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

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

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

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

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

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

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

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

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

Professor Mark P Denbeaux is an American attorney, professor, and author. He holds the position of Law Professor at Seton Hall University School of Law in Newark, New Jersey, and serves as the Director of its Center for Policy and Research. Denbeaux is renowned for his extensive work on the Guantanamo Bay detention camp, producing influential reports and testifying before Congress on the subject. He, along with his son Joshua Denbeaux, served as legal representatives for two Tunisian detainees at Guantanamo. Additionally, Denbeaux is the lead Civilian Military Commission Counsel for two individuals who were subjected to torture by the CIA in black sites before their detainment. CJLPA : Welcome, Professor Mark Denbeaux. Thank you very much for taking the time to come and interview with The Cambridge Journal of Law, Politics, and Art . Today, we would like to concentrate this interview on your research on Guantanamo Bay. Can you briefly tell us why you became involved in legal work around Guantanamo Bay?   Mark Denbeaux : I have always been a civil rights lawyer. It started in Selma, Alabama, in 1965 and kept going. I represented Black Panthers, handled sex discrimination cases, and various other issues, including criminal defence work.   My son came to me—he is also a lawyer. Josh said to me, ‘Dad, what do you think of Guantanamo?’. I said I had not thought much about it. This was right after the Supreme Court decision came down, giving the right to some kind of legal representation in Guantanamo. And he said, ‘Well, do you think they have the right guys there?’ I said, ‘I am sure they have some of the right guys, and I am sure they got some of the wrong guys. And it is the normal thing: they can’t tell’.   He said, ‘Do you think Grandpa would have believed that Patton’s Third Army could distinguish the good Germans from the bad Germans?’ I said, ‘Absolutely not. Dad would not have thought Patton had a clue who the good Germans were from the bad Germans’. Then I said, ‘But Josh, Dad would not have cared either. Because he did not believe there were any good Germans’. (They had liberated two camps.) So Josh said, ‘Well, is not that the point?’   I thought about it a little bit, and then he and I agreed that we ought to try to represent a couple of people down there just to see if we could do what we normally do as lawyers: figure out what the cases are, who should be released, and who should not.   Josh got me into it. We joined a group of people who were talking about how to do it—other lawyers, and we went together. At those meetings, they, among other things, referred the names of people who wanted lawyers. They gave Josh and me two, they were two Tunisians. This goes back 20 years.   We were given them because the belief was that they were a father and son. Therefore, they thought it would be nice for a father and son to represent a father and son. Well, they were not father and son. They did not know each other. It was a class difference. There was a big difference in many ways. But we represented them.   Over the course of years, we got one out to Slovakia. It was about 2009. His name is Rafiq Al Hami. We went to Slovakia to see him. He was quite grumpy. It turns out he had been released to Slovakia, but he had been held in Slovakia in what was a former Soviet prison, which had been renovated so that it was not as harsh. There were sort of groups of people living together. They had quite a bit of freedom.   We went to see him, and he said, ‘You know, I can’t leave here for two years. They are teaching me Slovakian’. I said, ‘Well, that’s good’. He said, ‘Can you think of a language that is less useful in the world today than somebody who knows how to speak Slovakian?’ All I could think of was to say, ‘Well, now it opens you up to the whole world of Slovakian literature’.   He was not very impressed with that. He was grumpy and unhappy.   The truth is we had both Tunisians released and life was not good for either of them when they got out. Rafiq’s brother lawyer in Tunisia. So was his sister. He came from a fairly substantial social class.   My other client—Lotfi Bin Ali—was also a Tunisian. He was not healthy. He had rheumatic fever as a child, and he had a rheumatic heart. He left Tunisia when he was 19 to go to Italy, where he was illegal. He was hiding, living on the streets, hand to mouth, and doing various criminal activities, some for which he was captured and prosecuted. But he had surgery on his heart there that helped him. He always wanted to return to Italy to be a chef.   Both of them were taken through the various routes. Both of them were tortured in Kabul in the ‘Prison of Darkness’, which is a gross story I can share if you want. They slowly got released: Rafiq to Slovakia and then Lotfi to Kazakhstan.   Kazakhstan was not a good place for Lotfi as access to healthcare could have been better. They were very hostile. He was also six foot eight. I did not realise at the time that Kazakhstan is basically an ethnically Chinese country. He could not find any clothes that would fit him. In the wintertime, he could not get winter clothes. He had a tough time. After a lot of work, we had him move to Mauritania, which was at least a Muslim country. Kazakhstan was only nominally Muslim. Mauritania was much better. He had a community there. Sadly, two weeks before he was about to be returned to Tunisia, he dropped dead of a heart attack. He was a very witty, funny man. My wife enjoyed talking to him, and we could use WhatsApp. He was enjoyable in conversations.   CJLPA : It means a lot that you built a bond with your clients during your representation of them: you know their story, you were moving forward with them, checking what was happening after they were released. I would encourage you to tell that story about the ‘Prison of Darkness’.   MD : I did bond with them. Most of the Guantanamo lawyers, if they stayed any length of time, we all bonded. There was nothing you could really do for your clients except, to some extent, be a human being and have a relationship with them, because they had no other relationships. They were in real isolation except for guards who were hostile to them. As years went by, we got closer and closer.   At the beginning, they were not friendly. In the beginning, Rafiq asked what I could do. I said, ‘Well, I’m a lawyer, and the Supreme Court says I can do various things for you’. He said, ‘How big is the Supreme Court’s army?’ Of course, I had to say, well, they do not have an army. He was not impressed, therefore, with the Supreme Court.   Over a period of time, I helped him just by keeping human contact. We could send him books to read, do various things, and develop some rapport.   I got a phone call about the ‘Prison of Darkness’. One of them was Human Rights Watch, who called me up and said, ‘You know, your client Rafiq was in the Prison of Darkness’. I said, ‘What is the Prison of Darkness?’ He said, ‘Oh, it is in Kabul, et cetera’. He did not describe it to me then. I said ‘Why are you telling me this?’ He said, ‘Well, we are trying to find out all the people who were held in the Prison of Darkness. We know he was there. We would like to know when he was there to fill in the gaps’. I said, ‘Okay, but I do not believe he was because he has never told me this. I have represented him for almost five years’. He said, ‘Believe me, he was there’.   Josh and I went down to talk to him. It was a fairly complicated time. He could have been more talkative. Finally, he came into the room.   See, one of the things that detainees can do is say ‘no’ to lawyers. It is one of the few things they can say ‘no’ to. So they say ‘your lawyer has come here from New York City. They are here. They would like to see you’, and they can say, ‘No, I am not going to do it’. And that would happen. That was very difficult. You could go down there and maybe have no visits. It is a long trip.   During the second part of our visits, he showed up. I was in another meeting with my other client—Lotfi Bin Ali—I came in late, and I walked in. My son said, ‘Dad, do not say a word, sit down, sit there and shut up’. I felt like he must have enjoyed that! He was no longer 17, so there must be something going on. Rafiq had said, ‘I will tell you everything I know about the Prison of Darkness until you ask a single question. As soon as you ask a question, I will not tell you anymore. I had not heard that statement. That is why Josh did not want me to start asking my questions.   The story Rafiq told was quite elaborate. First of all, we said, ‘Rafiq, why did you not tell us about this?’ He said, ‘Well, you did not ask’. I said, ‘Rafiq, I would not know to ask about a “Prison of Darkness” in Kabul’.   So he did tell us. Here is the story he told us the first time, and Lotfi confirmed it, because they were more or less overlapping in their time there.   The Prison of Darkness was in Kabul near the airport, sometimes called the ‘salt pit’. NPR found the location and described it, and they have shown it on television, but they described it in a less vivid way because it was already gone when they got there.   First, for some context, Rafiq’s story. Rafiq was from Tunisia and had gone to Germany, where he had been selling drugs, making money, and getting into problems. He had stashed a lot of money away. Finally, a group of people came to him and said, ‘Look, you are being a bad Muslim’. They made arrangements to send him to Pakistan, where he went. While he was in Pakistan, the US started bombing Afghanistan after 9/11. The Pakistanis did not want the Arabs there. So, he was pushed into Afghanistan and ended up in Kabul. When the US started bombing it, he had enough money to hire a guide to guide him through the mountains into Iran. As he said, that was not a great choice for a destination. He paid a certain amount of money to be taken there, and then his guide sold him to the Iranians for even more money.   He was held in five different Iranian prisons. I asked him about Guantanamo. He said, ‘Oh, there are many worse prisons. I have been in five war prisons in Iran’. I said, ‘Well, how did you get to Kabul?’ He said, ‘Well, what happened was the US wanted all of us who were captured to be given to them’. So Iran gave them—those many people who ended up in Guantanamo—over to Afghanistan, who then handed over them to the US. Officially, Iran was sent not intervening, but they were flown to Afghanistan by Iran.   He was brought in and put in the ‘Prison of Darkness’. You go in a big building. There is loud noise, very few windows, people shouting, music. They move you into another room. They get all your clothes, everything off there. That room is really like a hallway, it has a door into the hallway that gives some light. When you close the door, there is no light in the hallway. The door was open when he went in. They took his clothes off, and he was naked. They then closed the door and then took him through another door into a smaller room. While they took him in there, there was a bar going across, four feet up from the floor, in a five-foot-tall room, so you could not stand.   Once in the room, they were made to stand up with one hand, the other hand, or both hands locked to a pole, for an unknown amount of time, because there were no clocks, lights, or calendars. They were naked. They were quite upset that there was no way for any sanitation facilities. They would have to soil themselves. They stopped eating. They went through a very difficult time. Occasionally, they would be put against a wall with one hand in a ring just above their heads. They could sit and lean against it. Sometimes, they rotated their hands. He was here for about six weeks. About once or twice a week, he would be taken out of the room naked.   Rafiq described how he was taken into a room to be interrogated by a woman interrogator speaking fluent English, an American woman who was dressed, and he was standing there naked. It was incredibly difficult for all of them to be naked, even moreso in front of women.   He was at some point released and sent to the Bagram International Airport Prison. He was there when one of the detainees was killed. There is a documentary about it called Taxi to the Dark Side . He was brought as a witness, but he did not know anything.   I learned similar things from Lotfi Ben Ali. But the picture is the same. It is dark, cold, naked, no food, no ability to sit or stand for an unknown length of time.   CJLPA : How would you interpret the impact of international human rights laws and conventions on the legal framework governing the detention of individuals in Guantanamo Bay?   MD : Well, I am a law professor, so I would like to think that somehow the law mattered here. But it is not easy to see where the law mattered in any of this. Torture is illegal, no matter what the Department of Justice says. And they tortured: I have represented four people, all of whom were tortured. Two were held as high-value detainees, and all that means is the CIA wanted permission to torture them, not because they were important. Both of the clients I am talking about now—my Tunisians—were released. In theory, they were supposed to be free to go.   One of the things that I have been interested in is how basically benign these individuals were. The truth is, they were a mixture of people, some lost souls looking for something to do, some swept up at the wrong time in the wrong way. The clients I had, the government admits, never committed any hostile acts against the US or its allies, but they were captured for a variety of reasons.   Now, the real problem was America panicked. We were hysterical. We did not know what to do, so you reach out and think you have to do something. They grabbed people but did not even know who they had caught. One of our reports concluded that only 4% of the people held in Guantanamo were held because the United States caught them. Warlords, tribal chieftains, and local police in Afghanistan, Pakistan, and other places turned over 96%. The US never even knew the evidence against people because they were just being handed over.   When it comes to torture and interrogation, there are three models of torture involved. The simple one is the American, the Western world’s view of interrogation, which is that the US police and the FBI bring people in and almost always talk to them. This is what is called ‘relationship building’ by the FBI. They will come in at a certain date and bring people in to talk to them. Those people know what crime has been committed and where. They have reasons to want to ask the person questions, and they have a pretty good focus on what they are trying to find. They are pretty good at it. Much as I would not admit it in court, they do not do a whole lot of physical abuse.   Then you have military intelligence, which is really designed only to find out what is over the next hill. They want to have no ambushes, and so on. That works.   Then we invented something that said, let’s find out who are bad people who do not like the United States. That is all they were looking for because they did not know what else to look for. All of these people brought into Guantanamo were brought in by people who did not have any evidence because there was not any.   It is important to note that of all the 773 people initially brought to Guantanamo, there are about 15 left. All the others have been released. And there has been no problem. The single biggest indictment of Guantanamo is the fact that whenever people were released, they went back. Rafiq, when he was released, ended up in Tunisia. He was married, had a couple of kids, and was running a used appliance store in Tunis. All of them did that.   So they had the wrong people in Guantanamo from the beginning. That made things difficult for everybody. The problem was the torture once 9/11 happened. We decided we needed to find out who the people who did not like us were and what they planned to do to hurt us. The CIA were the ones trying to be the inquisitors, but they were humiliated by having missed 9/11, and they were desperate to prove how good and clever they were. But their problem was how to get information out, and there were a lot of meetings in September and October about who they could target. The debate was between the FBI and the CIA. The question was: who was the target? How could they deal with it? They all wanted to torture.   The problem is that everybody would like to have a magic bullet that will make people tell the truth. Of course, nobody trusts anybody. They end up feeling like they have to coerce. The American model ended up saying: We have got to find some way to find out the truth. As I have pointed out, the ancient Chinese, the Romans, the Florentines, Russians have tried to do that. The Nazis have tried to do that. The one problem they have is that it is not hard to make people talk. Everybody will talk. Al-Qaeda’s rule was: if you are caught, they are going to make you talk. But they needed to feel like they were doing something magical, having missed the opportunity. A lot of this was driven by the CIA’s desperate desire to find a way to discover truths through a magic secret that no one else has ever been able to do. That was a big part of it.   CJLPA : If we start talking about the techniques of torturing, we should also mention Dr James Elmer Mitchell, who developed a list of ‘enhanced interrogation techniques’. What distinguishes Dr Mitchell as the significant figure behind the Guantanamo Bay torture regime? What specific role did medical professionals serve in this context?   MD : Those are a lot of very good questions. Let me start by saying that it is not the Guantanamo Bay torture. It is the torture program. Much of the torture was done before  they got to Guantanamo. In fact, by the time people arrived in Guantanamo, the torture was virtually over.   Now, Guantanamo would like you to believe they never tortured there. They would like you to believe it was never, for any moment, a dark side. But they were tortured there. It was a dark side for a while, something that is never confirmed objectively, but all circumstantial evidence makes clear that was happening. It is clear Mitchell was in Guantanamo.   Let’s talk about Mitchell and the CIA. The problem is that Mitchell worked for the Air Force. He worked for a program helping retrieve downed pilots. He had set up a program called Survive-Evade-Resist-Escape. So they are supposed to survive, evade, and then try to resist and escape, and resistance is avoiding interrogation. Michell was running that.   The thing that Mitchell was doing was teaching Americans how to resist being interrogated. But he was in the Air Force. Let me stop to make one point clear. All of the Mitchell activities that are relevant to torture began the weekend Abu Zubaydah was captured. On 27 March 2000, the night before he was captured, the CIA had a meeting with PowerPoints and descriptions of what would happen, and their key role was that they would be the only people interrogating. They specifically did not want the military or the FBI doing it. That is kind of shocking because the FBI knew how to interrogate. Ironically, the CIA did not. The CIA is in foreign countries. You cannot catch somebody, take them to jail and ask questions. Generally, the CIA buys spies or uses electronic materials and rarely interrogates them. When they did, like in Vietnam, they did terrible things that were also pointless.   The CIA hired Mitchell on 4 April. It is remarkable: on 27 March, they did not want the Defense Department or the FBI involved. By 4 April, they hired a former DOD person who was in charge of helping people resist interrogations. The Deputy Director of the CIA at that time was asked why they did it. And he said, ‘Well, we were in unchartered waters. We needed help’. This is pretty staggering if you realise that three days earlier, they said, ‘We do not want any help from anybody’. Then they admit, four days later, that they did not know how to do it. It may have been the first and maybe the last truthful thing they said about this.   The techniques that he developed were reverse engineering of this air force program. Most of the torture program after Abu Zubaydah was captured was a bureaucratic fight between the FBI and the CIA, and not enough has been made of this. Zubaydah was the first person the CIA ever caught in this area of the world. They shot him, and he was almost dying. The FBI agents were there. They were the first people to interrogate him and talk to him, partly because they had some Arab-speaking agents, whereas Mitchell is anything but an Arab. The CIA began to box out the FBI over and over again, in a variety of ways. The FBI was only around when Zubaydah was seriously injured, and needed some attention from people he was more comfortable with. He was being interrogated in April after he was captured, but most of the month, he was very ill. Then, in May, there was some further interrogation. On 2 June, the FBI quit. They pulled out.   One of the reasons that Mitchell and Bruce Jessen developed their techniques was not because they knew they worked. Their techniques had two components: they had to be so harsh that the FBI agents could not use them. Because the FBI is regulated by domestic law in the United States and anywhere in the world, they needed techniques that were too horrific for the FBI to be able to use. Once they permitted those, the CIA could use them, and the FBI would not. So, this dispute between agencies is crucial here.   When the FBI pulled out on 2 June, Abu Zubaydah was never interviewed again by the CIA or the FBI until he was tortured in early August. He was put in isolation in June until 4 August. The justification for torturing him was that he was claimed to be aware of imminent attacks on the United States, and that they therefore needed to get the truth from him quickly. They got that permission on 4 August, but of course, two months had gone by when they never even asked him a question, so it is quite clear that the techniques were not designed to get information from him.   That is understandable because the FBI has reports of the interviews in April and May, where he did not know much. The CIA eventually had to admit, when the Senate Select Committee on Intelligence established certain facts, that Abu Zubaydah had never been in Al-Qaeda, never run an Al-Qaeda camp, committed no terrorist acts, and attacked no one. However, he was the first one they caught, and they needed permission to use these techniques. If they did not have permission from the Justice Department to use these techniques, there was a very good chance the FBI agents would report them for using these techniques, because they were crimes were under American law.   In late June and early July, the CIA was asking the Department of Justice to agree not to prosecute CIA agents for the acts they had already done, as well as the acts they were planning to do. The CIA, with Mitchell, worked out a series of techniques that nobody could be permitted to use without permission from the Department of Justice, and indeed, the FBI could not, so there could be no competitors. All they needed to do was convince people that these harsh techniques were very successful because they could get information out.   Based on that, they put together a series of lies in which they claimed they had found things from Abu Zubaydah. The Senate Select Committee of Intelligence, in its mammoth report of 556 executive pages, which cites Abu Zubaydah 1100 times, made it clear that the CIA got nothing the FBI had not already gotten. So before they sent him in to be tortured, they knew everything there was to know.   My students ask me the question: How can it be that people wanted to invent a torture system to torture somebody who they knew did not know anything? That question is the hardest question I ever have trying to publish our materials. It is understandable why anybody, and certainly Americans, would be so horrified to find out that they picked somebody who was not an Al-Qaeda terrorist and got permission to torture him, in order to get information that the torturers knew he didn’t have. And the answer was simple: they wanted permission to use these techniques on other people, and they wanted to be sure that they could not be prosecuted for the techniques they had used. That is how the torture program began. In this sense, it does not have a lot to do with Guantanamo. One of my discoveries going through research on Guantanamo was that terrible things were happening everywhere else in the world. Guantanamo could not be worse if you looked at it, but it turns out other places could be far worse.   CJLPA : How would you describe the psychological and emotional toll on the detainees held in Guantanamo Bay? You previously told us that they sometimes thought it was not the worst prison they had been in, but the conditions there were far from humane.   MD : We are talking about Guantanamo. As the world knows, Poland had to pay hundreds of thousands of euros because they allowed the US to torture people there. Lithuania is the same way: countries that the European Court of Human Rights did not cover.   So, first of all, the worst torture always happened outside of Guantanamo. The worst of the worst in Guantanamo were brought in September of 2006. All the harm had been done then, and they were badly tortured. I do not mean them just being held in isolation. They were chained and could not walk. I have never seen my clients take a step. I only see them chained to the floor when I go into a room. It is hard to measure how isolated it is.   The torture we described was horrific, but it was constant. For instance, they were held nude almost all the time in brightly lit, white rooms. They were nude with loud music and air conditioning, and it was cold. Intermittently, they would be sprayed with water. The Department of Justice approved none of these things. These were inventions of the young men, thinking they could find a magic secret.   People should look at the report, which includes not only 40 drawings by Abu Zubaydah but also his descriptions of each of them. The government probably wishes we had not been able to get them. But we did. It is the history of what torture was, not the history of the program that was approved, because here was no connection. There were three or four pictures in there when somebody had been drowning in wooden boxes, put underwater and held there. They could barely breathe, and would have to urinate on themselves.   They would have all sorts of things. There were threats of anal rape. The Department of Justice approved none of these things. These were just people out there trying to find some new gimmick, Mitchell and Jessen primarily. Of course, there were other people, but we do not know their names. So, Mitchell ran the whole thing. He has made at least $100 million for this project, and the CIA was happy to pay him so they could control who the interrogators were and what techniques could be used. Now, the CIA is stuck, having failed to get useful information.   America, for the first time, officially and formally created a torture program. It is very difficult to absorb. For 15 years, I have taught many students who do not believe it when they walk in. When they come out, they are shocked.   What is the effect on those tortured? Sleep—they do not sleep. Some have gastrointestinal problems, some have headaches, and some simply have anger issues. It would be hard to imagine the emotional and physical problems that they do not have. You cannot just do that to people for six years or more.   Imagine 35-year-old people having broomsticks shoved near their anus, making things like they are about to be raped and never knowing if it was going to happen or not, whilst being chained to the floor with women watching, spraying water on them all the time in cold rooms.   Mitchell’s trick was called ‘learned helplessness’, which psychologists are aware of as a technique. It’s not a rational technique in this context. He wanted to make them feel so helpless that they could not resist telling the truth. The problem was that they had already told their truths over and over again. They wanted to find more truths that did not exist. The ‘learned helplessness’ comes down to sleep deprivation. If you look at each of the torture techniques, where they are confined in a small box, where they are put in a little cage, where they are being sprayed with water, or people threatening anal rape or being banged against walls and hit—all of the things they did, they were done consecutively and constantly. For the first 17 days Abu Zubaydah was held after their permission to torture him, they constantly went through all of the techniques, one after the other. They did not stop and ask him questions that you would think they would do. They did not do that. They were just trying to break him, so they could get him in a state where it would be easy to get him to talk.   For 17 days, 24 hours a day, they were doing this to him. So even what they got out of him would have been incoherent and irrational, and all of them agree, they would easily have talked. None of them believed you could resist it. It is impossible. You cannot resist somebody hurting you in some way of that nature. So, how much harm did it cause? I would not want to mention it, but I cannot measure it. It is hideous. That is horrible.   CJLPA : What were the primary legal and practical issues faced by attorneys presenting detainees at Guantanamo Bay, and how did you overcome them?   MD :   There were no legal challenges to talk about because there is no law in Guantanamo. They have a right to a habeas corpus  lawyer, but people cannot win habeas corpus  cases because even if you win your case, the government can still prevent your client from being released to another country. There is no victory possible. Everybody released from Guantanamo has been released through political issues, some human rights organisations, countries wanting their citizens back, various things like that.   So, I do not want a misunderstanding: nobody should believe the legal system helped get anybody out of Guantanamo. They may have helped them see lawyers, but the system did not do anything, the system as we understand it.   The problem is dealing with people who are so foreign to you. When I was going down there the first time, I remember telling somebody, ‘You know, when you put a bunch of guys together in a room, and they do not know each other, what do they talk about?’ My friend said, ‘Well, we talked about politics, sports, sex, and religion’. I said, ‘What else is there?’ Hell, I’m about to meet a fundamentalist Muslim, and I cannot sit there and talk to him about religion. I cannot tell him about politics. I do not think I am going to be talking to him about sex. Maybe it is sports, but I do not even know what sports they have. So we started not knowing anything, but it turned out they were like everybody else: they wanted to talk about sports, politics, religion, and sex. It is the same there. It is a universality that continues, but it was very hard to establish a relationship.   They did not think you could help them. And we could not. All we could end up doing was having a relationship with them. Slowly, with the State Department’s help, you could find somebody to get out little by little. But the legal system should not get any credit for getting anybody out or stopping torture.   CJLPA : How, if at all, did Guantanamo Bay impact the US legal system?   MD : I do not know if it has any effect on the legal system. The most useful things were probably human rights organisations trying to use political power. Lawyers, with some political power, were quite effective at getting people out. I would have said that an informal, low-key political conversation about it would do it; it would be very hard to see how the legal system did it.   I think one problem is that it has damaged a lot of lawyers’ belief in the system. I have come to conclude that every country if it panics and gets scared, does stupid, crazy, and occasionally mean things. America panicked and was scared, and after 9/11, did many horrible things, thinking it was a good idea. Panic, fear and hysteria do not bring out the best in people. Every country when they are cornered like that, will do that, and we did.   I do not know, but I do feel like, slowly, people are looking back, saying, ‘We sure do not want another Guantanamo’. This kind of thing will not happen. But, in the Second World War, we locked up Japanese people on the West Coast, and we said that would never happen again. There is always something that will never happen again because it is a pretty ugly world out there. People just keep working. The legal system works well when the world and the system itself are going well. When it gets all blown up, the legal system is no better at stopping this than anything else.   CJLPA : People largely do not talk about Guantanamo Bay anymore. How do we make American citizens understand history, to ensure that these tragic events remain in the past and do not get repeated?   MD : Well, we have been writing reports about Guantanamo and torture. They have got some attention. We have collected some data, people have been looking at them, and PhD dissertations are going through materials that have been collected. I think there are a whole lot of facts out there that people are paying attention to. I do not know if it is enough, but it is significant. All we can ever do is just try to get the truth out and help people learn. I do not think there is a silver bullet to keep America from doing terrible things if it is scared and attacked again, either. That is true of every country.   CJLPA : Many thanks. This interview was conducted by Angelina Spilnyk, a graduate of the Ivan Franko National University of Lviv, Ukraine, in 2022 with a major in International Public Law. Alongside her position as a Legal Researcher at CJLPA, she is pursuing a Master’s in Maritime Law at the University of Southampton.

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

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