not that necessary to always have to have someone local. But it’s just generally that there isn’t enough good quality advice, unless you’ve got the money to really pay for it.   CJLPA : And that money is obviously on top of the visa application costs and the income requirements needed anyway. You did touch a little bit on income requirements and how they create problems. But can you talk a little bit more about that? And also about whether the income requirements actually fulfil the intended purpose set out by the home office?   HW : So, the minimum income requirement, or the ‘MIR’, as it’s called, is probably the most controversial bit of the immigration rules for spouses and partners. Just to give you a bit of history, it was introduced in 2012. Before that, there was a much more general test, which was called adequate maintenance. Basically, what that meant was that you had to show that if your partner came into this country, that together   you could keep yourselves at a level above income support level, benefits level. So, above a minimum standard, which is reasonable, because you don’t want families falling into destitution and poverty as a result of this. It was a basic check ensuring that families are self-sufficient.   In 2012, the government introduced the MIR, at a level of £18,600 a year. Now, at that time, that was actually very high; around half the people of working age could not meet it. So, that excluded large numbers of people. And it excluded large numbers of people in quite a discriminatory way: for example, typically women with caring responsibilities, people who live in poorer regions, where wages are lower, people who have other caring responsibilities, and also people who are studying, people who are undergoing training, people who are in low paid professions doing really vital but low paid work , like care work . They could all very easily earn below £18,600. So, it’s been extremely problematic for many years. And it’s been very controversial and there’s been a lot of criticism of it. And those criticisms do continue because they remain valid.   I think the way in which the MIR now operates is slightly different, because obviously wages have gone up in the interim. So, if you have a full-time job—40 hours, 36 hours a week, something that equates with a full-time job, at the minimum wage—you will meet the MIR. But the problem is that many people work on variable hours contracts, zero hours contracts, casual employment, people are self-employed, and they don’t necessarily get the minimum wage from their self-employment. And in addition, you can’t just meet the MIR at the moment that you make the application, you have to have met it for a minimum of six months before. So, it’s comparatively low, it’s just complicated to meet.   The other thing is that it puts all the onus on the sponsor. Say your partner is outside the UK. You, the sponsor, at the moment of admission, the moment that you make the application for them to come in, must earn this amount. But what if your partner is a merchant banker, and you’re a student? You’re not necessarily going to have the money, but there’s no doubt that they’re going to make the money. There are some ways around this. You can sometimes meet it by very large amounts of capital — but we’re talking about pretty substantial amounts, over £60,000, if you haven’t got an income at all — and there are some exemptions for people who have disability related benefits and carers allowance and things like that. So there is some flexibility, but not much. It has proved extremely problematic for lots of people. And there have been many reports of people being separated, including children who’ve been separated from a parent. It was estimated in 2015 that are about 15,000 children who were affected in this way.   Does it meet its purposes? There’s no evidence to suggest that it does. The idea behind it was to avoid families claiming welfare benefits. Now, to begin with, when you come into this country, and you’re in what’s called your probationary period, which is at least five years, you are ineligible for public funds anyway. So, it’s not as if you’re going to go off and start claiming housing benefit. But also, it’s just not a realistic assessment of the position of the family after they’ve come in. Because the other party will be earning money, almost certainly, it’s not that difficult to find some sort of work. If you’ve got a sponsor who’s earning, say, £15,000, for a low-paid job, or a part-time job, they don’t meet the MIR. But what are the chances that their partner, when they want to come in, will be able to earn £3,600 a year in order to make them up to £18,600? It’s just not a realistic assessment of the family’s position.   It pushes people onto benefits. There have been quite a lot of reports of sponsors who have children with their partner abroad. And I think one of the things that the government didn’t take into account is that if people want a family, they will have a family. They’re not going to wait for the government to approve them and let them in, so you get the situation where people have had babies and children — they’ve often had to give birth on their own, because the partner can’t come in — and then they are a single parent. And of course, it’s much more difficult for single parents to work. So, then they end up actually claiming benefits. And the government’s own assessment — and this is what’s really interesting — the government did an impact assessment of the fiscal benefits, and it made this claim that there were going to be lots of fiscal benefits, which would save the country loads of money. But when you looked into it, it wasn’t going to save any money at all. And they did it by forms of double counting of various things — it was quite manipulative. In fact, claims for welfare would increase after the MIR came into force, because of the numbers of parents who were left on their own. So, there is no evidence to show that it has it has reduced welfare reliance. And although the evidence is a little bit speculative and anecdotal, -I can’t say that it’s been done, there is no systematic data on this - it seems it’s likely to increase it.   CJLPA : That’s really interesting, that it actually may have done the exact opposite of what the Home Office wanted to do. How do the costs with the of the visa application itself create burdens? Do you think it’s ethical or right for the Home Office to actually profit from visa applications?   HW : Well, the visa fees have just been put up by further 20%, in October. So, they’re now just astronomical, really, really, really high. A further point on the MIR : the £18,600 is for a spouse, but if you want to bring in a child who’s not a British citizen, it is higher than that. So, if you married somebody from abroad, and they had two children whom they wanted to bring them with them — your stepchildren — and they were even able to come in under the immigration rules , perhaps because the other parent had died , even so you’d have to earn more than £18,600 to sponsor them. So, it is all extremely difficult. And the reason I say that is, I’m starting to think about families living in the UK, where they have to make renewal fees. And those fees for say, a spouse and two children are not just paid at the beginning, but then paid again after two and a half years, and people just can’t afford it, or they have to make really difficult choices. Do I save up for the visa fee? Or do I turn on the heating, or do I feed my child? All sorts of very, very difficult choices.   So what you get, actually — and this is increasingly being reported — is that families, people who are here regularly with a visa, with leave to remain become irregular, lose their leave to remain, become counted as amongst the illegal migrants — not a term I want to use, but how they are often described in media — because they can’t afford the visa fee. Or you get people having to make the invidious choice: I’ve got two children, do I pay the fee for one or for the other, which one gets the visa, which one gets a path for citizenship, and which one becomes undocumented? So, the visa fees are extremely problematic.   Do I think it’s ethical? No. The idea behind these very high visa fees is that is that they pay for the overall costs of the immigration system. But these people are not responsible for the overall cost of the immigration system. If you’re living in or you’re applying to come to the UK perfectly legally, you’re doing everything right, or you’re trying to renew your visa — and again, you want to make sure that you don’t become irregular — why should you have to pay for the removal from the UK of somebody who hasn’t, who has overstayed their visa? It’s a service, if this country has decided that we need these very strict immigration controls, it shouldn’t be the users of the service, who have no choice but to use the service,   if they want to come in , who pay.   CJLPA : How do inconsistencies emerge within the UK migration system, and how does that discriminate against or disadvantage some families?   HW : So, the UK does have obligations — under   international law — to recognise people who are refugees under the Refugee Convention, but it is trying to distance itself from those obligations. One of the ways it’s doing this is by creating these bespoke routes for certain favoured groups. I do think, of course, that we should be helping Ukrainians and their families to reach safety. And, we have a responsibility — they are our neighbours — but we also have responsibility to many other people. What about Afghans? What about people from Syria, or Iraq? And now, of course, we’ve got the terrible situation in Gaza, as well. All of those are people who want to reach safety. And in many cases, particularly in Afghanistan, where the UK has been very involved in their threats, as a result of its foreign policy, you can argue that we have a strong moral responsibility towards those people.   What you tend to find is that the government will use what they call the ‘safe and legal routes’ in order to justify trying to deter people from coming in other ways to seek safety. But when you look at what those safe and legal routes are, they really don’t exist beyond the Ukraine scheme, and also beyond another scheme that was for Hong Kong nationals again as a historic link. Again, it’s not that I’m against that scheme, but I think we should be looking at what more widely are our responsibilities. There is a problem that some people seem to be more deserving than others, and it feels very discriminatory.   CJLPA : On a similar line, do you think that the requirements for competency in the English language for migrants joining their spouses or partners create additional burdens, and perhaps discriminate as well?   HW : First of all, obviously, if you’re going to live in the UK being able to speak English is going to be very important. So, it’s not that people shouldn’t be learning English if they’re going to live here. The problem with the pre-entry test — it’s quite clever the way it’s done because it’s very low level, it’s A1 speaking and listening — but it’s the ability to learn English before you come here . It really, really differs depending upon where you are, who you are, your level of education, and so on. So, it might not be that difficult, if you’re living in a large city such as Beijing, or São Paulo, to go and find a language school and to take a test and get some language skills. But if you’re living in a rural village 500 miles from anywhere with perhaps very intermittent Internet, and lots of other problems — such as if you’re not literate — even speaking, getting access to the tuition is going to be difficult, and travelling to take the test is going to be difficult, and you are expected to take the test.   It’s a test that many people fulfil very easily, but I don’t think it’s recognised that it is more difficult for some people. The government say, ‘you can’t come in, because you haven’t met the English test’—but then, how are you going to learn English? If you can’t learn it, you can’t learn it. Whereas if migrants were allowed in, they could enrol in — I know, there is a shortage of local classes — but, there’s a possibility of learning English at a local college in the UK. And you perhaps you can have some sort of expectation that people will go along with that and make an effort.   The other thing that I find quite disturbing is that there are exemptions, but those exemptions are quite elitist in character. So, one exemption is that if you have a degree taught in English — fair enough, obviously, if you’ve got a degree taught in English, you presumably meet the test. But if you’ve got another qualification in English below degree level, you’re also going to be above A1 speaking and listening. For example, if you’ve got an equivalent of a baccalaureate or an A Level in English, that’s going to show that you have some ability. The other thing that I think is more disturbing is that there are exemptions for what they call majority English-speaking countries, and those are countries for whom English is the national language. So, as you’d expect, US, Australia, New Zealand, and so on, but no African countries. Now, many African countries have English as the main language of communication, as one official language, because there are many, often local languages. And it’s unlikely that there will be many people who don’t speak any English at all. There is this risk, because not everybody who lives in Ghana or Nigeria will have learnt spoken English at primary school, been to primary school and learned English. But let’s take the example of Canada, which is exempt. If you go to French speaking Canada — to Quebec — everything is in French. You can naturalise in Canada without speaking English, because you can choose French as your language, you can go to University in Montreal or Quebec City and never have a course in English. I have myself taught master’s students from Canada, and I’ve had to send them off to the language centre because their English is just not good enough. So, it is quite suspicious to me that Canada is okay but Ghana or Nigeria isn’t.   CJLPA : Definitely. That’s really interesting, I didn’t know that. Talking a bit more about children, do you think that children’s interests are prioritised in immigration cases as much as they should be? And what issues and dangers particularly surround children in the context of migration?   HW : There are a lot of problems with children. There’s an obligation in international law under the Convention on the Rights of the Child to treat children’s interests as a primary consideration in any decision that concerns them, and that duty has been more or less implemented into British law through Section 55 of the Border Citizenship and Immigration Act, after the UK withdrew its reservation on immigration and nationality matters. So, the UK Government does have an obligation to treat children’s interests as a primary consideration in immigration decisions that concern them. And incidentally, that seems to be part of the European Court of Human Rights, Article 8, family life jurisprudence as well.   Now, saying that a child’s interests are a primary consideration doesn’t make them the paramount consideration. There is a distinction. So other factors can outweigh them. It’s still a relative standard. There have been a number of Supreme Court cases on this. Essentially, what the court has said on that — really quite strongly — is yes, they are a primary consideration, but they can be outweighed by an accumulation of other factors. But no single  factor is more important than children’s best interests. And the Supreme Court has also said that nationality , the interests of a child in growing up in their country of nationality , is part of their best interests. So, when you have a British child, it is in their best interest to grow up in the UK and to be part of British society.   So, there is — in theory — quite a strong obligation. And I would say that has had some impact. There are some more provisions, both in statute and in the immigration rules, that say, for example, that where a child is a British citizen or has lived in the UK for seven years, a parent should not normally be removed if it’s not reasonable for the child to follow them. So that does help some families and it is now easier for some families to stay together. But although that is a right that exists in law, I think it can be quite difficult to make that work for you — there are these provisions, but then the guidance may take quite a narrow view. And you would need a lawyer, or somebody really experienced in those sorts of arguments to say, look, the way you’re interpreting this, these obligations are just not strong enough, it doesn’t comply with the government’s legal obligations. It still can be considered reasonable to expect a British child to leave their home and go to live with in another country. What does that mean? What is reasonable? How much disruption are they expected to have? I would say that there is more protection now for British citizen children, in terms of not having a parent refused admission, or being forced to go abroad and splitting up the family in that way, provided they have the resources and the resilience and so on to argue that and put the case in the proper way. But where you have children who are not British citizens, and who are living in the UK, it’s a much less favourable picture. And we do have lots of children living in very uncertain immigration conditions. There are, I think, possibly around 100,000 children who have been born into the UK but don’t have British citizenship, because you no longer get British citizenship just by virtue of being born in the UK, you have to have a parent who’s got settled immigration status or citizenship.   That can be very uncertain itself. For example, we’ve had the Windrush scandal and uncertainties around what people’s status is. So, you can get these families where they don’t really know what their status is. And it can be extremely difficult to prove it. They might have a right to register the child as a British citizen, but that’s a very expensive application, it costs more than £1000. And again, you have to be aware that that opportunity is there. And then, you’re going to get families where perhaps the parents came with a child at a very young age, and they’re living perhaps without leave here. That’s not the child’s fault. That’s not a decision the child made. But it means that child is growing up in very precarious, very marginalised circumstances, with no recourse to public funds. It means that the family can’t get supported in the way that other families might get supported. And they do live a really precarious and difficult life. So, I’d say that there is a lot more we could do to protect children’s interests in, in immigration, and also in nationality law as well.   CJLPA : How do the UK’s migration policies interact with human rights, particularly of course the right to family and private life, but even the right to life itself?   HW : Obviously, as you probably know, under the Human Rights Act, convention rights have been brought into British law, and they are binding on decision makers, and on courts and tribunals. So, if you take the right to life, first of all, you would think that it’s really strong, right? It’s the most basic right of all, to stay alive. The problem is that it sort of doesn’t really operate. The threshold for showing your right to life is going to be threatened by for example, being sent to another country is really very high. And in fact, in those circumstances, you’re much more likely to rely on Article 3, which is right to protection from the prohibition on degrading and inhuman treatment and torture.   Article 3 has been very, very important in immigration because where people, for whatever reason, can’t fall within the Refugee Convention — and that has its own criteria that that do exclude quite a few people —but  under Article 3, where there’s a reasonable likelihood that you will suffer inhuman or degrading treatment or torture, if you’re sent back to your country, then you cannot be sent back home. And you have to get some form of humanitarian protection or other type of leave. And that has operated to protect quite a lot of people, for example, fleeing civil wars, and so on. So that has been very important.   Human rights have also been important occasionally in looking after the interests of people who are already here. So, there was an important case around Article 3, when the government tried to remove any form of subsistence from asylum seekers, and they were all becoming destitute, and sort of just living on the street. And that was found to be a breach of Article 3, because they’re asylum seekers, they can’t then go anywhere to go until their claim is decided.   When it comes to Article 8, that’s the right to protection for family life. And that is a key one for families. The problem is that Article 8 is a qualified right. So, on the one hand, you have the right to protection of your family life. On the other hand, if it is proportionate, if there is a public interest or it is for the public good that you should be removed or refused admission, then that can outweigh your family life claim. So, the extent to which Article 8 can inhibit governments or put restraints on what governments can do has been really widely litigated, both in the European Court of Human Rights and also in the domestic courts in the Supreme Court. And I think where we are now is that the public interest in immigration control is very, very strong. You can argue about whether that is a correct interpretation of Article 8. And there are some quite complicated legal arguments around that, which I won’t get into here. But the fact is, that is what the courts are saying, so that’s what the position is. And so,   if you don’t have an immigration status, so either you’re here and you don’t have a status, or you want to come into the country , it’s only going to be really in exceptional cases that Article 8 is going to help you. It does have an impact, but its impact is quite at the margins, it is not going to really change or revolutionise immigration policies, it just enables a few difficult cases to succeed.   As part of all the battles that went on in the courts over a period of about 10-15 years, the government legislated. So, obviously, if primary legislation overrides the Human Rights Act — in terms of, implied repeal — to that extent, even if they’re not complying with their obligations, it would probably prevail, at least here in the domestic courts. But the fact is, probably what they’ve said in the statute, as well in the immigration rules, is pretty close to what the Strasbourg Court would say, because the Strasbourg Court has been really quite cautious in developing Article 8. And so, there’s often not a lot you can do.   CJLPA : That’s interesting and quite frustrating. You would think that human rights would play more of a role and help more people.   HW : I think people were hoping that it would. I think, obviously, the government’s got its own point of view, and the government, particularly at the moment, is very keen to minimise immigration and so it’s going to do the bare minimum.   Article 8 doesn’t say anything about immigration. So, you’re having to interpret Article 8 in a new context. And we’ve got the living instrument doctrine. We’ve also got the fact that you’re asking states to do something — when Article 8 concerns family reunification, that is regarded as a positive obligation on states, and the courts are going to be quite cautious about that. Essentially the Strasbourg Court, does rely very heavily on state consensus, and there isn’t a consensus on this issue. It’s not that the states are not all moving together towards trying to be nicer towards family migrants on the whole so they feel they have to leave a margin of appreciation to domestic authorities, and that they’re acting in a supervisory capacity. So, there are some cases that succeed at Strasbourg. And those cases have given an indication of the sorts of cases that might succeed. So, you do have some degree of, of clarity now that there are certain types of cases, almost always involving children. It is very difficult to bring an Article 8 case without there being a child, and this best interest of the child is now quite a powerful tool for that reason. But they are really only a very few cases.   CJLPA : When you were talking about the best interests on society, how does migration policy affect wider society in the UK in all aspects, so public services, or the economy, for example?   HW : It’s difficult to know the data on this, because obviously it’s a counterfactual. We don’t know what the world would look like if policies were different. But we’ve seen post-Brexit, the impact of Brexit, where it’s quite clear that Brexit has created a lot of shortages in the economy, and that this has had a damaging effect. So, I think, generally speaking, the upsides of migration have not been fully appreciated, and people will begin to appreciate that a bit more now. I think there’s been a lot of anti-migration talk, and not enough appreciation for how much our public services and other industries — catering, care, across the board, really, because migrants range from being very skilled, to doing more practical work, food processing, and so on — how much all of these sectors have been affected by labour shortages. So, not allowing migrants in does have a negative economic impact.   Now, that’s not to say that that’s the only issue. Obviously, economics isn’t all of it. I think that there is a tendency to blame lots of things on migrants, such as ‘I can’t get an appointment at my GP’ or ‘schools are overcrowded’ or whatever, where that is really a problem with investment in public services, and how we run our public services. Housing, for example — why are we not building more houses? It isn’t that the immigrants are taking them all, it’s that we have a real problem with building houses in this country. So, I think that the upsides of migration have been really underestimated.   Obviously, in my field in family migration, it’s really, really clear the damage that’s done to families. And I think one of the things that’s not been that much appreciated is how widespread a phenomenon this is. 50 or 60 years ago, it was primarily the ethnic minorities who had relatively recently arrived in the UK, who were wanting to — for the most part — bring in spouses and children and so on. And they were very badly treated, and the policies then were very harsh and very discriminatory. But they were a bit of a side issue politically, because the vast majority of the population weren’t implicated in them, they weren’t really affected. But we now live in a very different world and those are populations that have been here now for 50-60 years and are very, very much part of British society and that is not going to change, and yet they still have connections with their ancestral home. And in addition, we’re all very much more global — we move a lot more, we go abroad a lot more, we go on holiday, and you can meet somebody on holiday, you can meet somebody if you’re studying for a term at another university. If somebody comes here on a visit or a tour or, whatever, they might meet someone and want to settle and get together with them.   So, I think the restrictions in family immigration affect quite a wide range of the population now, and it’s much more of a mainstream concern. And it really does damage families and divided families, it causes a lot of heartache, it causes a lot of pain, it causes a lot of practical difficulties. It’s really important. Nothing comes without costs. There’s not some magical world in which only good things are going to happen and none of the bad things, but I think that we have had a very unbalanced view of what migration can do, and its benefits. And we’ve focused so much on the negatives, that we’ve lost sight of the fact that a society that isn’t open, isn’t culturally open, isn’t outward looking, isn’t welcoming — that that’s not a very nice society to live in.   CJLPA : One final question that I thought would be interesting: what barriers to entry may those seeking asylum in the UK face? And what burdens do they have when applying for asylum, for example in proving that they face certain dangers?   HW : So obviously, the first challenge for asylum seekers is to get here. And that, as we all know — with a small boat, everything else — that’s extremely difficult. And the reason, there’s lots of reasons for it, but one reason is that the obligations, both in human rights law and in asylum law, really only kick in when the person is within the jurisdiction, which for nearly all purposes means within the territory. There are some marginal cases outside of that, but generally it is within the jurisdiction. Whereas in asylum law, to send someone back from the borders of your own country, into a place where they may face persecution — so if they’re not at the borders of your own country, if they haven’t managed to turn up at the airport or whatever — then you don’t have any obligation towards them.   There are all these obstacles. And it’s been going on for years with carriers’ liability, fining airlines and lorries and all sorts of people, if they bring someone in, the visa requirements, the juxtaposed controls, whereby you have to show your passport in France before you get on the ferry, or the Eurostar, all of those are aimed at stopping people coming.   If you do get here, and you make a claim for asylum, you’re in a very inefficient process, with loads of delays, ways in which the government will try to make your life difficult, it will try to find reasons to say that you haven’t complied, that didn’t set up the right meeting, but you might not have got the notice, for example. You’re not allowed to work. So you are reliant on very small amounts of benefits, and you don’t really have any choice and accommodation, you can end up living in areas, where that can create tension, because obviously, if you put a load of young men into an underprivileged area, and then don’t allow them to work, they will be seen as hanging around and looking a bit threatening. It’s not their fault, but it can create tension.   So, it’s a very hostile environment in terms of how they’re having to live. And then they have an initial screening interview, and then they have to make a substantive asylum claim, and then maybe get some legal advice beforehand. And in the asylum interview, they have to show that they face persecution, if they’re not to be sent home. And the burden is on them, the government sees itself as having no obligation to assist them, even though it may have access to information. And it’s a really draining, frightening, scary process. You’re allowed an interpreter, but they may be of variable quality, and if you don’t perform well, that can be fatal to your claim. So, it’s very stressful, very difficult.   Very high proportions of some nationalities are accepted. If you come from Syria, Afghanistan, places like that, the chances are very high that your claim will be accepted, because you can’t send people back to those countries that are in such a bad way. So, I think we could make the barriers easier to some nationalities, that’s definitely true. And then you have to appeal. If you get an adverse decision after appeal, you have to find a lawyer. It’s just very, very hard for people who are in a foreign country miles from home, often very worried about their families, worried about what they’ve left behind, very uncertain, living in limbo, for a very long period; it’s a very dysfunctional system. They may be detained, which is unpleasant, or they may be living in very poor accommodation.   If they do receive refugee status, then they have a measure of security, although they’ve then got to navigate the world without much support. It can be quite difficult to bring in family members, if you’ve got family that were already in the country of origin, when you left, there is a more straightforward, cheaper process. But other than that, it can be very difficult to bring people in. So, the whole system is extremely difficult. I would say from the decision maker’s point of view, you’re having to establish the veracity of something that is probably incapable of being proved entirely. It can be quite difficult to know for sure whether something’s true. The standard of proof is supposed to be quite low. In asylum cases, it’s meant to be on the below the balance of probabilities, it’s meant to be reasonable likelihood, which is well below 50/50. But most people would say that the standard is not really applied in practice. Some people have to meet it at the higher level.   CJLPA : Thank you very much. This interview was conducted by Eleanor Taylor, a geography graduate from the University of Manchester, currently studying the SQE to pursue a career as a commercial solicitor.

Boarding a crowded Delhi Metro train, I was crammed up with four college boys who seemed quite amused by my Tibetan face. As if the grins exchanged among them weren’t enough, one boy let out a catcall ‘Ching chong ping pong’. I face this every day and usually don’t have the time or energy to react to such racist verbal attacks. Since there were a couple of stations ahead, I inched closer to the teenager, shook hands with him. While still holding his hand I said, ‘Yenna da, yenna wennu?’ (‘Hey man, what do you want?’). They knew it was one of the four South Indian languages but couldn’t even guess which. Then I taunted him in Hindi: ‘Aap koTamil nahin ati hai kya?’ (‘So, you don’t speak Tamil?’). By then, the entire crowd on the train was staring at us, listening to every bit of the exchange.   To this new-found audience, projecting my voice I gave an impassioned lecture on Indian nationalism, quoting the right-wing Indian Prime Minister about the beauty of India’s unity and diversity among its 1.25 billion population. By now, the entire coach vowed silently never to take on a ‘chinky’ in public.   Until the mobile revolution, when wires connected the world, we encased ourselves in STD/ISD booths to make phone calls. International trunk calls were expensive, but a certain call package made phone calls to Tibet affordable. Since half of Dharamshala Tibetans came from Tibet in recent years they all called Tibet regularly. This was the only direct link between exile and home.   Once, on the Tibetan new-year, Losar, I watched a long line of young men and women outside a phone booth in McLeod Ganj. One by one the refugees enter the cubicle, speak to their loved ones in Tibet, cry, and come out emotionally wrecked, then pay and leave. I called the booth the Cry Box. I realized that the maximum number of Tibetans in Dharamshala cry during Losar.   That evening, as I walked down the hillside taking the shortcut through the pine woods and oaks, I reflected that they were fortunate to have someone to cry to, a house to call home. Being exile-born myself and having been deposited in a boarding school as a semi-orphan from early childhood, I find it painful even to write here that I grew up distanced from my family. That night I wrote:   Losar is when we the juveniles and bastards call home across the Himalayas and cry into the wire.[1]   Through the profound loneliness of being far away from parents and our imagined homeland, I often thought that we were children of our circumstances, and that history was our father and the culture that nourished us was our mother.   As refugees, we have been physically uprooted from our homeland, but as transplants we are unable to settle down in the foreign land. Over and above that even the future looks bleak today. As born-refugees we have nowhere to call home. My parents’ generation look to the past with nostalgia for the memories of the homeland they left behind, but as exile-borns, for us, more than the borrowed memory, our history, the dream of liberating our country, fires our imagination. We look to the future with hope. Freedom is my first inspiration in life.   My parents were teenagers when they followed His Holiness the Dalai Lama into exile in 1959, escaping persecution by Mao’s army. Initially, most Tibetan refugees worked as road construction labourers in the early rehabilitation period. My mother tells me I was born in a tent in a roadside coolie camp in Lahaul valley in the early 1970s.   I must have been a restless toddler. Mother says she used to tie a rope around my waist and peg it on the roadside while they broke stones and laid the road. After my father’s death in our camp in Manali, north India, we moved to Kollegal in the South Indian state of Karnataka and pioneered the Tibetan settlement most distant from the Himalayas. I was two-and-a-half-years-old.   I first heard about Tibet from my grandmother. She was a storehouse of stories. Her tales about Tibet built up an imagination of a country we had never seen. Our refugee camp was set up on the outskirts of Sathyamangalam jungle, the thickest jungle in all of South India, where the notorious outlaw Veerappan used to hunt elephants and logged sandalwood trees. We had been rehabilitated truly in the middle of nowhere.   There, in the heat and dense jungles of Karnataka, my grandmother told us stories of snow-mountains and yaks, of apples, peaches, and apricots. Momo la had songs for everything: songs for games, skipping, farm work in our maize fields, and the long walks to the local vegetable market. She told us stories of Aku Tompa’s wit and wisdom. And this is how we became Tibetan, even after being born in India and never seeing the real Tibet.   Every once in a while, the afternoon somnolence in our village was broken by a shrill sound from the Indian woman who came into our camp to sell the popular South Indian rice-cake snack, idlis. Bored with our bland and over-cooked Tibetan food, we kids rushed towards her. We loved the soft idlis dipped in spicy masala soup called sambar with a dash of coconut chutney, all served on a banana leaf. Sometimes the ice-cream man came by on his bicycle with a bullhorn blaring its pom-pom greeting.   On other occasions it was the bucket exchange man shouting in Tibetan in a long wavering tone ‘Ha…yang…dung…pey…’. Having never gone outside our refugee colony, I had often wondered, and even asked my mother, where these Indians came from, not realizing we were the ones who came from outside, all the way from the high Himalayas.   But it was not until in school that I first understood that we did not belong to the country we were born into and that we had lost the independence of our country and were now living outside Tibet at India’s sympathy. This shattered my little boy’s pride. This initial hurt transformed into anxiety as I imagined our people being blindfolded, knelt down with their hands tied behind them, then shot in the back of their heads. This, their children were made to watch. As the body slumped into the pit, the kids cried.   And then the guilt that we lived in freedom while our brethren suffered tyranny, which was replaced by the great resolve to struggle for the freedom and dignity of our people even though it required a herculean effort. This resolve inspired me to take a lifelong pledge. I was eleven years old. Today, I honour this pledge with a symbolic red bandana that I wear on my forehead and have vowed never to take off until Tibet is free, and to work for Tibetan freedom every single day.   After schooling, my first foray outside the Tibetan community was Madras, the capital of the Tamilian world in South India. I was shocked, not only by the people, place, and language, but also by the palate. My tummy, raised on Tibetan gastronomy, was being tested by fiery masala foods. My childhood snack, idlis, resurfaced, but this time as the staple main course. In the first week, the tangy masala meals were fun. However, by the third week my Tibetan digestive system started to give up. The light rice meals soon made us hungry again, the masala burned our guts.   Often, in the middle of the night, I sat up on my bed, pressing a wet pillow to my belly while trying to study. My guts burned and I regurgitated a sour juice up my gullet. Combined with the anxiety of tackling Shakespeare, Tagore, and Subramanium Bharathi, I stayed late on my bed in the half-lit room and cried deep into the night.   Now, South Indian cuisine is one of my favourites and even after twenty-five years I can still show off a smattering of Tamil. Where adaptation meets a dead end, creativity takes the lead forward; perhaps exile is the most fertile ground for growth.   Two years ago, I went on a speaking tour of the UK. Tibetans living in the towns and cities that I visited hosted us. After much speaking, travelling, and interviews, when we gathered for dinner with long-lost friends, the food was inevitably rice, dal, and curry, typically Indian. I realized Tibetans have gone to the West, but culturally they have never left India.   Today, almost seventy thousand Tibetans have emigrated to the West. They have not only become citizens of the world, but also preserved their identity. However, the third-generation youths are a concern; like most emigrant children, they have inherited the blood and the stories, but mostly not the language.   When my classmate buddy, Tenzin Choegyal, dropped out of regular college, friends thought he was straying because of his fad: music. He used to listen to Hindustani music when none of us had developed a taste for it. He used to go ‘aaaa aaaa’, drawing clouds in the air with his hands as he tried to sing intricate ragas. Many years later I saw him leading singing tours in Australia, packed in an old sputtering brown minivan. He travelled for months, singing and telling stories of Tibet in various villages and towns. He sings long arias of traditional Tibetan pastoral tunes which are immediately arresting and soulful. There is a deep sense of longing and loneliness in his melodies. Recently he has been nominated for a Grammy, his first global recognition.   During a phone conversation a few years ago, a Tibetan from Tibet told my friend in Sweden—with a great sense of pride—that Chinese in Tibet still did not dare to walk alone in Tibetan neighbourhoods as they fear being knifed or mugged. My friend asked him how that was possible, as the Chinese were now the majority in Tibet. The native observed that the Chinese had not yet overcome their archetypal fear of Tibetans and Mongolians as barbarians, and that Chinese exoticization of Tibetan culture has further reinforced this civilizational stereotype.   As a poet and former political prisoner, my friend Phuntsok Wangchuk had always been the first to speak up against Chinese propaganda in Tibet, for which he had been tortured and jailed for six years. But the anti-Japanese propaganda films he had enjoyed in Tibet seemed to have worked on him. As a result, when he first arrived in Dharamshala, he couldn’t believe his eyes watching the almost exaggerated politeness, and the courtesy regime of the Japanese youngsters who bowed thrice before serving the Tibetan political prisoners with food and clothing.   Tsewang Dhondup arrived in Dharamshala with his wounded arm slung around his neck. He said, ‘I hid in the mountains for months and escaped Tibet to bear witness to the atrocities I have seen with my own eyes and suffered myself’. Tsewang was shot twice in the Uprising protest that spread across the Tibetan Plateau in the months leading up to Beijing Olympic Games in 2008.   This Uprising gave birth to two movements: the Lhakar Movement celebrates and instils cultural resistance while a series of unabated Self-immolations demanded ‘freedom for Tibet and the return of His Holiness the Dalai Lama to Tibet’. So far, there have been 157 known cases of Tibetans burning themselves inside Tibet alone, making their ultimate sacrifice of life for freedom.   A while back, a friend’s stay with her family in Tibet was cut short and she was told never to return. She told me that the entire country of Tibet has been under lockdown; even the few passports issued have been revoked. Every individual has been registered as a number and pinned down to each small unit of dwelling and their movement mandatorily kept under surveillance. Tibet is now a police state. To mine lithium, copper, gold and rare-earths, China’s activity in Tibet is pushing Tibetan nomads and farmers off their ancestral land, coercing them to rehabilitate to alien and artificial villages, much like how White American colonists transplanted Native Americans into fenced plots called ‘Reservations’.   Once, on a long train journey through central India, I sat down on the carriage’s entrance footboard with a stranger. Like me, my co-passenger, Ramchand, didn’t have a reserved seat. Over a cup of chai, he looked at my face and enquired if I was Chinese. Hiding my immediate irritation, I put my best foot forward and declared: ‘Hum Dalai Lama admi hain’ (‘I am a Dalai Lama follower’). That didn’t ring a bell with him. Now, I found myself in a crisis as his assumption still hadn’t changed.   Banking on my ultimate resort I said: ‘I belong to the Mount Kailash country’. He blinked. For his ignorance, I wanted to take revenge. So, I asked Ram.   Me: Lord Shiva lives on Mount Kailash? Ram: Yes. Me: Mount Kailash is in Tibet? Ram: Yes. Yes. Me: Mount Kailash has been Shiva’s abode for thousands of years? Ram: Yes. Yes. Yes. Me: That makes Lord Shiva a Tibetan? Ram: Hmmm…   I later related this story to a much-entertained audience at Awadh Conclave, the literary festival in Lucknow. And since in the story Ram has lost Shiva to Tibet, I wanted to compensate for the audience. So, I said since His Holiness the Dalai Lama has been living in India for sixty years as a refugee, and also because he has globally championed India’s ancient wisdom and calls himself a son of India, I declared that the Dalai Lama is Indian.   Inspired by Indian freedom fighters like Bhagat Singh and Subhas Chandra Bose, many years ago I went to Tibet to fight China. Alone. After graduating from Loyola College, Madras, I went to Ladakh, the nearest approach to Tibet to track a path to sneak into Tibet. I taught English in a Tibetan refugee school near Leh and later made my route across the Tibet border, on foot. I was twenty-two.   My plans worked only in crossing the Indian border. Once inside I got lost in the cold desert for days, nearly died, and later was arrested by Chinese military police. They interrogated me, beat me up, denied me food and sleep, and threw me in jail.   During those long interrogation sessions, they threatened me with execution by a bullet in the back of the head. The legendary stories of Chinese public executions the elder generation of Tibetans had told us kept flashing through my head. I marked my days on the prison wall with a nail until I lost count. This was the best training I have received in my life.   Today, when I get arrested for protesting against a visiting Chinese president, and when the Indian police try to intimidate me, I tell them to calm down and say that I am steeled by Chinese interrogation and that we might skip the time-pass and focus on working together.   We call ourselves refugees to keep alive our dream to return to our homeland while India calls us foreigners—perhaps a potential leverage against China—though the Constitution of India recognizes us as citizens.   In seventy years, Mao Zedong’s China became an economic superpower but, in the process, killed its own Buddha. Tibet has lost one sixth of its population and almost all its monasteries, but the People’s Republic couldn’t change us in seventy years. Today, Tibet’s Buddhism may be quietly changing China itself.   The struggle for Tibet’s independence is not just a national movement for me, but also a very personal struggle. I have created for myself a personal record; my protest actions sent me to jail sixteen times while speaking tours took me to visit twenty foreign countries. I have always felt rejuvenated and spiritually liberated after each jail episode. I found freedom in jail; I have learned to live with strangers charged with murder, rape, and robbery by sharing food, room, and toilet. I have learned to live with a handkerchief as my towel, finger for toothbrush, shoes as pillow and the shirt to cover myself when I sleep on the floor.   I live an old-world lifestyle; that of a wandering poet. I travel for months touring towns and cities, telling stories and reading poetry. I sell my books, and that pays for my food and travel. Although my income is small, my expenses are even smaller. I live a simple and minimalized, need-based life. I live in two sets of clothes. My friends think I have only one, but in fact I have two. I wear them in turns.   Home is not a house but the purpose that takes us places, and sometimes away from our own home. Reasons to live can make strangers a family, and no country foreign. When we come out of our comfort zone, we learn to make ourselves feel at home anywhere. Stuck at home, with old habits and malice, a house can sometimes turn into a prison. Once, a prince from the land of the Ganges left his family and kingdom in search of higher truths and never returned. He found a key to happiness which, even to this day, is practised as the path to freedom. To many this is home. Tenzin Tsundue Tenzin Tsundue is a Tibetan writer and activist, born and raised in India. His writing has inspired movies and plays, some of which have been anthologized and are being taught in universities in India and abroad. He is one of the most prominent voices and activists for the Independence of Tibet. [1] From the poem ‘How I Lost My Losar’, first published in Tsengol: poems and stories of resistance  (2012).

Ali Ghaderi is a young refugee from Iran. He arrived in the UK five years ago through a family reunification scheme which was available at the time. Ali is proud of being a refugee; as a result, he invests effort into supporting other refugees and asylum-seekers who may have similar experiences to himself. Following his arrival in the UK, Ali took part in countless campaigns for the rights of refugees, often speaking on behalf of his community, and has worked with a number of organisations in the field of refugee and asylum-seekers rights and advocacy. This inspired Ali to found his own organisation, Babylon Migrants Project (Babylon), in October 2022, to support young refugees like himself. The organisation runs arts-based workshops for young refugees and asylum-seekers across London and the UK, with the slogan, ‘Community through Creativity’. In the year since it was founded, Babylon has gone from strength to strength, running twenty independent workshops, and over sixty workshops for external organisations such as the British Red Cross, Safe Passage, and Springboard Youth Academy. Through this, Babylon has reached 600 young people. However, despite the project’s success, and Ali’s personal success as director and founder of his own organisation, Ali’s position in the UK is uncertain. Due to the increasingly hostile nature of the UK’s immigration policy Ali feels insecure, and is concerned for those who participate in his organisation. Nevertheless, Ali does not give up hope. Babylon Migrants Project Ali describes his reasons for opening Babylon as deeply personal, stating: when I arrived in the UK as a teenager, life was hard. I had no friends, and being in a new country with a new language and culture can be very sad and painful. I do not want other young people who arrive in this country to feel the same way I did. I want them to feel welcome and accepted and be a big brother to them. Unsurprisingly, young refugees and asylum-seekers are some of the most vulnerable populations in the UK and are five times more likely to have mental health needs than the British population.[1][2] Following the ethos of ‘Community through Creativity’, Babylon addresses this issue by offering creative workshops, which provide young members from the migrant, refugee, and asylum-seeking communities with a safe and welcoming space to socialise and forge connections. Creative outlets and activities are essential for the development of young refugees and asylum-seekers arriving in the UK, who face a huge amount of hardship, such as insecurity around their asylum claim, learning English, and integrating a new culture and society in the UK. The mental health benefits afforded by the opportunity to participate in creative activities are manifold, including: providing young refugees and asylum seekers with a safe space in which to heal and potentially discover and give voice to a new sense of self;[3] reducing feelings of stress by offering an outlet for communicating and negotiating the difficulties of their new lives, thus reducing risks of further mental health issues, distress, and trauma;[4] and enabling young refugees and asylum seekers to create supportive peer networks and community ties, since creative interventions typically happen in group settings and inherently entail elements of sociality and social synchronicity, reducing loneliness and social isolation.[5][6] The provision of creative spaces for expression and exploration are recommended to policymakers, due to their proven benefits of enabling participants to express experiences and emotions, create social connections, promote agency and empowerment, and improve mental health.[7][8][9] Creative activities also carry some specific benefits for refugee and asylum-seeking young people. For example, it is a highly effective medium to improve English speaking skills and build confidence in communication. This further develops the participants’ ability to team build social connections outside of Babylon and to exercise their agency in a way that can support their transitions through integration in the UK and adulthood.[10] Babylon offers creative workshops every two weeks to around fifteen young refugee and asylum-seeking young people. To ensure that the workshops are accessible to young people with limited funds, all of the workshops are free, including a communal meal at the end of the session, and Babylon reimburses participants for the cost of their travel to the sessions. One of the ways in which we aid our participants’ social development and support their mental health is by enabling participants to express their feelings and voices through the medium of fun. As Ali states, ‘silliness is something very important to me’. Many of the young people we work with at Babylon are in their late teens, experiencing a transition into adulthood that is made more complex and challenging due to their experiences. As a result, it is crucial to provide opportunities for participants to have fun and to be present in the moment. The positive impact of the workshops on the participants is palpable; the atmosphere is always overwhelmingly positive, the sense of community is prominent, and laughs and smiles colour the space. There is a sense of comfort that only an organisation which truly understands the meaning of community can achieve. One participant stated: I am really glad that I have joined the Babylon Project because, before I joined, I was really struggling with my anxiety and depression. I also felt lonely and was not able to express myself and share my thoughts with others. When I joined Babylon, all of this changed because they helped me overcome the difficulties and struggle of being lonely—stress, I would say! I believe Babylon is a very creative project because they run different types of activities that help you develop and network. Since I joined Babylon, I would say that I have improved a lot, especially my communication skills and confidence. Alongside its primary goal of supporting young refugees and asylum-seekers, Babylon also seeks to challenge negative stereotypes about refugees and asylum seekers by building bridges between participants and the British public. Whilst it is important to help people understand that refugees are not scary or threatening, it is also vital that refugees are not simply portrayed as helpless victims, with no agency. Both in scholarship and in practice, refugee and asylum-seeking young people tend to be portrayed as inherently vulnerable, traumatised, and helpless.[11] It is undeniable that, when working with refugee and asylum-seeking groups, it is crucial to take a trauma-informed approach. Many of the participants are simultaneously dealing with the traumas of their past whilst struggling to navigate their present and future, often having to battle the UK asylum system alongside this. However, it is important to remember that these young people are not defined by the struggles they face. They are refugees and asylum-seekers, of course, but they are also young people; as young people, they will be experiencing the joys and challenges that come with most transitions from adolescence into early adulthood. They will also be actively making choices for their present and future, including their career path, navigating relationships, and planning for their future. An excessive focus on the vulnerability of refugee and asylum-seeking young people often limits the acknowledgement of the multiplicity of identities that they inhabit. Whilst Ali had many positive experiences with organisations and NGOs in the UK, some left him with a sense of discomfort. He states: I started to join organisations and charities, and that boosted my energy and my mental health. I did not get good treatment from some organisations. I felt like they just wanted my story as a refugee, for their own profit, and did not really think about me as a human first. It made me feel uncomfortable. I do not want any of my participants to feel the same way. At Babylon, we work towards creating a safe space for our participants in which they can not only be comfortable, but also feel valued as multifaceted individuals. We celebrate our participants’ complexity and uniqueness, focusing on their strengths, passions, rather than on their pasts, or the challenges they face. If any of our participants wish to disclose information about their past or speak about challenges they are facing, we hold a safe space for them to do so. However, we never ask our participants to share their personal stories. As Ali often reminds people: ‘Yes, I am a refugee. But I am a human being first’. The Rwanda policy Describing the sessions run by Babylon paints a beautiful picture of community, laughter and integration for young refugees and asylum-seekers. Unfortunately, this does not reflect their lived reality. For years, the UK’s immigration system has been becoming increasingly aggressive; the government discourse focuses on preventing traffickers from exploiting vulnerable people who are seeking safety and on taking back control over migration flows in the UK. In April 2022, Boris Johnson announced the ‘UK and Rwanda Migration and Economic Development Partnership’ (the Rwanda policy), with the ultimate goal of ‘fixing’ the UK’s immigration system.[12][13] According to the UK Home Office, the plan was designed to disincentive asylum-seekers from embarking on dangerous journeys to England, particularly in small boats crossing the English Channel.[14] The plan was to offshore the asylum process to Rwanda by sending asylum- seekers to Rwanda to have their claims processed. Should their claim be found valid, they would receive refugee status in Rwanda. If not, they could be sent home, or to a third-country if they have the right of residence in that country. Under the deal, the UK pledged a £120 million investment into Rwanda’s economic development and promised that the majority of people being sent over would be single men who would be able to contribute to the Rwandan economy.[15] This plan was flawed from the start. In 2017, Israel cut a similar deal with Rwanda and deported around 4000 refugees there, predominantly from Sudan and Eritrea.[16] However, most of them found that they were unable to properly settle in Rwanda, reporting that they had no future in a country that was still rebuilding itself, spending their days with ‘nothing to do’.[17] Most of the refugees left Rwanda promptly, and Israel stopped the scheme.[18] Many asylum-seekers choose to travel to the UK because of linguistic, cultural, and family ties, and therefore would have no interest in settling in Rwanda. This clear evidence of the lack of functionality of the Rwanda scheme has been ignored by the UK government thus far. Despite the UK government’s supposed goal of protecting the economy and preventing traffickers from exploiting vulnerable people, the plan is ‘inhumane, expensive, and counterproductive’, potentially creating a more lucrative business for traffickers, who would have a new market in assisting people to escape Rwanda.[19] The problem with the scheme lies not only within the difficulty of its implementation, but also because it is an affront to the human rights of refugees. This ‘responsibility-shifting’ approach violates the principle of non-refoulement, one of the foundational premises of international refugee protection.[20] Further to this, UNHCR criticised the plan because Rwanda’s asylum system does not meet the sufficient guarantees necessary to ensure the safety of the asylum-seekers arriving there, including the denial of asylum-seekers’ right to choose where they settle.[21] Ali has been extremely active in fighting this policy. In January 2023, Ali drove his message directly to Westminster on an open-top bus, alongside Together with Refugees. Following this, Ali, alongside Together with Refugees, spoke with 15 MPs, to discuss the cruelness and inhumaneness of the scheme.[22] Ali comments that solidarity from MPs was really important, and that he felt listened to and supported during his day in Parliament. As of November 2023, the Supreme Court in the UK has ruled the Rwanda policy unlawful, and thus unimplementable in its current form. This has not, however, dissuaded Rishi Sunak, who has stated that the government would continue to work towards sending asylum-seekers to Rwanda, and is prepared to change UK laws to achieve this goal if necessary.[23] The Illegal Migration Act A year later however, another grotesque affront to the UK’s immigration system was proposed. In March 2023, Suella Braverman introduced the Illegal Migration Act (the Act), which passed through Parliament at lightning speed. The Act essentially eliminates access to the asylum-seeking system for anyone who arrives in the UK ‘irregularly’ (ie, without using formal resettlement routes.[24][25] The Act came into force on 20 July 2023. This new law makes it impossible to arrive in the UK before claiming and receiving asylum, regardless of individual circumstances, putting asylum-seekers at heightened risk of detention and destitution. The Act seriously threatens asylum-seeking children in particular for the following reasons: firstly, they will also lose their ability to claim asylum and settle in the UK. Whilst they will be safeguarded while they are minors, the moment they turn 18 they will face expulsion and have no recourse to public help;[26] and secondly, the Act makes Age Assessment mandatory through ‘scientific’ methods such as radiation. Any person who refuses to comply will be treated as an adult, thus facing immediate detention and removal.[27] It is still unclear exactly how this policy will work in practice, as the UK does not have arrangements with third countries in place to facilitate deportation, but it is likely that many vulnerable young people will face homelessness, trafficking, and destitution as a result. Life in the UK After being vocal about this issue on his twitter, Ali was attacked with anti-immigration sentiments. The comments ranged from people accusing Ali of wanting ‘illegal immigrants’ to ‘invade’ the UK, to personal attacks telling him he deserves to be deported. Ali states that bearing the brunt of anti-immigration sentiments in the UK made him feel ‘heart-broken’. Aside from the racist comments he received, Ali also faces the challenge of still not feeling settled in the UK, despite being here for five years. As a result of his complicated journey to the UK he faces many physical and mental health struggles which he is unable to get proper support for. His financial situation is also strained and he faces the stress of trying to secure a steady flow of income, after juggling the need to learn English and build his network and CV before he was able to find himself a suitable job. Ali also fears losing his accommodation, particularly in the face of a cost of living crisis coupled with the reluctance of property owners to rent to refugees. Having been close to homelessness several times in the last few years, Ali has not yet found a place he truly feels at home. The current anti-immigration policies that the UK government is pushing make Ali feel all the more insecure about his own safety and the safety of the Babylon participants. He states: I felt welcomed when I arrived in London, especially by the British public, but that is not the case any more. I do not have a feeling of security. The government is releasing news and laws about refugees and asylum-seekers so often; I am scared that one day that it will affect me as well. We do our best, and we do as much as we can, but we cannot support everyone. Most of the Babylon staff team are volunteers, so I cannot expect too much. I’m so proud of my amazing team, but I wish I would be able to pay them, because I know they would be able to give so much more. It is still unclear what the future holds for our participants. Although the Act is not being implemented currently (due to the lack of agreements with third countries for removal) this does not mean that the government will not find a way to implement it anyway. At Babylon, we are worried that the Home Office will simply cancel asylum claims and leave people undocumented on the streets of Britain, potentially making many of our participants unsafe. We are concerned that we will slowly be dealing with an increasing number of undocumented, homeless, young people, who have no access to public recourse, and are therefore at a heightened risk of trafficking, grooming and abuse. If this were to happen, it is still unclear to us how we will move forward. Will it be useful for us to be delivering creative workshops for young people living on the streets? However, despite all the hardships, Ali keeps a positive attitude. He firmly believes that public attitude and discourse can be changed. Ali consistently advocates for challenging those who have negative attitudes towards refugees. He believes that ‘instead of ignoring those people, and calling them racist or whatever, we should try and make them our allies’. Ali finds motivation in the challenge, stating that, ‘although people’s negative views hurt me, they also give me motivation to fight better and with more knowledge. I think if we want to win this fight, we need more allies, we need to bring people together, both those who support us and those who see us as enemies’. Challenging the stereotypes Refugees have made a huge social, economic, and social contribution to the UK for the last 460 years.[28] Some notable examples include Sir Mo Farah, Freddie Mercury, and even Albert Einstein.[29] Refugees contribute to the fabric of UK society in a way that is extremely worthwhile, through their unique gifts, talents, courage, and resilience.[30] Ali’s goal is to focus on the positive contributions migrants and refugees make in the UK, and Babylon is part of his strategy to do so. Over the next few months, Babylon will launch several programs aiming to fight negative stereotypes of refugees and asylum seekers. We are currently working on two plays, one professional and the other participatory, to show-case the many creative talents of our participants, as well as challenge the negative narratives that they face. We will also be creating a series of workshops around the asylum-system and the lived reality of young refugees and asylum-seekers, to be delivered to schools across the UK. Through this program, we hope to encourage and foster a sense of compassion and solidarity in the minds of young students in the UK, so they may better understand the lived experiences of refugees, and perhaps even become allies to the refugee cause. Ali calls for a renewed sense of solidarity towards refugees and asylum-seekers. He feels that the government’s current stance on immigration is not only inhumane, but is also a huge loss to the UK. Migrants, refugees, and asylum-seekers are a huge part of the rich social fabric of the UK. They bring with them culture, food, skills, and ideas that the UK can only benefit from. Ali hopes that this can be recognised, and that more safe, legal routes can be created, so that people who need to escape their homes to build a new one do not only settle in the UK, but also continue to contribute to making it a multicultural, open, prosperous, and welcoming place. Ali’s journey towards a secure life in the UK has been, and continues to be, a struggle. Living in a country which does not seem to want to include you in its fabric would be a struggle for even the most brazen of us. However, despite all the personal, social, and political challenges that he faces, Ali continues to fight, and to remain hopeful. The tides of change may be coming. Recently, the Supreme Court ruled that the Rwanda policy is unlawful, indicating that there are still countless people in Britain who value the safety and the right to protection of refugees and asylum-seekers arriving in the UK. Although the battle is not yet won, we hope that this ruling will start to pave the way back towards a more compassionate asylum system. Ali dreams of a Britain where all people are accepted, their contributions are acknowledged, and safe routes for those in need are created. One where British people, migrants, asylum-seekers, and refugees all live alongside each other, contributing to the country’s cultural heritage and celebrated as a truly United Kingdom for all. If, despite all he faces, Ali can remain positive, then is it not our responsibility to make sure we too keep fighting for the rights, security, and (ultimately) the happiness of young people like himself? Lerato Islam and Ali Ghaderi Lerato Islam is Programmes and Strategy Lead at Babylon Migrants Project. She is an Applied Theatre Practitioner, specializing in providing psychosocial and linguistic support through Drama, who principally works with cohorts of teenage refugee and asylum seekers. Ali Ghaderi is the Founder and Director of Babylon Migrants Project, an organisation run by and for refugees, asylum seekers, and migrants, engaged in creative workshops such as theatre, film making, art, storytelling and community. He is also an actor, activist, and facilitator. [1] The Childhood Trust, ‘A Place Called Home—Refugee Children in London’ ( Youtube, 17 April 2023) < https://www.youtube.com/watch?v=OcZujXeU2iE > accessed 11 December 2023. [2] Refugee Council, ‘Identity Crisis: How the age dispute process puts refugee children at risk’ ( Refugee Council, September 2022) < https://www.refugeecouncil.org.uk/information/resources/identity-crisis/#:~:text=Identity%20Crisis%3B%20how%20the%20age,be%20children%2C%20following%20our%20intervention > accessed 11 December 2023. [3] Zahra Akthar and Andrew Lovell, ‘Art therapy with refugee children: A qualitative study explored through the lens of art therapists and their experiences’ (2018) 24(3) International Journal of Art Therapy 139, 139-148. [4] A Dubs, K Hay, and C Jones, ‘Mental health and child refugees’ (2022) 34(6) International Review of Psychiatry 596, 596-603. [5] ibid. [6] Kathryn Marsh, ‘Creating bridges: music, play and well-being in the lives of refugee and immigrant children and young people’ (2016) 19(1) Music Education Research 60, 60-73. [7] The Baring Foundation, ‘Creatively Minded and Refugees’ ( The Baring Foundation, 20 June 2023) < https://baringfoundation.org.uk/resource/creatively-minded-and-refugees/ > accessed 11 December 2023. [8] Elizabeth Yarrow, ‘A Refugee and then...Participatory Assessment of the Reception and Early Integration of Unaccompanied Refugee Children in the UK’ ( The UN Refugee Agency, June 2019) <  https://www.unhcr.org/uk/sites/uk/files/legacy-pdf/5d271c6a4.pdf > accessed 11 December 2023. [9] Akthar and Lovell (n 3). [10] Geraldene Codina and Judith Szenasi ‘Educational provision for newly arrived unaccompanied sanctuary seekers aged 15–16’ (2022) International Journal of Inclusive Education 1, 1–18. [11] Donna Gaywood, Tony Bertram, and Chris Pascal ‘Involving refugee children in research: emerging ethical and positioning issues’ (2020) 28(1) European Early Childhood Education Research Journal 149, 149-162. [12] William Booth, ‘Britain to fly asylum seekers to Rwanda to cut illegal sea crossings’ The Washington Post (Washington DC, 14 April 2022) < https://www.washingtonpost.com/world/2022/04/14/boris-johnson-asylum-rwanda-illegal-migrants/ > accessed 11 December 2023. [13] Ikaba Koyi, ‘Analysis: Rwanda-UK asylum deal may cause regional refugee crisis’ Al Jazeera (14 June 2022) < https://www.aljazeera.com/features/2022/6/14/analysis-rwanda-uk-asylum-deal-may-cause-regional-refuge-crisis > accessed 11 December 2023. [14] BBC News, ‘What was the UK’s plan to send asylum seekers to Rwanda?’ ( BBC News , 11 December 2023) < https://www.bbc.com/news/explainers-61782866 > accessed 11 December 2023. [15] Zuhal Demirvci, ‘UK establishing its own ‘Guantanamo’ by sending asylum seekers to Rwanda’ ( Anadolu Ajansi , 15 April 2022) < https://www.aa.com.tr/en/africa/uk-establishing-its-own-guantanamo-by-sending-asylum-seekers-to-rwanda/2564551#:~:text=UK's%20policy%20to%20send%20asylum,for%20being%20'irresponsible%20and%20inhumane'&text=The%20UK%20is%20receiving%20harsh,smuggling%20across%20the%20English%20Channel > accessed 11 December 2023. [16] Christiano d’Orsi, ‘Outsourcing asylum seekers: the case of Rwanda and the UK’. The Conversation (14 April 2022) < https://theconversation.com/outsourcing-asylum-seekers-the-case-of-rwanda-and-the-uk-180973 > accessed 11 December 2023. [17] Cristina Krippahl, ‘Rwanda vows to resettle UK asylum-seekers despite criticism’ ( InfoMigrants , 15 June 2022) < https://www.infomigrants.net/ar/post/41209/rwanda-vows-to-resettle-uk-asylumseekers-despite-criticism > accessed 11 December 2023. [18] D’Orsi (n 16) [19] Tim Farron, ‘UK’s Rwanda asylum plans are shallow, expensive, and counterproductive’ ( Politics.co.uk , 13 June 2022) < https://www.politics.co.uk/mp-comment/2022/06/13/uks-rwanda-asylum-plans-are-shallow-expensive-and-counterproductive/ > accessed 11 December 2023. [20] Sonia Morano-Foadi and Micaela Malena, ‘Rethinking access to asylum: Border-shifting, burdenshifting, and externalisation of international protection in the light of the UK-Rwanda arrangement’ in Kahina Le Louvier and Karen Latricia Hough (eds), UK Borderscapes: Sites of Enforcement and Resistance  (Routledge 2024) 66–80. [21] Michael Collyer and Uttara Shahani, ‘Offshoring Refugees: Colonial Echoes of the UK-Rwanda Migration and Economic Development Partnership’ (2023) 12(8) Social Sciences, MDPI 1, 1-17. [22] Together with Refugees, ‘Refugee activist Ali Ghaderi on his day at Parliament’ ( Together with Refugees , 2023) https://togetherwithrefugees.org.uk/refugee-activist-ali-ghaderi-on-his-day-at-parliament/  accessed 11 December 2023. [23] Dominic Casciani and Sean Seddon, ‘Supreme Court rules Rwanda asylum policy unlawful’ ( BBC News , 15 November 2023) < https://www.bbc.com/news/uk-67423745 > accessed 11 December 2023. [24] Home Office, ‘Illegal Migration Bill: overarching factsheet’ ( Gov.uk , 20 July 2023) < https://www.gov.uk/government/publications/illegal-migration-bill-factsheets/illegal-migration-bill-overarching-factsheet#key-facts > accessed 11 December 2023. [25] UN News,   ‘UK Bill ‘significantly erodes’ human rights and refugee protections, UN agencies warn’ ( UN News , 18 July 2023) < https://news.un.org/en/story/2023/07/1138812#:~:text=The%20Bill%20denies%20access%20to,trafficking%20or%20modern%2Dday%20slavery > accessed 11 December 2023. [26] Patrick Butler, ‘UK’s migration bill could put thousands of children ‘into arms of criminals’’ Guardian (London, 24 March 2023) < https://www.theguardian.com/society/2023/mar/24/uk-migration-bill-could-thousands-children-arms-criminals > accessed 11 December 2023. [27 Home Office (n 24) [28] D’Orsi (n 16) [29] Siva Thangarajah, ‘Famous UK refugees from footballers to pop stars’ ( imix , 4 June 2021) < https://imix.org.uk/uk-famous-refugees-celebrity-history/ > accessed 11 December 2023. [30] Summer Goodkind, ‘Lily Cole: Government’s Rwanda asylum plan ‘like something in a dystopian film’’ Independent (London, 20 April 2022) < https://www.independent.co.uk/news/uk/juliet-stevenson-lily-cole-rwanda-mps-government-b2061548.html > accessed 11 December 2023.

I. Introduction 2014 was the beginning of a turbulent but crucial journey for the Ukrainian identity to gain a foothold. In February of that year, parallel to the unfolding of the Euromaidan,[1] five Ukrainian museums lent invaluable historical treasures known as the ‘Crimean Gold’—a collection of over 500 objects—[2]to the Allard Pierson Museum in Amsterdam (‘AP Museum’) as part of a touring exhibition titled ‘Crimea: The Golden Island in the Black Sea’.[3] The uniqueness of this exhibition attracted more than 100,000 visitors.[4] However, soon after the collection was put on display in March 2014, Crimea was annexed by the Russian Federation.[5] While 19 objects were returned to the National Museum of the History of Ukraine in Kyiv,[6] the remaining objects became the subject of a dispute between the State of Ukraine, four museums in the annexed Crimea (the ‘Crimean Museums’), and the AP Museum. The question for the AP Museum was whom the collection should be returned to—was it the State of Ukraine, to whose Museum Fund these artifacts belong, or the Crimean Museums, which lent them?[7] The answer to this question would determine whether the Crimean Gold is part of Ukrainian heritage. And with the start of the full-scale invasion of Ukraine by Russian Federation on 24 February 2022, the question of preservation of the Ukrainian heritage gained even more importance. II. Crimean Gold—Ukrainian Heritage? In pursuit of answers, the Crimean Museums initiated a legal action against the AP Museum on 19 November 2014 in the Netherlands,[8] to which Ukraine has been involved as an intervening party.[9] In determining whom the Crimean Gold should be returned to, the District Court of Amsterdam (‘Court’) evaluated whether (i) there has been an illicit transfer of the artifacts; (ii) if yes, who has the right to claim their return, and therefore to whose heritage it belongs. In doing so, the Court applied the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (‘1970 UNESCO Convention’),[10] which was implemented in the 2016 Dutch Heritage Act and used the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (‘1995 UNIDROIT Convention’) as an ‘inspiration’ for interpreting the legal standards used broadly.[11] First, for the artifacts to be claimed for return, the fact of their illicit transfer from the country of origin should be established. Here, the Court used the 1995 UNIDROIT Convention to broaden the provisions in the 1970 UNESCO Convention applied.[12] Some of the named principles support the notion that the lex originis of the artifact is key to determine the lawfulness of a transfer.[13] This means that the illicitness of the transfer shall be resolved by the law of the State of origin of the cultural object.[14] In Ukraine, as the State originis, under Article 23 of the Law on Export, Import, and Restitution of Cultural Objects (‘Ukrainian Law on Cultural Objects’), for the transfer to be illicit, the latter should not have been returned to the territory of the requesting State at the time prescribed by the loan agreement.[15] Although this provision requires the transfer, ie the export or import, of the cultural objects to be illicit, the Court interpreted this rule broadly, following the 1995 UNIDROIT Convention approach,[16] to also include the case of non-return of the objects.[17] In this case, the loan agreements obliged the AP Museum to return the Crimean Gold to the five Ukrainian museums by September 2014. Having returned some to the National Museum of History of Ukraine, the retention of the Crimean Gold from four Crimean Museums beyond the return date was considered to be illicit.[18] Second, having established an illicit retention, the Court continued by turning to the 2016 Dutch Heritage Act, which in Article 6.7 provides that return may be claimed either by   ‘the State Party from which the property originates or by the party with a valid title to such property’.[19] This provision therefore allows, alongside States, also non-State deprived owners to claim return of the artifacts,[20] meaning that both Ukraine and the Crimean Museums could bring the return claim. This broad approach also arises out of the 1995 UNIDROIT Convention.[21] Nevertheless, while both Ukraine and the Crimean Museums could bring the return claim, the question now was whose claim would succeed: whose cultural heritage did the artifacts belong to? The Court was not convinced by the Crimean Museums’ arguments that the Crimean Gold had stronger cultural-historical links to Crimea as a physical place and should therefore be returned to its ‘true home’.[22] Instead, the Court sided with Ukraine, which claimed return of the Crimean Gold as objects of national patrimony and state property based on Ukrainian law, which designates the artifacts of the Crimean Museums as such.[23] Such national patrimony establishes a ‘genuine link’ from a cultural-historical perspective,[24] and therefore overrides the ‘operational management’ of the Crimean Museums over the Crimean Gold under the loan agreements. And here, the annexation of Crimea is irrelevant to the legal status of the named Ukrainian-registered cultural objects,[25] as Ukraine had transferred the named ‘operational management’ over Crimea-based cultural objects to the National Historical Museum of Ukraine shortly after the annexation.[26] Crimea—or the Autonomous Republic of Crimea as provided in the Constitution of Ukraine—has been part of independent Ukraine since 1991.[27] Although Crimea enjoys some autonomy in administering its historical objects,[28] the Court held that, in case of concurring claims between a State and a non-State party, the claim of the State which protects the artifacts as national patrimony will prevail.[29] At the same time, the Court refrained from ruling on the question of ownership over the Crimean Gold relying on Article 1012 of the Dutch Code of Civil Procedure, which states that ‘ownership of the cultural object that is subject to a return request by a State Party will be decided upon after return by the national laws of the state that claimed for its return’,[30] ie after the objects return to Ukraine in accordance with its laws. Nevertheless, the Court held that the Crimean Gold is indeed Ukrainian heritage. This made Ukraine one step closer to restoring and maintaining its sustainable preserving of the artifacts. However, not satisfied with the decision of the Court, the Crimean Museums lodged an appeal with hopes of having the ruling overturned. In its grievance, the Crimean Museums restated that the Crimean Gold had no links to Ukraine, but rather to the Crimean Peninsula and therefore should be returned to the latter. The Court of Appeal, faced with this intricate issue before it, came to a decision after more than two years of consideration. It ultimately upheld the Court’s assessment: the Crimean Gold shall be returned to Ukraine.[31] However, in coming to its decision, the Court of Appeal pointed out several ‘buts’. A. The first ‘but’: there has been no illicit retention of the Crimean Gold by the AP Museum While Ukraine had based its claim on Article 6.7 of the 2016 Dutch Heritage Act, as discussed above, in their appeal, the Crimean Museums focused their claims on Article 6.3 of the same act. They argued that the retention of the Crimean Gold by the AP Museum beyond the term prescribed in the loan agreements resulted in an illicit export of the Crimean Gold in the sense of Article 6.3.[32]  Here, Article 6.3 of the 2016 Dutch Heritage Act provides that: It is prohibited to bring into the Netherlands cultural property that: a. has been taken outside the territory [1] of a Contracting State in violation of the provisions adopted by that Contracting State in accordance with the objectives of the 1970 UNESCO Convention with regard to the export [2] of cultural property from that State Party or with regard to the transfer of ownership of cultural property; or b. has been stolen from a contracting state.[33] The Court of Appeal began the evaluation of the Crimean Museums’ claim by right away establishing that Article 6.3(b) is not relevant as there has been no theft of cultural property.[34] While Article 6.3(a), in the parts relevant to the factual pattern of the dispute, provides for two issues which the Court of Appeal had put a finger on. First, the judges established that at the time the Crimean Gold was initially ‘taken outside the territory’ of Ukraine, such taking outside the territory was legal and there had been no violation in the meaning of the 1970 UNESCO Convention (the language of which, inter alia, Article 6.3 adopted). The Court of Appeal specifically mentioned that the Crimean Gold had quite a journey from Ukraine to Germany and finally to the Netherlands in accordance with the validly executed export licenses issued by the Ministry of Culture of Ukraine.[35] For these reasons, the initial ‘tak[ing] outside the territory’ of Ukraine lacked any breaches. And second, the question for the judges to resolve therefore orbited around the following issue: whether the term ‘export’ in Article 6.3(a) should be interpreted broadly as to include the retention of the cultural property beyond the term enshrined in the loan agreements. If yes, whether such retention is legal or would otherwise result in an ‘illicit export’, as the Crimean Museums suggest. To recall, the District Court had engaged in an interpretation of the same matter by reverting to the broad approach found in the 1995 UNIDROIT Convention and therefore coming to a positive answer to this question. On the appeal stage, however, the judges considered this instrument irrelevant and not applicable.[36] For this reason, the Court of Appeal relied on the 1970 UNESCO Convention, in particular its object and purpose, preamble,[37] and Articles 2(1), 3 and 6(b) in establishing the scope of the term ‘export’.[38] After looking at these provisions, the judges concluded that the 1970 UNESCO Convention was meant to give the terms ‘export’ (and ‘import’) nothing more than their ordinary meaning. Therefore, this instrument only addresses situations in which illicit acts are committed at the time when the cultural property is transferred from one country to another, and this does not include cases when illicit acts occur if the cultural property remains in the other country longer than permitted.[39] The retention of the Crimean Gold by the AP Museum was therefore legal,[40] and as such, contrary to the flawed belief of the Crimean Museums, cannot be regarded as an ‘illicit export’. At the end of the day, as the Court of Appeal underlined, the reason why the AP Museum retained the Crimean Gold was not because it wished ‘to embezzle the Crimean [Gold]’ or engage in ‘other illicit practices’,[41] but simply because Ukraine is against its cultural heritage being returned to the illegally occupied Crimean Peninsula (effectively controlled by the Russian Federation). Although the judges did comment that ‘handing over the museum pieces to the Crimean Museums would in no way imply recognition of the secession of Crimea from Ukraine and its affiliation with the Russian Federation’.[42]  B. The second ‘but’: in any case, the 2016 Dutch Heritage Act and the Ukrainian Law on Cultural Objects do not apply Despite all the evaluation of Articles 6.7 and 6.3 of the 2016 Dutch Heritage Act, the Court of Appeal held that this instrument was not applicable in the case at hand. The simple reason being that there had been no cause of action able to ‘activate’ these provisions. In particular, as discussed above, Article 6.7 enshrined the right of the State originis as the claiming party, while Article 6.3 enlisted grounds entitling such a claiming party for the establishment of an illicit activity over cultural property. Neither provision applied individually because they were designed to work in tandem. While in practice, the Crimean Museums, seeing the disadvantage for its position had it relied on Article 6.7, and same as Ukraine, seeing the disadvantage for its position had it relied on Article 6.3, both avoided mentioning the two provisions together. This was picked up by the Court of Appeal, which ultimately concluded that since the Crimean Gold was ‘taken outside the territory’ of Ukraine legally, and since the resulting retention by the AP Museum was legal, neither article was applicable.[43] In a similar manner, contrary to the decision of the District Court, which evaluated Article 1012 of the Dutch Code of Civil Procedure, providing that ‘ownership of the cultural object that is subject to a return request by a State Party will be decided upon after return by the national laws of the state that claimed for its return’, the Court of Appeal held that this provision is only applicable to claims based on Article 6.7 of the 2016 Dutch Heritage Act. And since such a claim failed, as shown above, there can be no application of Article 1012 of the Dutch Code of Civil Procedure, and in turn, the Ukrainian Law on Cultural Objects, which it would trigger.[44] C. So, what did  apply? Now, the question arises: what did the Court of Appeal apply in coming to its decision? In essence, the Court of Appeal ruled on the cultural heritage issue based on the evaluation of the ‘[r]ights to the museum exhibits of a proprietary nature (and restrictions thereon under Ukrainian Law)’.[45] The parties did not object to the Crimean Gold belonging to the Ukrainian Museum Fund and being governed by the Law of Ukraine on Museums.[46] The Court of Appeal therefore evaluated the following Ukrainian Laws. First, the Law of Ukraine on Museums. It was enacted in 1995 and is designed to preserve Ukrainian cultural heritage and provides for limitations as to the exercise of the rights over cultural property.[47] In this vein, the Court of Appeal noted the steps that Ukraine had taken to safeguard its cultural property, namely: On 20 July 2000, the Cabinet of Ministers of Ukraine, on the basis of the Law of Ukraine on Museums, had introduced a Regulation on the Museum Fund of Ukraine (‘Regulation’), with provisions relating to, inter alia, alienation of cultural objects.[48]  On 23 March 2014, soon after the unfolding of the Euromaidan, the Regulation was supplemented by Article 41.1 which authorised the Minister of Culture of Ukraine to make decisions with regards to the cultural property which became subject to a force majeure situation (risk of destruction, loss, or damage). On 13 May 2014, such a decision was indeed made by the Minister of Culture of Ukraine, by results of which it was decided that cultural property subject to force majeure were to be temporarily transferred to the National Museum of History of Ukraine in Kyiv.[49]  And second, the Court of Appeal looked at Article 13 of the Constitution of Ukraine and Article 18 of the Law of Ukraine on Protection of Archaeological Heritage, which both establish Ukrainian cultural property as part of the Museum Fund of Ukraine.[50] As a result of these laws and regulations, Ukraine argued that the Autonomous Republic of Crimea could not be considered as the rightful ‘owner’ of the Crimean Gold. Although the Autonomous Republic of Crimea does exercise some autonomy in managing the museum artefacts, as discussed above, at best, as Ukraine argued, the prior could be the owner of the buildings where its museums were located, and not its contents.[51] The Crimean Museums, not satisfied with the Regulation and the decision of the Minister of Culture of Ukraine above, objected in the court proceedings that a force majeure situation had indeed occurred,[52] and in essence that (i) the Ukrainian Laws above are not relevant since the Crimean Museums held the ‘operational management’ over the Crimean Gold under the loan agreements; and again, (ii) simply because the Crimean Gold has direct links to the Crimean Peninsula, in contrast to Ukraine. Based on the evaluation of the above, the Court of Appeal first and foremost underscored that it will not be deciding on the matters of ownership, similar to the position of the District Court, as it is not decisive in the matter.[53] Nevertheless, it did hold that although the Crimean Gold did originate from Crimea and can be regarded as Crimean heritage, it is still cultural heritage of Ukraine. This is so because Ukraine has existed as an independent State since 1991.[54] And because of this, Ukraine has an overriding interest in preserving the artefacts. It had not only safeguarded its interest by enacting the Law of Ukraine on Museums, but also by continuously created a regime of protection of its cultural heritage (including the Regulation).[55] The Court of Appeal was therefore convinced that Ukraine’s interest in preserving its national patrimony shall be given a priority over any private right.[56] This approach has also been recently upheld by the Supreme Court of the Netherlands on 9 July 2023.[57] III. Crimean Gold—Ukrainian Heritage! As the Court, the Court of Appeal and the Supreme Court all determined the Crimean Gold as part of Ukrainian heritage, the fact of it being in dispute in the first place interrupted the sustainable development of the culture of Ukraine. From 2014 to the decision of the Supreme Court, the Crimean Gold remained stored in the AP Museum. Given the geopolitical tensions between Ukraine and the Russian Federation in Crimea which started in 2014, and now in the conditions of a full-scale war started by the Russian Federation, the Crimean Gold was made a ‘hostage of geopolitics’ for more than eight years. This, in turn, has impacted Ukraine’s ability to protect and safeguard its cultural heritage, which has a historical, social, and anthropological value,[58] and is an enabler of sustainable development of the country.[59] The very concept of sustainable development ‘would mean achieving a state of…economic, and social improvement that could be reasonably maintained indefinitely’[60] and ‘would not slow down’.[61] For Ukraine, this development has been impacted since the commencement of the litigation over the Crimean Gold: ‘indefinite’ maintenance was in question and the development had in fact ‘slowed down’. It is crucial, as ‘cultural heritage plays a marginal role’ in contributing ‘significantly to the sustainable development’ of a State .[62] In view of its significance, in September 2015, cultural heritage has been included in the United Nations’ Sustainable Development Goals (‘SDG’) being a universal agenda which seeks to strengthen the social, economic, and environmental dimensions of sustainability by 2030.[63] Ukraine, alongside 192 other States, has committed to the 17 SDGs, which although do not identify cultural heritage as a separate goal, integrated it into SDG 11.4. This goal relevantly calls for strengthening efforts to protect cultural and historical heritage.[64] It is crucial because ‘you cannot build a society purely on interests, you need a sense of belonging’—a phrase once said by Valéry Giscard d’Estaing, a former president of France, which greatly describes the essence of SDG 11.4. This target specifically addresses cultural heritage. It calls to ‘strengthen efforts to protect and safeguard the world’s cultural and natural heritage’.[65] The UNESCO World Heritage and Sustainable Development Programme, among other benefits of successful preserving of cultural heritage, depicts that heritage related activities help people recover a sense of continuity.[66] It further underscores that it cultivates ‘a sense of belonging’,[67] and defines its citizens’ shared identity.[68] Notably, when it comes to the Crimean Peninsula, where the Crimean Gold was excavated, it is very rich in archaeological sites called ‘kurgans’, burial mounds carrying weapons, dishes, statues, and many more items of Scythians, Greeks, and Goths.[69] Exactly these kurgans held the secrets of Scythians, ancient nomadic people who resided in the coastal areas of the Black Sea and Crimea in 900-100 BC.[70] Kyivan Rus’, which had centuries thereafter emerged in the territory of Ukraine, including the Crimean Peninsula, considered itself a successor of Scythians.[71] Now, almost 1,100 years after the emerging of Kyivan Rus’, modern independent Ukraine is preserving the archaeological treasures excavated in Crimea under its sovereignty and part of its long-lasting identity. Although the litigation over the Crimean Gold endangered its prompt return to Ukraine, as well as because soon after the above proceedings commenced, the Russian Federation enforced a law including the Crimean Gold in its national artefacts’ registry,[72] the success of Ukraine in the dispute is an important step towards restoring its heritage and bringing it where it belongs. For instance, similar circumstance had occurred in relation to a fourteenth-century bronze Buddha statue stolen from a Kannon Temple in Tsushima Island in October 2012.[73] Here, South Korea had initiated proceedings in the Daejon District Court, where it was similarly tasked to decide where the statue should be returned to: Japan, who kept the stolen statue; or South Korea, whose heritage it was part of. The Daejon District Court ultimately decided that the statue should be returned to a South Korean Buddhist Buseok Temple, noting that the statue contained ancient scripts describing its origin (South Korean), which the Daejon District Court linked to the invasion of South Korea by Japan in the fourteenth century.[74] By doing so, the Daejon District Court respected the strong cultural-historical link of the statue to the country of its origin, relying on the 1970 UNESCO Convention, regardless of the statue being stolen during the invasion of South Korea. Although the case with respect to the Crimean Gold does not consider larceny, the essence of this ruling denotes the weight which the State originis   has in relation to its cultural heritage—a principle which originated from the 1995 UNIDROIT Convention.[75] Precisely the same is observed in the case of the Crimean Gold. Returning it to Ukraine would restore its heritage for the future generations and preserve people’s sense of belonging. IV. Conclusion ‘A people without knowledge of their past history, origin and culture is like a tree without roots’, as Marcus Garvey, a Jamaican-born African American politician, once famously said. Similarly, not having access to one’s heritage endangers its future. In this case, the Court, the Court of Appeal, and the Supreme Court, although using different approaches to evaluate the matter, all came to the same conclusion: the Crimean Gold is an inherent part of Ukrainian heritage and shall therefore be returned to Ukraine. Thus, the Crimean Gold has found its long way back home and with its return Ukraine can begin to restore the ‘roots’ of its tree of heritage. Leila Kazimi Leila Kazimi is a Ukrainian dispute resolution lawyer specialising in international commercial and investment arbitration. [1] Rudolf Kasinec and Marián Šuška, ‘Case of the Crimean Treasures—to Whom Should the Treasures be Returned?’ (2020) 62 Scientific Journal of the Uzhhorod National University 16. [2] Lyudmila Strokova, ‘Crimea. Golden Island in the Black Sea. Chronicle of the struggle for the “Scythian gold” of Ukraine’ ( The Voice of Crimea , 6 July 2020) < https://culture.voicecrimea.com.ua/en/crimea-golden-island-in-the-black-sea-chronicle-of-the-struggle-for-the-scythian-gold-of-ukraine/ > accessed 10 March 2024. The five museums are (one in Kyiv and four in Crimea): The National Museum of History of Ukraine (Kyiv), the Central Museum of Tavrida (Simferopol), the Kerch Historical and Cultural Preserve (Kerch), the Bakhchisaray History and Culture State Preserve of the Republic of Crimea (Bakhchisaray), and the National Preserve of Tauric Chersonesos (Sevastopol). See Amsterdam District Court, Case No. HA ZA 14-1179 ECLI:NL:RBAMS:2016:8264, 14 December 2016. These artefacts are also referred to as ‘Scythian Gold’, though more commonly as ‘Crimean Gold’ given the multicultural origin of the gold objects which are not only Scythian. See Evelien Campfens and Irina Tarsis, ‘Cri-Me-A-River! Crimean Gold in the Crosshairs of Geopolitics’ (2017) 18(1) International Foundation for Art Research Journal 36, n 3. [3] The exhibition was displayed in two international museums—in Bonn, Germany from 3 July 2013-19 January 2014 (Rheinisches Landesmuseum Bonn, ‘Bonn Museum’) and in Amsterdam, the Netherlands from 6 February 2014-31 August 2014 (Allard Pierson Museum, ‘AP Museum’). See Amsterdam District Court (n 2) [2.1]. See also Strakova (n 2); Campfens and Tarsis (n 2) 40. [4] Strakova (n 2). [5] Gert-Jan van den Bergh, Martha Visser, and Auke van Hoek, ‘Netherlands’ in Lawrence M Kaye and Howard N Spiegler (eds), The Art Law Review  (Law Business Research Ltd 2022) 244-62. [6] Amsterdam District Court (n 2) [2.11]. See also Anastassia Boutsko, ‘Ukraine and Russia Dispute Over Crimea Gold Reaches Next Level’ ( DW , 2 April 2022) < https://www.dw.com/en/ukraine-and-russia > accessed 10 March 2024. [7] ‘Interim judgment in the matter of the Crimean treasures’ ( de Rechtspraak , 16 July 2019) < https://www.rechtspraak.nl/Organisatie-en-contact/ > accessed 10 March 2024. [8] Amsterdam District Court (n 2) [4.1]. [9] Campfens and Tarsis (n 2) 41. [10] Ukraine, the Netherlands and the Russian Federation are all State Parties of the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (‘1970 UNESCO Convention’). [11] Although the Netherlands signed but did not ratify the 1995 UNIDROIT Convention, the Dutch legislator has nevertheless chosen to reflect some of its principles in Dutch Law, including in the 2016 Dutch Heritage Act. See the Explanatory Memorandum to the Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property adopted in Paris on 14 November 1970 (Parliamentary Documents, Kamerstuk 31255, No. 3, 2007-2008) < https://en.unesco.org/sites/default/files/netherlands_implementationact_conv1970_memo.pdf > accessed 10 March 2024. See also Amsterdam District Court (n 2) [4.3]; Campfens and Tarsis (n 2) 45. [12] 1995 UNDROIT Convention, Art. 5.2(2); Campfens and Tarsis (n 2) 45. [13] 1970 UNESCO Convention, Art. 4(b). [14] 1995 UNIDROIT Convention, Art. 3(2); Evelien Campfens, Cross-border claims to cultural objects. Property or heritage?  (Eleven 2021) 193. [15] Law of Ukraine on Exportation, Importation and Return of Cultural Values (Vidomosti Verkhovna Rada) No. 48 (1999), Art. 23 [16] Campfens (n 14) 82. [17] ibid 81. [18] ibid 82. [19] ibid 83; Dutch Heritage Act 2016, Art. 6.7. [20] Campfens (n 14) 83. [21] ibid . See also the Explanatory Memorandum to the Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property adopted in Paris on 14 November 1970 (Parliamentary Documents, Kamerstuk 31255, No. 3, 2007-2008). [22] Campfens (n 14) 77; Amsterdam District Court (n 2) [3.2]. [23] In particular, under the Decree of the Cabinet of Ministers of Ukraine (February 2, 2000) on the basis of Art. 15(3) of the Law of Ukraine on Museum and Museum Affairs of 29 June 1995; Constitution of Ukraine, Art. 13. See also Evelien Campfens, ‘Whose Cultural Heritage? Crimean Treasures at the Crossroads of Politics, Law and Ethics’ (2017) Grotius Centre Working Paper 2017/068-PIL 7. [24] Campfens (n 23) p. 15. [25] ibid 7. [26] ibid. [27] Campfens and Tarsis (n 2) 39. [28] Campfens (n 23) 15. [29] Amsterdam District Court [4.8]. See also Campfens (n 14) 83. [30] Dutch Civil Code of Procedure, Art. 1012. [31] Court of Appeal of Amsterdam, Case No. 200.212.377/01, C/13/577586 / HA ZA 14-1179, 26 October 2010. [32] ibid [3.4]. [33] ibid [3.5]; Dutch Heritage Act 2016, Art. 6.3. [34] Court of Appeal of Amsterdam (n 31) [3.5]. [35] ibid . [36] ibid [3.14]-[3.16]. [37] The Court of Appeal acknowledges that the 1970 UNESCO Convention generally opposes to the cultural property remaining in the recipient country longer than permitted, by referring to its Preamble, which reads: ‘Considering that it is incumbent upon every State to protect the cultural property existing within its territory against the dangers of theft, clandestine excavation, and illicit export’. Nevertheless, as there has been no ‘theft, clandestine excavation, and illicit export’, the Court of Appeal held that the AP Museum acted legally. [38] Court of Appeal of Amsterdam (n 31) [3.6]; 1995 UNIDROIT Convention, Art. 2(1) and 3. [39] Court of Appeal of Amsterdam (n 31) [3.6] [40] ibid. [41] ibid. [42] ibid [3.8.3]. [43] ibid [3.18]-[3.21]. [44] ibid [3.21]. [45] ibid [11]. [46] ibid [3.22]. [47] ibid [3.25.1]. [48] ibid. [49] ibid. [50] ibid [3.28]. [51] ibid. [52] ibid [3.25.2]. [53] ibid [3.31]. See also ‘Allard Pierson Museum has to hand over the Crimean Treasures to the Ukrainian State’ ( De Rechtspraak , 26 October 2021) < https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Gerechtshoven/Gerechtshof-Amsterdam/Nieuws/Paginas/Allan-Pierson-Museum-has-to-hand-over-the-Crimean-Treasures-to-the-Ukrainian-State.aspx > accessed 10 June 2024. [54] Court of Appeal of Amsterdam (n 31) [3.32.3]. [55] ibid. [56] ibid. [57] Supreme Court of the Netherlands, Case No. 22/00270б ECLI:NL:GHAMS:2021:3201 (9 July 2023). [58] Wen Xiao, Jon Mills, Gabriele Guidi, Pablo Rodríguez-Gonzálvez, Sara Gonizzi Barsanti, and Diego González-Aguilera, ‘Geoinformatics for the conservation and promotion of cultural heritage in support of the UN Sustainable Development Goals’ (2018) 142 Journal of Photogrammetry and Remote Sensing 1. [59] ibid. [60] Caleb A Folorunso, ‘Globalization, Cultural Heritage Management and the Sustainable Development Goals in Sub-Saharan Africa: The Case of Nigeria’ (2021) 4 Heritage 1709. [61] Indre Gražuleviciute, ‘Cultural Heritage in the Context of Sustainable Development’ (2006) 27(3) Environmental Research, Engineering & Management, 74-9. [62] Folorunso (60) 1710-1. [63] British Council, ‘The Missing Pillar: Culture’s Contribution to the UN Sustainable Development Goals’ ( British Council , 2020) 9 < https://www.britishcouncil.org/arts/culture-development/ > accessed 10 March 2024. [64] Jyoti Hosagrahar, ‘Culture: at the heart of SDGs’ ( UNESCO , 11 April 2017) < https://en.unesco.org/courier/april-june-2017/culture-heart-sdgs > accessed 29 May 2023. [65] ‘Transforming our world: the 2030 Agenda for Sustainable Development. Resolution adopted by the General Assembly on 25 September 2015, A/RES/70/1’ ( UN Department of Economic and Social Affairs , 21 October 2015) < https://sdgs.un.org/2030agenda > accessed 10 March 2024. [66] Xiao et al (n 58) 3. [67] Luigi Petti, Claudia Trillo, and Busisiwe Ncube Makore, ‘Cultural Heritage and Sustainable Development Targets: A Possible Harmonisation? Insights from the European Perspective’ (2020)   MDPI 13; ‘Culture in the Implementation of the 2030 Agenda: A Report by the Culture 2030 Goal Campaign’ ( Creative Europe , September 2019) 38 < https://agenda21culture.net/sites/default/files/culture2030goal_high.pdf > accessed 29 May 2023. [68] International Council on Monuments and Sites, ‘Heritage as a Driver of Sustainability’ ( Google Arts and Culture ) < https://artsandculture.google.com/story/ewVBpE8qiz0gUQ > accessed 10 March 2024. [69] Campfens and Tarsis (n 2) 39-40. [70] ibid 39. [71] Oleksandr Palii, ‘A History of Ukraine: Great Victories of Great Scythia’ ( Radio Lemberg , 27 December 2017) < https://www.radiolemberg.com/ua-articles/ua-allarticles/a-history-of-ukraine-episode-8-great-victories-of-great-scythia > accessed 10 March 2024. [72] Campfens and Tarsis (n 2) [73] Song In-geol and Gil Yun-hyung, ‘Court rules that ancient Buddhist statue can remain in Korea’ ( Hankyoreh , 27 January 2017) < https://english.hani.co.kr/arti/english_edition/e_national/780472.html > accessed 10 March 2024. [74] Campfens (n 23) 17-8; ‘S. Korea court awards Japan’s stolen statue to local temple’ ( Dawn , 27 January 2017) < https://www.dawn.com/news/1310981/ > accessed 10 March 2024. [75] Campfens (n 23) 15.

A snapshot in time of English folk music, queer visibility, and gender non-conformity Alex Garden is a fiddle player, guitarist, composer, and producer with a unique approach as a result of ten years experience performing folk, classical, and improvised music around the UK. Alex uses they/them pronouns. Their projects include The Drystones, Sheelanagig, Tarren, Harriet Riley & Alex Garden, The Terra Collective, and The Longest Johns, and they also produce a variety of collaborative work as a recording artist alongside this. Their longest running project, The Drystones, has been nominated for the BBC Young Folk Award and received an Arts Council England project grant in 2021 for a new tour, with a mission to involve more younger audiences in UK Folk music.  CJLPA : How were you introduced to folk music, and what encouraged you to pursue your passion for folk music as a career?   Alex Garden : As a child from a Scottish family living in England I was introduced to ceilidhs and traditional songs and tunes. This, combined with a proximity to the incredible Priddy Folk Festival in Somerset and encouragement from an amazing violin teacher, led me to playing folk tunes on the fiddle in my free time. As teenagers at our local comprehensive school, Ford Collier and I discovered an overlapping passion for traditional music and we started playing together as The Drystones when we were around fifteen.[1] Along our journey we were very fortunate with the experiences we had, such as playing at Glastonbury Festival multiple times, appearing on BBC radio programs, supporting our heroes onstage, and producing our debut studio album. The opportunity for young people to have these experiences and to truly believe that they can make a living out of their music is very rare. We were extremely lucky to have been given the space and time to develop as young musicians and it's something I cherish every day.   A career in folk music is not particularly glamorous or financially lucrative. I seem to spend a lot of time in fields, motorway service stations, and the odd night sleeping on hay bales in a barn. However, the community, creativity, and the love it brings me is incredible.   CJLPA : What is your approach to instrumental music? What makes it unique?   AG : My approaches to all music vary from project to project, and day to day. Some projects, like my trio Tarren, are rooted in specific traditions; in this case the English tradition.[2] Others, like The Drystones, are informed by folk music more broadly, and fuse electronic, techno, and prog genres together. Then there are more theatrical shows with Sheelanagig, and a unique duo project with Harriet Riley on vibraphone which brings together folk, minimalism, and jazz through entirely new compositions.[3] Generally, I love writing and improvising new music within a broader view to reworking old material. One constant throughout my work is trying to achieve perpetual fresh perspectives within the living tradition.   CJLPA : Tarren has recently been awarded a grant from the English Folk Dance and Song Society, which you are using to research gender in English traditional song. How is harmful gender discrimination visible in English traditional song and folk music more broadly?   AG : When we talk about folk music we are generally discussing music, dance and text, which dates back to a time where this material was passed on and recycled through the aural tradition. This works a little like the game Chinese whispers, where each time the material is passed from person to person it changes slightly, either by accident or deliberately. The reason many of these songs still exist today is that they were being transcribed and written down by folk song collectors, such as Cecil Sharp, who was mostly active during the Edwardian period. Sharp is a controversial figure often accused of being racist and fascist. However, in order to keep this section about gender and music, I will let you do your own reading around this to form your own judgements. Through the work of these collectors, we see that that a lot of songs, tunes, and texts have a wide diaspora across the country, across the world in some cases, with significant localised nuances and variations.   Gender and class equality issues come into play for several reasons during this collecting process. Firstly, the songs themselves were often collected by men from other men, because both the academic pursuit of folk song collecting and many of the working environments where the songs were sung were inaccessible to women. Many of the songs collected during this time, known as the ‘first revival’ in England, were misogynistic and violent towards women, often mistreating them in a variety of barbaric ways.   The famous Anglo-American ballad ‘Pretty Polly’ serves as an example. The male protagonist, an unnamed ships carpenter, promises to marry Polly and subsequently murders her when she becomes pregnant before the wedding, burying her in a shallow grave. I’ve heard this song being sung in folk clubs many times and it’s often sung with a kind of apathy for the message or meaning behind the text and being glorified simply for being part of the tradition. This is just one example of many songs.   There are also old songs which can be said to promote transphobia, which is surprising as we generally regard trans visibility in Western culture to be something which appears much later on in the late 20th century. The song ‘The Close Shave’ (and various other versions) tells the story of a sailor coming into port after a long time at sea to trade gold. He meets a pretty maid and they spend the night together. When he wakes in the morning, his gold is gone and instead he finds a woman’s dress, a wig, and a shaving kit. The song’s pinnacle is the line “my pretty maid’s a man’ I cried, and thanks be I fell asleep, for I’d rather lose a bag of gold than wake up with that creep’. Here, we see an attempt at humour at the expense of a cross-dressing character which plays into the narrative that men are often unfairly and deliberately deceived into being attracted to trans people, and teaches that it is acceptable to shame them. I’m very much in favour of musical humour and taking traditional material with a pinch of salt, but I’ve experienced this song being sung by all ages and watched as they all sing the line ‘wake up with that creep’ while smiling and laughing.   I think we need to take more responsibility when we are working with older material, acknowledging its shortcomings and educating audiences and performers about the dangerous messages hidden in these songs. They can be sung with better sensitivity, understanding, and context. For example, sometimes the meaning of a narrative can be flipped with a few simple edits. We can learn so much from history and folklore; let’s not simply erase it. Instead let’s use our critical faculties to interrogate the parts of our history we are not happy with.   Unfortunately, gender inequality in the English music industry extends to the present day at gigs and festivals. I have heard so many anecdotes from friends and colleagues where they have been mistreated, patronised, and embarrassed as performers because they identify as a woman, a trans person or non-binary identity. A friend who identifies as a woman was asked by her manager in public whether she has an ‘OnlyFans’ account (a user generated content site which is primarily used by sex workers to post pornographic material). A different woman’s performance was interrupted by a male sound engineer who said that she didn’t know how to tune her instrument, and another friend was sexually assaulted by venue staff.   On an everyday level we see constant micro-aggressions, such as women on stage only being described as ‘beautiful’ or ‘gorgeous’ whereas in the same breath men are described as ‘talented’ and ‘masterful’. This is so damaging to our beloved industry, and to the individuals who make this musical community thrive. If you witness any of these behaviours, please call them out. If you perpetrate any of these behaviours, please stop, retreat, seek help, and learn from your mistakes.   CJLPA : Why did you feel that it was important to use this grant to address gender discrimination in folk music culture?   AG : Folk music in the UK is like a massive extended family. It includes people from all around the world, from every background, and is constantly in flux. It is the community which accepted me with open arms as a young person, taught me everything I know about performing, and gave me the career I have today. The same is true for many of my friends, and I know they hold this community very close to their hearts.   Much like in any other industry, it is paramount that we tackle discrimination in order to keep everyone safe and to continue welcoming new people from all backgrounds. If we don’t do this, there will be no fresh perspectives, no innovation, and no new ideas coming to the fore. The living tradition exists because it constantly interrogates and challenges itself to solve problems and to drive forward into new fields.   Writing in 2023, I am seeing huge changes happening in UK folk. Music is becoming more influenced by other cultures from around the world; it is delving into the world of electronic music and high production value, it is finding its place in gamer and fantasy culture, and it is cross-pollinating into many more disciplines which I don’t have the time to list. It also occasionally flirts with mainstream pop music, and achieves moments of viral, global popularity mostly thanks to social media. It is more important than ever that we address issues around discrimination in order to keep the genre and the community alive and thriving for generations to come.   CJLPA : You have previously spoken about how you chose to come out to wider circles through the article you wrote with Trans portraits. How was this received by your friends and your wider circle?   AG : ‘Coming out’ is a process which varies a lot from person to person. For me, perhaps ‘transition’ better defines my process, as it implies an ongoing period of time between one state and another, as opposed to representing a fixed point in time where there was a change. The article I wrote for Trans Portraits UK in 2022 was an opportunity, not only to describe my initial experiences of being openly non-binary, but also to put this into words for myself at the time, early on in the process.[4] This equates to a time of healing and self-education, whilst letting other people know all the fascinating things I am discovering about gender along the way.   In the article I focused on the euphoric aspect of transitioning, and made suggestions for how other people can make life easier for non-binary and trans folk around them. I had very positive responses from friends and the wider music community, and it has helped me form connections with other queer musicians, facilitated some fascinating conversation, and hopefully played a small role in spreading awareness of trans issues within the traditional music community.   As I have travelled from place to place playing music in the wake of transition, I have noticed myself create this kind of utopia in my mind of how things could be made a lot easier for the non-binary and trans community. I refer to this through the rest of the article.   CJLPA : As a gender non-conforming musician, how do you express yourself on stage, both in terms of image and through your music, and how do these forms of expression make you feel?   AG : My overall performance practice hasn’t changed a lot since I transitioned. However, the way I feel has changed a lot. Having fun, getting lost in music, and being playful is what it’s all about when I’m performing now. Everything, from the way I move to the way I speak and dress, feels more authentic now the pressure of needing to conform to a binary identity has been lifted.   The way I dress varies, in correlation with my gender-fluidity and an understandable desire to be physically comfortable on stage. Some days I’m feeling more femme and others more neutral. More often than not I’ll be found at a festival sporting some brightly-coloured dungarees, some mud stains, cat-eye sunglasses, and messy hair.   In UK folk music, I’m proud to be flying the flag for gender non-conforming musicians, and I feel extremely lucky to live in a world where we have developed the language and recognition of non-binary gender to facilitate this.   CJLPA : Did you face any challenges growing up as a non-binary person in a rural area where there were few queer spaces? What spaces should be made for non-binary/gender non-conforming people who are unsure about their identity growing up?   AG : Young people have a lot on their plate. While going through the various ordeals and dramas of education and finding an area in which to eventually earn a living, they also need to work out who they are and what their purpose is, on an existential level. We all go through a lot of experimentation in order to draw conclusions on our identity in an often turbulent trial and error process. We try something, we see how it fits, and either keep it up or lose it, and in order to feel secure in our conclusions we need to have just the right support, space, validation, and encouragement from our peers and guardians. Reflecting now, I have been extremely lucky in this regard.   Something that troubled me is the idea of needing to conform to behaviours and appearances of my assigned gender at birth. It took me until I was an adult to realise that this thing that was giving my subconscious such a hard time was an issue that could be addressed by simply looking at my identity in a different way. I recognised my freedom as a grown-up and met other gender-queer folk pursuing a career in the arts thanks to the creative urban hub in Bristol I now call home. Naturally, this process began introspectively and then became something I decided to present outwardly when I was ready.   Having always had a slight fascination with music and the way we develop as musicians, I have found that there are some gendered trends in terms of who learns what instrument, which is particularly noticeable in young musicians. In broad strokes, my experience is that young boys prefer to negotiate a masculine identity and seek catharsis through music, typically learning guitar, drums, or bass and starting bands with perhaps more rhythm and aggression. Young girls seek a broader range of creative outlets and tend to start by learning piano, bowed strings, woodwind, and vocals. This accompanies a noticeable attitude of self confidence in the former group, who mirror the behaviours of professional musicians they have seen live and on screen, whereas the latter group are sometimes more introverted in their approach, participating for self-development  and social aspects of music.   Although there are many academics who have weighed in with fascinating discourse on why this might be, one sees similarities when looking back to the nineteenth century, when women were excluded from public performance and instead encouraged to participate in music purely in private. The same was largely true for composers, conductors, and many other public-facing roles in the music industry. Perhaps we still carry this bias today.   Now, in the twenty-first century, we see the music industry progressing towards more even distribution of roles with regards to gender, race and class. For example, many orchestras have adopted blind audition processes to eliminate discrimination based on anything other than musicianship. However, there is still more work to be done to change our core beliefs and attitudes, particularly for young people, which result in stark imbalances in some parts of the music industry. For example, there are fewer women with jobs in percussion than there are men called David with jobs in percussion.[5]   Not everyone wants to learn music, so speaking more broadly, I will talk you through a few ideas and scenarios which may amount to safer and more encouraging environments for a young queer or questioning person.   Having a lack of queer role models as a young person can lead to them feeling hidden themselves, as they have no-one to show them that queer can also mean successful, happy, and empowered. This, combined with a culture of transphobic and homophobic language from peers, can amount to an extremely hostile place. It is important that we prioritise diversity in our educators, and expose young people to gender non-conforming people or cis-gendered people in roles which traditionally would have been taken by another gender. For the purposes of creating our fictional utopia, let’s have more male textiles teachers, female football teachers, and a couple of non-binary history teachers for good measure.   Spaces with gender allocation are very important too. Changing rooms and bathrooms can be hostile environments for those who are experimenting with gender or transitioning, particularly young and vulnerable people. I would love to see more allocation of safe, gender-neutral spaces alongside separate gendered spaces, and an attitude shift which seeks to educate young people about gender and encourage acceptance and safer behaviour.   The UK government has recently made two very dangerous moves with regards to this. Firstly they have said that the ‘rise in gender neutral toilets’ creates privacy issues and unfair disadvantage in a fairly obvious attempt to draw false equivalences between women’s rights and trans rights, as part of an ongoing anti-trans agenda (more on this later).[6] Secondly, Rishi Sunak said that new government guidelines will include rules about when schools must inform parents about children questioning their gender. Triggers for this are vaguely defined at the time of writing, but can include a young person experimenting with or changing their name, pronouns, or uniform. This is a very dangerous move from a safeguarding perspective, as it will effectively see teachers being forced to ‘out’ trans, non-binary, and gender non-conforming pupils to their parents or guardians without their consent and without the time or space to safely develop their identity. Even if a young person simply wants to experiment with their appearance, play in a different sports team, or try different pronouns, this leaves the door wide open for systemic abuse, restricts the young person’s autonomy on a basic level, and can lead to homelessness.   According to the AKT youth homelessness report (2021), half of LGBTQIA+ young people said they feared that expressing their identity to family members would lead to them being evicted.[7] Research from Stonewall shows that almost one in five LGBTQIA+ young people have experienced homelessness in their lives, and those rates climb to one in four amongst trans people.[8] Schools are meant to be safe spaces; in many cases the time a young person spends at school is the only time of the day when they are safe. We need to challenge the government on these guidelines, and we need to ensure that young queer or questioning people are protected and treated with the respect they deserve.   CJLPA : Have you faced any challenges as a non-binary musician and, if so, how do you think these challenges could be addressed?   AG : In terms of the intersection between my gender and career, I feel very lucky to admit that I haven’t faced many specific challenges as a musician so far… other than being mis-gendered a lot. The issues I face day-to-day are most likely ones that are shared by all non-binary and trans people when they are out and about. Working in music means that I have the advantage of working in a wide variety of hospitality settings each year, seeing a lot of different approaches to LGBTQIA+ inclusivity in those spaces, and opening up conversation about it with people who work there. This includes everything from fancy modern arts centres, to barns, city venues, sticky clubs, wedding venues, and, of course, festivals. I see a lot of different types of changing rooms, public toilets, and green rooms, and always breathe a sigh of relief when there is a dedicated genderless space for people like me who experience dysphoria in binary gendered environments.   The main issue I face, and I am sure all my other trans or non-binary friends would echo this, is being constantly mis-gendered or misunderstood. Despite my efforts to speak publicly about issues non-binary people face, to send over information to relevant parties in advance, and to kindly remind people, where relevant, I still get referred to with the wrong pronouns in public while at work. Often this is simply a compère not having enough information, a missed opportunity to ask a question at the right time, a basic slip of the tongue, or another entirely forgivable mistake. However, it does matter. Back to my gender-inclusive utopia, I would love to see a music industry in the UK which champions inclusivity and diversity in every way by working on the language it uses and the questions it asks.   If you work in the music industry, here is a little list of things you can do to make some positive differences to gender non-conforming folk: Practice pronouns. If you don’t already know, simply ask politely; Ensure that information about artists, staff, and crew which is passed on to other staff is accurate, up-to-date, and includes everyone’s pronouns; and Avoid saying ‘ladies and gentlemen’ when addressing a crowd. Say ‘they-dys and gentle-thems’ instead, or ‘ladies, gentlemen, and everyone in between’. If you say it confidently and quickly I promise the only people in the crowd who will notice the difference are those to whom it matters the most.   CJLPA : What are some common misconceptions about non-binary people?   AG : There are a few common misconceptions I hear regularly about non-binary people that I would like to address.   First, we are all androgynous . This is simply not true, and doesn’t work as a way to identify someone and make assumptions about them. Some of us play with androgyny, some or all of the time, but there are also plenty of cis-gendered people who present androgyny too and don’t identify as non-binary. The best way around this is to remember it is never wise to make assumptions about anyone based on appearance, even if you may have heard others do this before without consequence. It’s dangerous and can cause harm even if you don’t intend it.   Second, we’re offended every time you refer to us with the wrong pronouns or salutation/title . We are all human; we make mistakes and move on and that’s totally fine. Most non-binary people get mis-gendered quite a lot and won’t have a problem as long as you are trying your best, offer a correction, and you don’t make a fuss about it. The worst thing for me sometimes isn’t the act of being mis-gendered, it’s the aftermath of having to reassure and re-inflate someone’s slightly bruised ego after a barrage of disproportionate apologies from them. Just acknowledge the mistake and politely move on; it’s ok to make mistakes. That said, deliberate mis-gendering is an act of violence and should never be tolerated under any circumstance.   As a side-note, in my experience, words like ‘man’, ‘dude’, ‘guys’, and ‘mate’ are usually not seen as particularly gendered by most people these days. It’s often the tone and the context in which you use these words which is likely to cause someone dysphoria—we just have to make sure we’re vigilant with our language and if we’re not sure of something, ask.   Third, ‘cisgender’ is a slur. The Oxford English Dictionary defines cisgender as ‘describing or connected with people whose sense of personal identity and gender is the same as their birth sex’.[9] It’s as simple as that; nothing more, nothing less. No matter what you might have heard Piers Morgan say, this word is not intended to divide or insult people. Rather, it is necessary as part of the terminology which allows trans and non-binary people to exist, enabling us to define everyone fairly in reference to their assigned gender at birth. If you find this word offensive, I’d suggest this is due to an internalised transphobia which you may have picked up from TV, films, newspapers, and social media. Don’t worry, we can all become better allies no matter where we are coming from and there’s never been a better time to access the resources you need to self-educate about gender variance.   Fourth, we all use they/them pronouns.  Wouldn’t that be nice and simple? I’m afraid it doesn’t work like that. There are a plethora of gender-neutral pronouns which folk use (like ze/hir, xe/xem, fae/faer etcetera), and many people use a combination such as she/they, where multiple types of pronouns can be used to refer to that person. Some people, whose gender is more fluid for example, will constantly vary the pronouns they use in accordance with their experience. The point is, all pronouns are equally important as part of our language. We all have them and we can all use the correct ones when referring to others if we make the effort.   Fifth, pronouns are a preference . Whenever you see ‘preferred pronouns’ said out loud, written on a form, or on a list of options, politely call it out. ‘Preferred’ implies that they are optional and that others can choose which pronouns they use to refer to you (usually he/her). This is not correct. Pronouns can only be decided by the individual, and it’s important we reflect that in the language we use (for example, I do not prefer  they/them pronouns, I actively use they/them pronouns).   Finally, you can infer someone’s sexual orientation by the fact that they are trans/non-binary . This feels really obvious to say. However, I’ve seen so many examples of this assumption being made and it causing someone dysphoria or putting them in danger. Gender and sexuality are not the same thing and are not inherently linked in any way. Any person can experience a gender and a sexuality at the same time and there are no useful correlations. Never assume someone’s sexual orientation, full stop. It’s pretty rude, you can cause genuine harm, and most of the time you’ll probably get it wrong.   CJLPA : How can friends or allies of non-binary people support you?   AG : There are plenty of ways in which friends or allies can support and actively make life better for gender non-conforming folk. I’ve made lots of suggestions elsewhere in this article, so in order not to repeat myself I’ll go into more detail on three main areas which I feel require some work.   Firstly, feeling understood.  If you want to be a better ally as a part of modern western culture, one of the simplest things you can do is go and learn about the incredibly diverse and fascinating history of gender variance around the world and gain an understanding that, despite much of this language being fairly new to us at the moment, gender-variant identities are an ancient and wide-spread practice for humanity. For example, learn about the Hijra communes in South Asia whose origins go back to 400BC and still exist today, indigenous North American Two-Sprit people who traditionally, but not exclusively, fulfil a gender-variant identity, and the Ancient-Egyptian Sekhet which refers to a third gender that does not include men or women and dates back over 4000 years. This is just scratching the surface. Along the way, you’ll read some harrowing stories of how western colonisation has attempted to misrepresent, erase, and exterminate many of these communities, and discover how important it is that we learn about these amazing people. Be aware as you read, lots of the research you find will have been conducted through the western lens of binary gender and you may come across cultural appropriation too (for example, someone wrongly referring to themselves as these identities despite not belonging to these cultures and ethnic groups). Noticing this is an important step in the process. As an outsider, the hope is that when we see and start to understand the hundreds of cultures who have accepted gender-variance successfully before. This gives hope for western society becoming more accepting too.   Secondly, feeling seen. Through a little healthy pedantry we can help a marginalised group in society feel more seen by using the right language. This is so important to building a world which not only validates but celebrates those groups. Be pedantic when it comes to pronouns (they, he, she, etc), salutations (Sir, Madam etc) and honorifics (Mr, Ms, Mrs, Mx etc). Never make assumptions, and if you’re not completely sure (and you actually need to know) ask, don’t assume. In case you were wondering, I use the honorific Mx which is often not included on forms. Similarly to the common honorific Ms (the modern understanding of which we have to thank those brave, pioneering, early twentieth-century feminists), Mx has developed for a reason in order to allow a group of people access to basic things. I’ve made it my mission to call out each and every instance where this is not an option on a form, and have generally been met with companies and institutions happy to change their process once I’ve explained it. There are a few disappointing exceptions I’ve encountered, such as energy giant British Gas, who have still not even responded to me after a year of emails about the matter. In these cases, when Mx is not an option, I’m slightly reluctant to admit in an academic journal, I use the honorific Dr as it’s often the only gender neutral option. My degree is a BA but maybe British Gas could pay for my doctorate one day by means of compensation?   I find it bizarre that, in the UK, companies will often provide options for honourifics like Dame, Lord, Lady, Admiral, and Excellency, without a simple Mx. They also commonly include Christian honorifics such as Reverend or Father, whilst not including them from other major religions such as Islam or Judaism. Call this out. It may seem very insignificant to you, but it will mean a lot to someone out there if we can create options for everyone. Take note if you happen to work designing a form for anything other than medical reasons; perhaps don’t ask for someone’s personal information you don’t need to know. The number of times I’ve been asked my gender for no reason whatsoever is astonishing. Most of the time it is simply irrelevant; we are just taught and accept that we can know someone’s gender without questioning why.   Finally, challenge the government on systemic transphobia.  The UK government have recently announced that trans people will be banned from gendered wards in NHS hospitals, claimed that ‘they know what a woman is’ and said that the ‘rise in gender neutral toilets’ is a problem and have issued regulations ensuring that all new public buildings will have ‘separate male and female toilets’. [10][11] Whilst I agree that having separate toilets for men and women alongside gender neutral spaces is probably the way forward for now, there are several things about this I find very disturbing.   Firstly, the government is actively choosing to allocate space for binary genders, whilst diminishing responsibility for planners and architects to allocate spaces for gender-nonconforming people. If there was no anti-trans agenda here then why would they not simply allocate for all three? Most public toilets come in threes anyway.   Secondly, the government has said very little on the matter of allocation of toilets for disabled people who face a basic lack of access and provision in most public spaces. Many public disabled toilets currently don’t have safety rails, hoists or even ramp access. If they wanted everyone to benefit from reviewing public toilet regulations, surely this is the area which needs the most work.   Thirdly, the research on which this decision was based directly contradicts it. You can read the study for yourself on the government website; their call for evidence presents that 83% of responses are in favour of non-gendered toilet provision whereas 12% are in favour of separate gender toilets only.[12] It also shows that safety concerns for trans or non-binary people using public toilets outweigh those for any other group. Their plan to ‘protect public toilet provisions for men and women’ is a purely political move which uses coded transphobic language and draws a false equivalence between trans people existing freely and the removal of protections for cis-gendered women. If 48% of trans people feel unsafe using public toilets (again, the government’s own research) then why is the government putting forward regulation which harms them? In addition, policing these spaces and promoting this mentality has, and will, also affect cis folk through beauty and behaviour standards, encouraging them to self-police and requiring them to look and dress in certain ways to access those spaces.   The bottom line here is that trans rights do not take away cis-gendered peoples’ rights, and we can challenge the government on this through petitions and well-informed, high-quality journalism. For example, fighting for all women’s rights against the larger issue (the patriarchy) helps all women. More rights for trans and non-binary folk does not equal fewer rights for cis women and men.   CJLPA : Where are your favourite queer-spaces and venues in Bristol?   AG : There are plenty of safe spaces for queer people to enjoy in Bristol and it’s one of the reasons I am so deeply in love with this beautiful city. Strange Brew is a venue I talk about a lot as it has one of the best examples of how to do toilets. Three options are provided—urinals, gender neutral cubicles, and women’s only cubicles. I have never felt unsafe with that system, nor have I ever heard anyone take issue with it. I’ve never seen any queues, even when the venue is sold out, because everyone is catered for based on what they actually need. Take note venue architects! They also host amazing jam nights, live gigs, quizzes, drag, comedy, the lot.   Other great spaces include Lost Horizon, Jam Jar, The Gallimaufry, Old Market Assembly, St George’s, and my local pub, The Greenbank, where I run a twice-monthly inclusive folk session which anyone is welcome to attend. This interview was conducted by Abi Dore, a Legal Researcher for the Human Rights Volume of CJLPA 3. In addition to her role at CJLPA, Abi is currently working as a Trainee Lawyer and will qualify as a lawyer in England and Wales in February 2024. [1] The Drystones < https://www.thedrystones.co.uk/ > accessed 17 October 2023. [2] Tarren < https://tarrenmusic.com/ > accessed 17 October 2023. [3] Bob Fish, ‘Harriet Riley & Alex Garden’ — Sonder III’ ( Folk Radio UK ,   13 October 2023)   < https://www.folkradio.co.uk/2023/10/harriet-riley-alex-garden-sonder-iii/ > accessed 19 October 2023. [4] ‘Alex Garden’ ( Trans Portraits UK , 2022) < https://www.transportraitsuk.org/alex-garden > accessed 19 October 2013. [5] Emily Gunton, ‘Bang the drum for change: why do orchestras have so few female percussionists?’ Guardian (London, 8 March 2021) < https://www.theguardian.com/music/2021/mar/08/why-do-orchestras-have-so-few-women-percussionists > accessed 20 October 2023. [6] Department for Levelling Up, Housing and Communities and The Rt Hon Kemi Badenoch MP, ‘All public buildings to have separate male and female toilets’ ( Gov.uk , 4 July 2022) < https://www.gov.uk/government/news/all-public-buildings-to-have-separate-male-and-female-toilets > accessed 20 October 2023. [7] < https://www.akt.org.uk/youth-homelessness-report-2021 >. [8] Chaka L Bachmann and Becca Gooch, ‘LGBT in Britain: Trans Report’ ( Stonewall ) < https://www.stonewall.org.uk/system/files/lgbt_in_britain_-_trans_report_final.pdf > accessed 20 October 2023. [9] ‘Cisgender’ ( Oxford Learner’s Dictionaries )   < https://www.oxfordlearnersdictionaries.com/definition/english/cisgender#:~:text=%2F%CB%8Cs%C9%AAs%CB%88d%CA%92end%C9%99r%2F,same%20as%20their%20birth%20sex > accessed 20 October 2023. [10] Aubrey Allegretti, ‘Trans hospital patients in England to be banned from female- and male-only wards’ Guardian (London, 3 October 2023) < https://www.theguardian.com/society/2023/oct/03/trans-hospital-patients-in-england-to-be-banned-from-female--and-male-only-wards > accessed 20 October 2023. [11] Badenoch (n 6). [12] Department for Levelling Up, Housing and Communities, ‘Toilet provision for men and women: call for evidence—analysis of responses received’ ( Gov.uk , 13 August 2023) < https://www.gov.uk/government/consultations/toilet-provision-for-men-and-women-call-for-evidence/public-feedback/toilet-provision-for-men-and-women-call-for-evidence-analysis-of-responses-received > accessed 20 October 2023.

Ronald W Meister is a distinguished legal professional serving as Senior Counsel at Cowan, Liebowitz & Latman in New York City. Holding the prestigious role of Chairman of the Board at the National Institute of Military Justice, Meister brings a wealth of experience in litigation across federal, state, and military trial and appellate courts. With a background as a military judge and a history of representing active duty reserve and former military personnel, his legal journey is marked by expertise and dedication. Notably, Meister has played a significant role in legal matters around Guantanamo Bay, defending in 2014 a Navy nurse refusing to continue force-feeding detainees. His impactful contributions to the legal landscape make Ronald Meister a standout figure in the field. CJLPA : We are pleased to welcome you today, Mr. Ronald Meister, to interview with The Cambridge Journal of Law, Politics, and Art . By way of introduction, you are currently a Senior Counsel at Cowan, Liebowitz & Latman and Chairman of the Board of the National Institute of Military Justice. Prior to this, you concentrated on litigation and federal, state, and military trial and appellate courts. You were also formerly a military judge and represented active duty reserve and former military and personnel among your vast experience. You also offered your legal services at Guantanamo Bay, which is what we would like to focus our interview on today. To begin, in July 2014, it was reported that a Navy nurse refused to continue force-feeding detainees at Guantanamo Bay. You acted as lead attorney for this former Guantanamo nurse. Can you please tell us what prompted you to take on this case?   Ronald W Meister : Well, as you mentioned, I served as a Navy JAG ( Judge Advocate General ) officer and as a defence counsel and military judge during the Vietnam era. I have continued my involvement in military justice since then and to this day as chair of an organisation called the National Institute of Military Justice. I have been involved in Guantanamo matters, coordinating an observer program for NIMJ and travelling to Guantanamo. I have written briefs on Guantanamo Bay cases for the US Supreme Court. When this case arose, I was contacted by a retired brigadier general, who had been involved with an organisation called ‘Physicians for Human Rights’. He brought the case to my attention and asked if I would be willing to represent the nurse, which was the kind of case my education and experience had prepared me for and would be interested in doing.   CJLPA : Particularly in this case, the nurse faced a potential discharge from the military for refusing to continue administrating force-feedings at Guantanamo. How did the Navy explain the complaint against them?   RM : The Navy is not in the business of explaining, the Navy is in the business of ordering. And they wanted the medical personnel at Guantanamo to do certain things. And they are unhappy when they do not do them. To the extent that there was any explanation at all, they expressed, perhaps regarding it as compassionate, a desire to prevent prisoners from committing suicide by refusing to eat.   CJLPA : From your observation of this case, was force-feeding a means of discouraging the detainees’ protests against their living conditions, or rather an attempt to prevent them from risking death?   RM : There is no doubt that they are trying to discourage protests. There is no evidence that any detainee was on the verge of death from a hunger strike. They wanted to discourage prisoners from conducting what they called ‘asymmetrical warfare’. The Navy had the guns, the military had the ammunition, and the person had nothing, so they were fighting back with the only available tools. And one form of protest was to engage in a hunger strike.   CJLPA : Could you discuss the legal obstacles you encountered while taking on this case and how you overcame them?   RM : The principal philosophical obstacle was the ingrained military habit of obeying orders, which are presumed to be legal. And there is considerable difficulty to carry the burden of proving that the order is illegal. We also faced a Supreme Court decision from 1950 called Johnson v. Eisentrager , which held that US courts had no jurisdiction over German prisoners of war held outside the geographic boundaries of the United States. So, the Eisentrager  case had been upheld and enforced by that time over the years and was a precedential obstacle that had to be overcome or distinguished.   CJLPA :   Eventually, the US Navy dropped all charges against the nurse. What factors do you think played a key role in this outcome?   RM : Well, they did not tell us why. As I said, they are not in the business of explaining. We had enlisted the support of some extremely helpful organisations, who felt that the vindication of nursing ethical obligations was important, principally Physicians for Human Rights, which I mentioned before. We also succeeded in getting the help of the American Nurses Association, which was very vigorous in support of our client and ultimately, at the conclusion of the case, granted him an ethics award—the first one they had ever issued. We got some support to a lesser degree from the American Medical Association. This profoundly conservative organisation was less enthusiastic, at least at the outset, than the American Nurses Association. But they did help.   Presumably, due to the attention focused on the case, the Department of Defense, which has a Committee on Medical Ethics, ultimately issued a statement supporting our position. That was persuasive once we had some support within the Department of Defense. I think a couple of other things that helped us are that the nurse himself had a highly admirable military record. He had, by that time, over 17 years of service. He had asked the Navy to send him to nursing school, which they did, where, among other things, he learned nursing ethics.   We also never disclosed his identity because we wanted to avoid any possible argument that he was doing this for publicity or his career. Even after the charges were dropped, even after efforts to bar his successful retirement from the Navy were over, and after he retired and started receiving his military pension, we did not disclose his name. So, indeed, when the ANA granted him its ethics award, I accepted it on his behalf and ultimately delivered it to him. We used to call him ‘Lawrence Nightingale’. But we never disclosed his actual name.   CJLPA : In this case, it seems that the court of public opinion or the pressure of publicity was not necessary to get the Navy to drop charges, but rather just the internal investigations and the dialogue between both sides.   RM : There was a degree of press attention to the case in the military and civilian press. So again, while we did not receive or expect an explanation, I think all of those factors together persuaded the people making the decisions ultimately to drop this case.   CJLPA : In addition to representing the Navy nurse, you also prepared the brief for the National Institute of Military Justice as amicus in support of petitioners in respect to the Rasul v. Bush   case. For our viewers, Rasul v. Bush   was the landmark US Supreme Court case that decided that US courts have jurisdiction to hear habeas corpus  petitions filed on behalf of the foreign nationals imprisoned at the Guantanamo Bay detention camp. I would like to ask you a few questions about this brief used in respect to Rasul . Reflecting now, what was the strongest legal argument in that brief that ultimately won the court over and why?   RM : There is no evidence that any arguments we made in our amicus brief made a difference to the court. There were a huge number of amicus briefs filed in support of the petitioners in the three related cases Rasul ,  Padilla , and Hamdi . And there is no mention anywhere in all the Supreme Court opinions in all three cases of any of the amicus  briefs. We made arguments that included domestic and international law arguments, and arguments specifically grounded in the Geneva Convention, of which the US is a signatory, and which is binding in US courts. None of the international law arguments entered the court’s opinion. That is not to say that the pressure of some arguments was ineffective. We just do not see that described as the rationale for the decisions in the case.   CJLPA : In the brief, you exposed the double standards in the application of the Geneva Convention relative to the treatment of prisoners of war, or the GPW under international law, whereby the US government declared the detainees to be outside the law, such that none of the existing rules governing the treatment of individuals detained in combat applied. Meanwhile, the US expected other nations to abide by international law and extend protections to Americans captured or detained in armed conflict. What impact, if any, do you think this double standard has had on the US?   RM : Well, let’s talk about what arguments were ultimately persuasive. You have to read behind the opinions and try to deduce what caused the Supreme Court to come out the way it did. The ultimate factor, I think, is that the idea that Guantanamo Bay was outside of the law, outside of US law, outside of international law, was too much for a majority of the Supreme Court to swallow.   Courts have been telling the executive in the United States for years what it cannot do. That goes back to Marbury v. Madison   under   Chief Justice Marshall in the early 1800s. It most famously came to a head in the Steel Seizure Case ( Youngstown Sheet & Tube Co. v. Sawyer ) in the US Supreme Court. So it is not unfamiliar for the Supreme Court to say to the executive, ‘you cannot do this’. And I think the effort of principally Secretary of Defense Rumsfeld to create a place in Guantanamo that was totally outside the law—domestic law, international law, Cuban law, any kind of law—where there would be no accountability whatsoever, was too much for the court to swallow. So, while in Rasul , the case in which we submitted our brief, the court relied exclusively on US domestic law and, to some extent, its roots in the English common law, I think when you take the three cases together and the many opinions, there may have been a bit of cover for a desire to apply some of the standards of international law, though they never said it.   The most important of these is Justice O’Connor’s opinion in the Hamdi case. Justice O’Connor wrote for four justices that there was accountability . She never uses the words Geneva Convention. But she writes an opinion that gives Hamdi and those in his condition procedural rights equivalent to what is provided in the Geneva Conventions, though she never says that. She makes up a structure that she says is applicable, including the right to counsel and knowledge of the charges against you. And she just says, these would be good things, and we think that, as on oversight of the justice system you ought to be doing this.   Well, we have  a structure. You do not need to make these things up. We have a document interpreted to tell you what kind of rights people have. It’s called the United States Constitution. And because of that, Justice Scalia, who I think it is fair to say, was a more sophisticated thinker on constitutional issues than Justice O’Connor was, just tears this opinion apart. He says: ‘You are making up a constitution’. But it worked for her and for the three judges who joined her, and then for the two other judges who joined the plurality opinion, to make a decision in the case. So, while you cannot find in the opinion a reliance on international law, you do if you read it in a certain way, as I do, and you find that the concepts of international law are what turned the tables in that case. So that is the background.   You asked me about the double standard. Other countries regularly point out the hypocrisy of the United States in preaching to them what they can do with prisoners, what they can do on the battlefield, what kind of force can be used, when the US itself is a principal purveyor of torture, and is a principal purveyor of massive retaliation, as for example in Iraq, and that decreases this country’s credibility when it seeks to enforce standards on the others.   CJLPA : You mentioned how Justice O’Connor discusses international law concepts without explicitly referring to international law. Why do you think there is a reluctance to rely on international law within the judgment specifically?   RM : There has been a long unwillingness in this country to submit its conduct to international oversight and control. At least in our modern memory, it goes back to our unwillingness to join the League of Nations after World War I. There has certainly been a trend of isolationism in the history of this country, unwillingness to submit to certain international tribunals, and a feeling that we know what is best for ourselves. Still, at the same time, we tell other people what is best for them based on our standards. And one of the great exceptions to that was this country’s adherence to the Geneva Conventions. And if you look at the background and the rationale of those provisions, much of it is with the understanding that it protects US forces: if we adopt these standards and comply with them, we have a stronger argument that our forces fighting overseas will be protected. I wonder if that concept prevails to the present day and certainly it was not at the forefront of Secretary Rumsfeld’s mind, when he said, ‘We are going to put people in a position without rules’.   CJLPA : You also set out various protections and guarantees codified in the military justice system, including the right against self-incrimination, the right against cruel and unusual punishment, or the right to a speedy trial. The detainees went through military courts, and yet none of the detainees ever got to realise these rights. Why?   RM : Well, it is not accurate to call these people detainees. The government, the Defense Department, wants to call these people detainees, as if they are just waiting for a bus to come along. They are prisoners, long-term prisoners. They are prisoners in very harsh conditions. So, some people prefer to refer to them as prisoners. Whatever the term you use, these are neither military courts nor courts-martial. The rights we describe in our brief are those that developed under, most recently, the United States Uniform Code of Military Justice, which has been in effect since the early 1950s. And they are well-established. But military commissions are a very different animal. Military Commissions are made up ad hoc. And the rules are made up ad hoc.   There was a long process of developing rules for these particular commissions that went through several rounds of legislation and litigation in the courts, and several times, Congress had to go back to the drawing board and start all over again. And ultimately, through those rules, a right of counsel was recognised. Other rights are enforceable in military courts, as in US civilian courts, like the right to a speedy trial, which are not  effective in these military commissions. And you have people who have been awaiting trial for over a decade, or over two decades, since some of the alleged behaviour occurred. So, to respond directly to your question, the prisoners did not get the rights guaranteed in military courts because they were not before a military court. They were before a military tribunal. And we have to recognise that those are two different things.   CJLPA : In the context of the war on terror and Guantanamo Bay, it is concerning to see how clear, coherent laws are disregarded in the name of national security. From your perspective, as a former judge, how can we ensure that the checks and balances system will not be interfered with again, as it was for the Guantanamo Bay prisoners?   RM : I can only say what was reportedly attributed to Jefferson: Eternal vigilance is the price of liberty. There have to be people who are prepared to take up unpopular causes for unpopular defendants. And that has been the case in this country. There are many good people I know that you have interviewed, many others who forcefully stood up for the rule of law. And that is not an easy choice and was not inevitable in this case.   When military tribunals were established first in Guantanamo, the National Council of Criminal Defence Lawyers took a policy position that they would not participate, they wouldn’t defend any of these defendants because it was an unfair, unjust, and indefensible system, and they didn’t want to be part of it. That position turned. Many dedicated lawyers, solo practitioners, academics, large firms, and small firms took up the cause of providing defence and making arguments, essentially that: ‘We’re better than this. The country is better than this. The country deserves better than this’. There will always be people who will do that.   There have been books written about them. There’s a wonderful book called The Guantanamo Lawyers that talks about the efforts that they have made here. It is also much dependent on the atmosphere at the time, a time when there are attacks on the United States, a time when there were 1000s of people killed. At any time of warfare, the courts, like any other institution, are in a defensive posture and do things out of concern for public safety and national defence. In retrospect, when much of that fear goes away, they have second thoughts about these things, so we have to be careful not to be entirely in a moment of fear and to recognise the historical context, which is very difficult.   CJLPA : That leads to my final question: what legacy would you like our viewers to draw from Guantanamo Bay?   RM : It is a question with many facets to it. From the standpoint of my involvement, one lesson is what I just said a moment ago: if we have standards, if we have ideals, if we have processes, if we have rules, then those rules ought not to be easily overcome by fear, by a desire for retribution. And we have to be true to our principles. The Constitution is a wonderful document that continues to evolve despite the views of so-called originalists. It has to change with context, and new situations always arise.   Guantanamo had some precedents in the establishment of military commissions. Only a few were on this scale, though there were in the Civil War and other times attempts to forego the civilian process completely. While during the Civil War, the courts were far more willing to accept the exigencies of the military condition, they later came to a more balanced understanding of what was permissible and impermissible.   But we have rules. We do not need to invent rules to apply the rules in cases like this. And we need people who don’t think they’re above the law and that what they do is beyond the law.   CJLPA : Thank you, Mr Ronald Meister, for taking the time to speak with us today, to tell us about your legal experiences with respect to Guantanamo Bay and for offering your valuable insights. It has been a great privilege for us and a very fascinating discussion. This interview was conducted by Nadia Jahnecke, Legal Editor and Founder of Human Rights Volume of CJLPA 3. In addition to her role at CJLPA, Nadia is currently working as a Trainee Lawyer and will qualify as a lawyer in England and Wales in March 2024.