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Singapore-based corporate darling Hyflux made sure that it ticked all the right boxes when it came to governance and regulatory compliance. But its recent fall from grace is a cautionary tale on how management styles, charismatic CEOs, and directors’ personal interests can work against even the toughest corporate governance framework.   Grit and Persistence: The Rise of CEO Olivia Lum   In her 2015 speech to students at the National University of Singapore, Olivia Lum not only extolled the virtues of grit and hard work, but revealed some very personal details. The founder of much-lauded water treatment company, Hyflux, recounted how, in the early days, she would worry about paying next month’s rent.   It was a difficult, decades-long, journey that started in 1989, when Lum sold both her house and car to start Hyflux as a sales agent for large multinational companies. In 2003, Hyflux was listed on the Singapore Exchange (‘SGX’). In 2006, UK-based Global Water Intelligence recognised it as Water Company of the Year. Over the years, Lum’s personal fame also rose. From 2002 to 2005 she was a Nominated Member of Parliament. In 2011, she was named the EY World Entrepreneur of the Year.   Yet a decade later,   in November 2022, Lum, along with a former CFO and four independent directors, were charged with violations of the Securities and Futures Act[1] for non-disclosure of information relating to Hyflux’s sale of Tuaspring, its integrated water and power plant.   The Appearance of Corporate Governance   Hyflux certainly appeared to be at the forefront of Singapore’s regulatory compliance regime.[2] Its annual reports made the required disclosures on the sixteen principles of the Code of Corporate Governance (the ‘Code’). With the exception of a departure from Principle 3 on the separation of the Chairman and CEO roles, there was nothing noteworthy about the disclosures. The company also had an internal Code of Conduct and Ethics. In 2006, it published its first sustainability report—in accordance with Global Reporting Initiatives—a year ahead of when such reporting was made mandatory.   As a prominent business personality, Lum gave many interviews over the years where she pointed to corporate governance as one of Hyflux’s core values.[3] No one in Singapore’s business community could have expected the circumstances of the Tuaspring sale.   The Tuasping Debacle   In 2016, Hyflux decided to sell Tuasping, but couldn’t complete the sale by December 2017. Nevertheless, Tuasping remained on the balance sheet, and on March 2018, a KMPG audit report showed a healthy liquidity position.   Just two months later, Hyflux announced that it had run out of cash to pay creditors. An impairment loss of SGD 916m was recorded in 2018—the true extent only confirmed when the Public Utilities Board valued it at a negative purchase price and took over the business at zero dollars. Retail investors suffered losses on perpetual capital securities that Hyflux had issued.[4] In November 2020, Hyflux was placed under judicial management and, two years later, Lum and other executives were charged with violations of the Securities and Futures Act. Lum was also charged under the Companies Act for Hyflux’s non-compliance with accounting standards. In May 2023, three KPMG auditors were issued with orders by the Public Accountants Oversight Committee.   But to really understand how and why Hyflux got to this point, it can be instructive to look over the preceding years—marked by an exodus of senior executives, an uneven balance of power on the board, utilitarian-style leadership, a lack of director independence, and a toxic internal culture.   A Dominant CEO   In 2018, Hyflux’s key management committee consisted of five persons (see Appendix 1). Between 2013 and early 2014, Hyflux’s CFO, COO, and Deputy CEO, all resigned. Analysts at the time noted that the stock market hardly reacted to the resignations—an indication that the market based its evaluation of management quality solely on Lum.   With dual roles as chairman and  CEO, it’s undeniable that Lum had an overbearing influence on the management team. The arrangement was a departure from Principle 3 of the Code, but the board explained that vesting the two roles in Lum ‘provides the Group with strong and consistent leadership’.[5]   Using Finkelstein’s model[6] of power dynamics, it is possible to score key management personnel on the dimensions of structural power, ownership power, expert power, and prestige power. Applying this framework to Lum places her as a dominant figure in the management team—with the highest power score by a large margin​ (Appendix 2). On the one hand, this placed Lum as a visionary who could chart the company’s course. On the other hand, domineering CEOs often lead to conflict avoidance and cognitive blindness, which results in weak boards.[7]   Hyflux did appoint a Lead Independent Director to address the balance of power issue in accordance with the Code. However, the company failed to strengthen its structure for risk and controls where the Code was silent. For example, it didn’t have a chief risk officer, and its Risk Management Committee met only once in 2017.[8] Also, the Head of Internal Audit was not part of its broader management committee.[9]   Lack of Board Independence   The board of directors is responsible for supervising management. In Singapore, a combination of statute[10] and general law imposes duties on directors. The Singapore courts have stated that ‘[t]he ‘interests of the company’ is not just profit maximisation. Neither is it profit maximisation by any means’.[11] In a survey, close to 91 percent of Singapore directors agreed that directors are ‘permitted to take into account the interests of stakeholders other than shareholders when performing his functions’.[12] Generally, research indicates that boards function more effectively when they are independent of management.[13]   The Hyflux board comprised Lum and seven independent directors, including lawyers and finance professionals (See Appendix 3). The proportion of independent directors far exceeded the requirements of the Code. However, there were questions about whether the board was truly independent.[14]   Over the years, some of these independent directors had other relationships with the company that made them non-independent. Until 2005, Gay Chee Cheong was deemed a substantial shareholder.[15] Between 2013 and 2015, Gary Kee was an executive director. Until 2010, Christopher Muragasu was employed as senior vice-president of corporate services. Between 1996 and 2006, Muragasu’s sister held a number of positions, including COO, Deputy CEO, and as a senior advisor. Teo Kiang Kok’s brother was vice-president of business development between 2005 and 2008.   Between 2005 and 2010, Kok’s law firm, Shook Lin & Bok, provided legal services to Hyflux and earned fees totalling SGD 364,000. Lee Joo Hai, a partner at professional services firm BDO LLP, had similar potential conflicts of interest. Between 2005 and 2008, BDO Raffles provided internal audit services to Hyflux, earning fees amounting to SGD 186,000. While this was below the SGD 200,000 annual threshold that determines a director’s independence, the perception of a potential conflict of interest remains. Kok and Hai also served together on two other boards. The Code is silent on such interlocking directorships, but research has identified them as a threat to directors’ independence.[16]   The Impact of Utilitarian Morality   The academic literature indicates that corporate governance regulations tend to be informed by the utilitarian foundation of morality—which aims to produce the best consequence for the greatest number of persons—while ignoring deontology and virtue ethics.[17] Deontology concerns fundamental duties that should be followed regardless of consequences. Virtue ethics emphasises traits such as honesty and diligence.   However, for directors, a utilitarian application is far from straightforward. The interests of multiple stakeholders need to be considered when making decisions in the ‘best interest’ of the company—and ‘best interest’ is not limited to shareholders’ interest in maximising profits. For example, the risk-reward profiles of shareholders and perpetual note holders might be different when the company enters a new market. Also, for a company with a strong CEO who also has substantial shareholdings and a board that is arguably less independent than it looks, what is in the ‘best interest’ of the company will depend on the CEO’s vision and management style.   When a CEO applies corporate governance rules based mainly on utilitarianism, the rules are simply treated as conditions to be fulfilled in order to pursue bigger corporate goals—without a deeper regard for the reasons behind the rules. In this scenario, director’s duties are not linked to categorical imperatives, but are a means to an end. There are concerns that utilitarianism alone might not promote behaviours in line with ethical and societal norms.[18]   Lum’s management style was clearly aligned with utilitarianism: results alone were important, regardless of how they were achieved. When, for example, Hyflux was preparing a bid to run Singapore’s first water treatment plant, Lum told staff—who spent months working nights in preparation—that, ‘This is the only chance we can make it big’. And when speaking about Hyflux’s values, such as its ‘can-do’ spirit, she said that they are critical because they ‘helped us win contracts and deliver projects’.[19]   A Toxic Company Culture   Employee reviews can provide an insight into company culture—which can in turn contribute to poor ethical decisions by management. Glassdoor reviews of Hyflux reveal employee concerns about a ‘toxic’ culture—‘top-down’, not receptive to feedback, involving ‘micro-management’, and ‘fast-paced’ .[20]     A top-down approach can deprive employees and directors of their voice, and consequently personal responsibility for their actions. Modern supporters of utilitarianism accept that ethical decisions need to be agent-centric—that the actor must be themselves rather than a neutral third-party observer thinking in the abstract.   Also, a fast-paced environment that does not value individual opinion is not conducive to deliberate thinking that is less vulnerable to biases—what Kahneman calls System II thinking.[21] Research indicates that people make more rational decisions when slow, deep thinking is activated.[22]   Finally, when individuals are given space to be themselves, they have more capacity to process their emotions and reach a more balanced view of ethical issues. Research shows that emotions are related to a deontological way of thinking.[23] In the classic Fat Man trolley problem, while pure, rational calculation may lead us to push a man onto the tracks to save more lives, it is emotions that hold us back from hurting him with our own hands. Emotions can be a counterforce to utilitarianism, which is inadequate by itself.[24]   Conclusion   The Hyflux case clearly shows that corporate governance can be complied with on paper, and publicly, but its actual application can be difficult to evaluate. Management and media might paint a picture of a company guided by purpose and values, but this can differ from employees’ reality.   It’s critical to understand how  management are making ethical decisions, both in the normative and the behavioural view, their personal and outside interests, and how corporate culture can be shaped to nudge them into making better decisions. Andrew Leo Andrew Leo studied accounting at the National University of Singapore and University of Cambridge. Based in Singapore, he currently works as an accountant in a global asset management company and serves as vice chairperson of the audit and risk committee of a large charity. He is interested in internal controls, corporate governance, and leadership. Appendix 1: Key Management Personnel (2018) No. Name Title 1. Olivia Lum Executive Chairman and Group CEO 2. Lum Suat Wah Group Executive Vice President and CFO 3. Wong Lup Wai Group Executive Vice President and Chief Operating Officer 4. Cheong Aik Hock Group Executive Vice President and CEO of Tuasping 5. Chang Cheow Teck Group Executive Vice President, Operations Appendix 2   Note: Scores are on a simplified basis based on publicly available information.   Appendix 3: Board of Directors (2018) No. Name Role Committee(s) Profession 1. Olivia Lum Executive Chairman and Director Nominating, Investment CEO 2. Teo Kiang Kok Lead Independent Director Audit, Nominating, Remuneration, Risk Management Lawyer 3. Lee Joo Hai Non-Executive Independent Director Audit, Risk Management Accountant 4. Gay Chee Cheong Non-Executive Independent Director Audit, Nominating, Remuneration, Investment Investment Management 5. Christopher Muragasu Non-Executive Independent Director Nomination, Remuneration, Risk Management Formerly Hyflux’s senior vice-president of corporate services 6. Simon Tay Non-Executive Independent Director Risk Management, Investment Lawyer 7. Lau Wing Tat Non-Executive Independent Director Audit, Risk Management Investment Management 8. Gary Kee Eng Kwee Non-Executive Independent Director Investment General Management, Consultant; Formerly Hyflux’s Executive Director for Finance and IT [1] Securities and Futures Act 2001. [2] Singapore’s corporate governance framework comprises rules found in the Companies Act 1967, the Securities and Futures Act 2001 and, for companies listed on the SGX, the Listing Manual and guidelines set out in the Code of Corporate Governance. The Code is based on the ‘comply or explain’ principle that is set out in the Financial Aspects of Corporate Governance report (the Cadbury Report), and adopted in the Combined Code (now known as the UK Corporate Governance Code) in 1998. [3] ‘The boldness to dream’ Leaders Magazine, Inc. (January 2012) < https://www.leadersmag.com/issues/2012.1_Jan/ROB/LEADERS-Olivia-Lum-Hyflux-Ltd.html > accessed 12 August 2022 [4] Amir Yusof, ‘“We have not lost faith”: Hundreds of Hyflux investors gather to express concerns at Hong Lim Park’ ( Channel News Asia , 30 March 2019) < https://web.archive.org/web/20211205091648/https://www.channelnewsasia.com/singapore/we-have-not-lost-faith-hundreds-hyflux-investors-gather-express-concerns-hong-lim-park-896896 > accessed 5 December 2023. [5]  Hyflux Limited, ‘Hyflux Ltd Annual Report for FY2017’ (2018) < https://links.sgx.com/FileOpen/Hyflux%20Ltd%20Annual%20Report%20for%20FY2017.ashx?App=Announcement&FileID=498672 > accessed 12 August 2022 . [6] S Finkelstein, ‘Power in top management teams: dimensions, measurement, and validation’ (1992) 35(3) Academy of Management Journal 505-538. [7] E Heemskerk, K Heemskerk, and M Wats, ‘Conflict in the boardroom: a participant observation study of supervisory board dynamics’ (2017) 21 Journal of Management & Governance   233-263. [8] Hyflux (n 5). [9] ibid. [10] The Companies Act requires directors to be honest and diligent in carrying out their duties. Singapore courts have indicated that these statutory duties are based on general law expectations for directors to act bona fide in the interests of the company ( Ho Kang Peng v Scintronix Corp Ltd ) and exercise due care and diligence ( Falmac Limited v Cheng Ji Lai Charlie ). [11]  Ho Kang Peng v Scintronix Corp Ltd  [2014] SGCA 22. [12] P Koh and HH Tan, ‘Directors’ duties in Singapore: law and perceptions’ (2019) 14(1) Asian Journal of Comparative Law 37-63. [13] James D Westphal, ‘Collaboration in the Boardroom: Behavioural and Performance Consequences of CEO-board Social Ties’ (1999) 42(1) The Academy of Management Journal 7-24. [14] Kenneth Cheng, ‘Hyflux’s fall from grace: What went wrong’ ( TODAY , 23 May 2018) < https://www.todayonline.com/singapore/hyfluxs-fall-grace-what-went-wrong > accessed 12 August 2022; Mak Yuen Teen, ‘Hyflux’s board ticked boxes but let down stakeholders’ The Business Times (24 May 2019) < https://www.businesstimes.com.sg/opinion-features/columns/hyfluxs-board-ticked-boxes-let-down-stakeholders > a ccessed 12 August 2022 . [15] Mak (n 14). [16] ibid. [17] Abhijeet K Vadera and Gerard George, ‘The morality of doing business purposefully’ SID Directors Bulletin (2018) < https://www.sid.org.sg/images/PDFS/Publications/DirectorsBulletin/DirectorsBulletin_4Q2018.pdf > accessed 12 August 2022. [18] ibid. [19] Hyflux (n 5). [20]  Hyflux employee reviews about senior management ( Glassdoor , 2023) < https://www.glassdoor.sg/Reviews/Hyflux-senior-management-Reviews-EI_IE39115.0,6_KH7,24.htm > a ccessed 12 August 2022 . [21]  Daniel Kahneman, Thinking, Fast and Slow (Penguin 2011). [22]  ‘Gained in translation’ The Economist  (17 May 2014) https://www.economist.com/science-and-technology/2014/05/17/gained-in-translation  accessed 12 August 2022 . [23]  Norbert Paulo, ‘Law, Reason, and Emotion? The Challenge from Empirical Ethics’ (2017) 103(2) Archives for Philosophy of Law and Social Philosophy 239-259. [24]  Arthur Dobrln, ‘Three approaches to ethics: principles, outcomes and integrity’ Psychology Today (18 May 2012) < https://www.psychologytoday.com/us/blog/am-i-right/201205/3-approaches-to-ethics-principles-outcomes-and-integrity > accessed 12 August 2022 .

Abstract   The authors, faculty members at Northeastern University and Boston University, highlight the shifting values and priorities of their Millennial and Gen Z students as they prepare for work in the innovation and entrepreneurship fields. In their classes with both undergraduate and graduate students, they explore the rich intersection between creativity, business, and social impact.   In alignment with worldwide trends, their students want to launch ventures that are meaningful, economically viable, and socially responsive to the challenges of our time. As witnesses to increasing economic disparity, the effects of climate change, political upheaval, culture wars, and pandemics like Covid-19, these generations see clearly that business models based only on profit are outdated. The next generation is demanding a shift in the profit-driven paradigm toward one that is inclusive and responsive to a triple bottom line: People, Planet, and Profit.   Gen Z and Millennial students want to solve problems that truly matter while honouring their individuality; they want to make a positive impact in their communities in a way that is also financially sustainable.   The authors share case studies that emphasize the importance of integrating their four part Make/Care/Strategize/Implement (MCSI) Framework into the fabric of organizations from the visioning stage to implementation:   MAKE like artists CARE like activists STRATEGIZE like entrepreneurs IMPLEMENT like organizers   By implementing the MCSI Framework, the next generation of entrepreneurs will have the building blocks necessary to embrace a more holistic, sustainable approach to business that lays a foundation for a lifetime of meaningful, impactful work.   Bringing Meaning to the Marketplace   Let us paint a picture for you. Or better yet, we will share our story in three acts:   Act 1: Individuals   We see a need for the next generation of students to gain entrepreneurial skills to develop meaningful ventures for the future. Starting with artists and arts administrators, and branching out across university silos to incorporate students from across disciplines, we create graduate and undergraduate courses and introduce the Make/Care/Strategize/Implement (MCSI) Framework.   Act 2: Community   We host a symposium, Art and Ideas in Action: Arts + Business + Social Impact,  utilizing the MCSI Framework, and confirm that imaginative thinking, strategic partnerships with key stakeholders, and clear measurable outcomes are essential to inspire meaning and hope during complex times, not just for students but for broader community-based audiences. This symposium is a catalyst for what is now the largest conference for students interested in innovation and entrepreneurship, IDEA  Con , hosted annually by Innovate@BU, Boston University. [1]   Act 3: Society   With the rapid advancement of artificial intelligence and a host of other challenges, we recognize the importance of the integrated MCSI Framework to develop a human-centered economy. Through intentional, strategic integration of creativity, higher education can take the lead in providing a clearer sense of purpose and promoting innovative solutions amongst its students.   Act 1: Individuals   The Beginning: Teaching Professional Skills to Artists   Art students (visual, performance, and music) spend thousands of hours perfecting their craft with little space to gather the tools they need to market their work. Many art students graduate with highly developed artistic expertise in their chosen disciplines but lack the entrepreneurial skills necessary to create the impact they want, and arguably the impact society needs.   When we were asked to co-create an experimental course called Cultural Entrepreneurship  within the graduate Arts Administration program at Boston University, we welcomed the challenge to teach artists and arts administrators how to reimagine new revenue streams that support their creative expertise and competencies. With backgrounds in   arts, social impact, political organizing, and entrepreneurial consulting, we as instructors emphasized a practical and experiential learning-based approach.   As faculty members, we are committed to unlocking students’ creative and entrepreneurial mindsets, and our courses help students to recognize their potential to be change makers. We challenge our students to create vibrant, economically viable ventures that extend from their visionary entry points as artists and arts leaders. Introducing our students to the vocabulary of startups, from Minimum Viable Product (MVP) to Return On Investment (ROI), we teach the distinctions between various business models, including nonprofit, for-profit, and benefit corporations. While this is basic information for business students, it is rarely talked about in art schools.   Cultural Entrepreneurship as an academic discipline has had a 20+ year history in the UK, drawing international attention with the publication of John Howkins’s book, The Creative Economy: How People Make Money from Ideas . [2] Nonetheless, in the context of Boston University’s arts administration program, the introduction of this class in 2013 was groundbreaking. Since the course began, we have taught thousands of students, many of whom continue to remain in contact with us. As of 2023, over 40% of those surveyed have launched their own ventures, as both entrepreneurs and intrapreneurs, at the intersection of Arts & Culture, Business & Technology, and Social Impact.   We treat our course as an incubator for real-world startup ideas, taking students through ideation, testing, and pitching their new ventures. Our students are excited and energized by this learning-by-doing approach. For many, this is the first time they are learning about the workings of the rapidly evolving creative economy, along with the challenges and opportunities for art entrepreneurs.   Our students are growing and thriving, using words such as ‘transformative’, ‘exhilarating’, and ‘eye opening’ to describe their experiences in our class. We have tapped into a desire for a new definition for success: one that includes financial viability, but also creative engagement and social relevance. This makes honing a creative, entrepreneurial mindset an important professional skill. Our primary focus when we first started in 2013 was to teach artists and arts administrators the importance of keeping an eye on the broader markets and communities while also fulfilling their individual creative purpose. We created a safe community-oriented classroom that encouraged students to get comfortable taking risks while developing their entrepreneurial skills and perfecting their artistic crafts so that they could generate their own economic opportunities.   While we started by teaching artists the skills and language of the innovation and entrepreneurship world, our interdisciplinary approach has now expanded to students from various disciplines. We use a framework that teaches a creative mindset to serve a broader population.   It was in these first classrooms that our MCSI Framework originated:   MAKE LIKE ARTISTS:  While creativity is inherent in every individual, we help students access it and integrate creativity into their day-to-day lives. Using the Creative Re/Frame M.A.K.E. Framework we help students get Messy to activate idea generation, be Awake and Aware of opportunities around them, Keep going through their challenges and Enjoy the process.   We offer our students the tools and techniques to foster a creative mindset, unlocking imagination to envision new strategic and innovative solutions.   CARE LIKE ACTIVISTS:  Caring for the larger community makes for better business and for deeper personal fulfilment. Using a Creative Re/frame C.A.R.E Framework, we help students hone in on the powers of Curiosity, Awareness, Responsibility, and Empathy and connect these elements to unique organizational value propositions.   STRATEGIZE LIKE ENTREPRENEURS:  Using design thinking, we empower our students to develop their ventures step-by-step. By right-sizing and strategically structuring business models, students can successfully set specific, measurable, and achievable goals.   IMPLEMENT LIKE ORGANIZERS:  We help students translate ideas into action. Urgency, tasks, timelines, and measuring impact are crucial for success. We stay highly focused on final products aimed at the systemic change needed to create long-lasting impact.   CASE STUDY: BENDADA MUSIC FESTIVAL [3]   Inês Andrade, a doctoral candidate in performance classical piano at Boston University’s College of Fine Arts, traveled from Lisbon to her family’s home of Bendada, Portugal. While she had driven the mountainous windy roads countless times in her life, this year was different. She had been asked to perform a Christmas concert in the newly inaugurated Casa da Música da Bendada , a well-appointed music school built with funding from a European Union grant. The building was beautiful; its soundproof practice rooms and a modern concert hall overlooked the valley below. But aside from the Christmas concert, the hall was largely empty the rest of the year. The town of Bendada has had a long history with music, starting in 1870 when the Sociedade Filarmónica Bendadense  was established. This musical history, combined with the economic demise of the region from the 1970s, got Inês thinking. She was performing in a gorgeous music hall, and she realized this was an opportunity to create something more. The seed for the Bendada Music Festival was planted. ‘I always knew I wanted to do more with music than just perform concerts’, she says. ‘I wanted to create something that could make an artistic and economic impact that could help revitalize the whole community. My community’.   As a committed artist dedicated to piano from an early age, Inês had the artist’s discipline to finely hone her expertise, connecting to a purpose that she then shared with others. Inês came to the first part of the MCSI Framework (Make Like an Artist) from an authentic entry point. As an artist, she channelled her creative practice to an intention that fuelled and inspired both herself and others.   Back in Boston for her final semester prior to receiving her doctorate, Inês enrolled in the Cultural Entrepreneurship class. Inês used the course to workshop her vision and build skills using the MCSI Framework to:   Make Like an Artist by building on her credibility as a well-established musician. Care Like an Activist by owning her authentic connection to the town of Bendada, its long history as a music centre, and undertaking research to more fully understand its current plight. Strategize Like an Entrepreneur by networking to build a sustainable funding model. Implement Like an Organizer by partnering with the Portuguese Secretary of Economic Development, Portugal State Tourism office, and the Boston University community.   Integrating the four pieces of MCSI, Inês was able to turn her idea into a viable international program that has had a quantifiable impact in the region and beyond . But she knew she couldn't do this alone, nor did she want to. She formed a formidable partnership with a fellow doctoral candidate in performance piano, Edoardo Carpenedo. Edoardo took the same graduate class the following year so they could have a common language and vision as they prototyped their venture they founded together, the Bendada Music Festival.     In the summer of 2024, the Bendada Music Festival completed its 9 th  year with a record number of students, ranging in age from 14 to 22 years old. Music teachers from around the world, and corporate, community, and governmental partners, all gathered to enjoy captivating concerts. Thousands of audience members from local communities came together in unique concert venues ranging from 12 th -century castles to 16 th -century churches. The local community participates in the Bendada Community choir, hosts a folk festival in the town square alongside the music festival, and houses students in individual homes. Along with the hundreds of students and instructors who hone their skills through the festival each year, Bendada citizens participate as musicians and concert goers, and restaurants and hostels benefit from the increase in tourism and revenue. Act 2: Community   The Ripples: Recognizing the Need for MCSI in a Larger Context   As impact-oriented educators as well as community-based professionals we wanted to share our learnings in the classroom with a larger audience. We set out to create an opportunity for our students to network with innovators within the corporate, nonprofit and political arenas, as well as to share our resources and learnings with the broader Boston community so that it was not sequestered to the campus. We understood the importance of igniting the power of interdisciplinary partnerships to scale the impact of what we were creating in the classroom. Building on the MCSI Framework, we partnered with the BU’s College of Fine Arts, Questrom School of Business, and the BU Arts Initiative to introduce a unique, creative public symposium: Arts & Ideas in Action: Arts + Business + Social Impact .   Tapping into our own collective creative mindset to make  our vision a reality, we cared like activists, reaching out to cross-disciplinary stakeholders to work with us to infuse energy, hope and purpose into a welcoming space. We strategically  built cross-disciplinary alliances across the campus as well as the city to create an impactful agenda. And we  implemented  a rich, community-based, inclusive conference filled with energy, hope, and measurable outcomes at Boston University on 11 November 2016.   The theme of the conference was optimism and hope. We planned to model how the arts and business communities could work together toward a common good, despite being unlikely bedfellows. We incorporated our students into conference planning through an Ambassador program and invited our communities from outside of the university. The planning committee agreed that it would be best to hold the event after the US Presidential election. The 11 November 2016 date seemed ideal—the event would happen toward the end of the semester but not too close to the holidays. Three days before the symposium,   surprising election results revealed a very divided country. And as any good organizer, innovator, entrepreneur, or improv actor knows, our job was to remain nimble while working with dynamic variables.   After the US Presidential election, the direction of our symposium shifted from confidence to confusion, from optimism to uncertainty. We were bringing together Boston’s business and arts community after a highly divisive election. We asked ourselves, ‘How can we acknowledge the tense post-election climate without being political? How can we maintain a tone of collaboration and promote goodwill among people who potentially held opposing beliefs?’. Originally, we thought that the symposium would offer innovative networking opportunities; now we feared that the audience would be unable to span their differences.   Our sold-out crowd filled the newly renovated Boston University Graphic Design department’s space. Attendees from Boston-based for-profits, nonprofits, and government agencies gathered with higher education administrators, faculty, and students to explore the question, ‘What happens when art and business join forces to create stable economic opportunities and build vibrant communities while addressing societal needs?’.   To acknowledge the political sea change, we updated our introductory slide deck to include a Toni Morrison quote: ‘This is precisely the time when artists go to work. There is no time for despair, no time for self-pity, no need for silence, no room for fear. We speak, we write, we do language. That is how civilizations heal’. We knew that no matter how people voted or what political views they held, we stood by the belief that the arts have the power to connect, fortify and help us to build equitable, healthy, empathetic, respectful communities that benefit everyone.   To our delight, the tone of the symposium honoured our original vision to create an atmosphere of hope and possibility, but with even more energy and focus. Not only did artists need economic opportunities, but it was abundantly clear that businesses needed creative partners to help reimagine new ways forward. We began to think about the potential for arts and business collaborations to develop in a larger socio-economic context.   When Boston University’s BUild Lab IDG Capital Student Innovation Centre opened their doors in 2017, we partnered with them as creative practitioners in residence to expand upon the model of the Arts & Ideas in Action: Arts + Business + Social Impact   symposium to design and grow what is now the largest cross disciplinary student innovation conference in the USA, IDEA Con. [4]  Fast forward to October 2024 and IDEA Con, now with over 700 participants registered from 25 colleges and universities, incorporated an exercise from the MCSI second module of CARE Like an Activist through interactive CARE Cafés with all the participants in the auditorium.   These CARE Cafés were introduced by first posing the questions: ‘Where does creative innovation come from? And ‘What are problems worth solving?’. The CARE Cafés provided an opportunity for attendees to verbalize to each other what motivates them to get involved in something beyond themselves by exploring their CARE: an acronym for Curiosity, Awareness, Empathy, and Responsibility.   Prompts included:   WHAT  big problems are you curious about? HOW  do you want to address these problems? WHERE  do you think this interest/desire comes from? WHY are you the one to address this? Why now? WHAT  is your unique entry point into this problem? WHO else do you want to talk with to explore this problem/opportunity?   Once attendees had an opportunity to gather their individual ideas through a journaling exercise, they were put in two long lines and participated in a time-based speed dating-like activity. By giving individuals an opportunity to explore what they care about and articulate it to others, we allowed them to make authentic connections with a larger community, hatch partnerships, and deepen their sense of meaning from the event.   In addition to the CARE Cafés, IDEA Con highlights young creative entrepreneurs by giving them opportunities to share their stories in five-minute, TED Talk-style presentations. These speakers follow the MCSI Framework, inspiring attendees to tap into their own wellspring of curiosity. Over the years IDEA Con has featured student innovators such as:   Max Bard . [5]  A graduate of Boston University’s MFA program, Max is an interdisciplinary artist who uses recycled materials for his pieces with clients ranging from Google to national parks and galleries. IDEA Con hired Max to create a sculptural piece during the day-long conference emphasizing the theme of sustainability. His pop-up artist studio on the first floor of the Questrom School of Business at IDEA Con was an interactive practice inviting attendees to comment, share and discuss his piece in real time emphasizing the importance of Making like an Artist.   Ellice Patterson . [6] While studying for her MS from Boston University, Ellice was also establishing her non-profit organization Abilities Dance Boston that uses dance as a tool to advocate for intersectional disability rights. Ellice was a speaker for IDEA Con and modelled the importance of Caring like an Activist by creating a venture that aligns with her belief that dance should be inclusive of all body types. Her dance troupe then joined her on the stage to share their work and a performance with the audience.   Anj Fayemi . [7]  A rap artist and computer scientist from Nigeria, Anj was studying at MIT when he stumbled across a problem he was uniquely suited to solve. He was getting ready to release a new album and wondered, ‘How can artists use technology to directly interact and grow their fan base?’. He founded his for profit company, Rivet, in his third year at MIT and shared his story at IDEA Con from ideation to implementation underling the critical aspects of Strategizing Like and Entrepreneur and Implementing Like an Activist.   While continually refining the MCSI Framework, we have had opportunities to introduce the approach to thousands of students, professionals, and international dignitaries. We have found that no matter the age, experience, or industry there is a deep connection to incorporating the four quadrants of the MCSI Framework to make more meaningful work. The MCSI Framework clarifies and encourages participants to pay attention to the distinct puzzle pieces starting with authenticity and ending with solving problems that matter.   Act 3: Society   Reframing Future Economies   We have arrived at Act 3 in our story. In Act 1, our goal was to introduce entrepreneurial skills to art students, which we then grew into an interdisciplinary approach to creative entrepreneurship integrating our MCSI framework. In Act 2, our perspective broadened to reveal how the MCSI framework can serve a larger community through the symposium Arts & Ideas in Action: Arts + Business + Social Impact and later, through the IDEA Con Student Innovation Conference.   Our Gen Z and Millennial students are acutely aware of the uncertain economic future with the rapid advancement of artificial intelligence and a host of challenges including climate change, economic disparity and political unrest. They seek employment that reflects their triple bottom line values, provides financial security and offers hope for the future. If they can’t find these opportunities in existing companies, they are committed to building new ones. And our students are not alone—in the Deloitte 2023 Gen Z and Millennial Survey: Waves of Change: Acknowledging progress, confronting setbacks, 22,000 Millennials and Gen Z’ers across 36 countries responded with a deep concern for unethical business practices and political unrest. [8]  With businesses holding the locus of power in our time, Millennials and Gen Z’ers look to business leaders to rise up to address economic greed, disparity and the impending impacts of climate challenges.   Researchers from UK-based research organizations, Nesta and Pearson, assert that the future will require both human and machine capacities. As automation and artificial intelligence expand in the workplace, so will the need for deeply human skills like ‘originality, active learning and the fluency of ideas’. [9] The MCSI Framework offers student innovators the opportunity to cultivate and integrate deeply human skills into their ventures. As educators, we believe higher education is poised to lead a paradigm shift, providing students with the language and tools to become our future creative, caring, and strategic innovators.   We have arrived at the end of Act 3, but the curtain does not close. Universities are poised to play a key role as incubators for interdisciplinary collaboration and socially responsible innovation. Through a holistic approach that integrates making, caring, strategizing, and implementing, together we can create the meaningful businesses of the future. Wendy Swart Grossman and Jeannette Guillemin Wendy Swart Grossman is both a faculty member at the Questrom School of Business at Boston University as well as a co-founder of Creative Re/Frame, LLC.  With a background in global presidential politics and NGO and non-profit social impact organizations, she infuses creativity into her classrooms and client spaces to drive authentic community centered change to amplify the voices of her students and clients missions.    Jeannette (Jen) Guillemin is both a faculty member at the D’Amore-McKim School of Business at Northeastern University as well as a co-founder of Creative Re/Frame, LLC. With a background spanning arts leadership, counseling, and experiential learning, she integrates creativity and reflection into her classrooms and client collaborations to cultivate ethical leadership, foster resilience, and spark community-centered innovation. [1]  See ‘IDEA Con 2024’ ( Boston University ) < https://www.bu.edu/innovate/events/idea-con/ > accessed 19 December 2024. [2]  John Howkins, The Creative Economy: How People Make Money from Ideas  (Allen Lane 2001). [3]  See ‘Bendada Music Festival’ < https://bendadamusicfestival.com/ > accessed 19 December 2024. [4]  See (n 1). [5]  See ‘Home’ ( Max Bard ) < https://maxbard911.com/ > accessed 19 December 2024. [6]  See ‘Abilities Dance Boston’ < https://www.abilitiesdanceboston.org/ > accessed 19 December 2024. [7]  See ‘Where we began’ ( Rivet ) < https://www.rivet.app/about-us > accessed 19 December 2024. [8]  ‘2023 Gen Z and Millennial Survey’ ( Deloitte ) < https://www2.deloitte.com/cn/en/pages/about-deloitte/articles/genzmillennialsurvey-2023.html > accessed 19 December 2024. [9]  Hasan Bakhshi, Jonathan M Downing, Michael A Osborne, and Philippe Schneider, ‘The Future of Skills Employment in 2030’ ( Pearson and Nesta , 2017) < https://media.nesta.org.uk/documents/the_future_of_skills_employment_in_2030_0.pdf > accessed 19 December 2024.

Blue and white, occasionally with touches of yellow, ceramic tiles adorn not simply the façades and interiors of countless Portuguese buildings, but also the design imaginary of the nation. Spanning abstract and geometric patterns to illustrative figurations in engrossing detail, azulejos tiles are a firm fixture of Portuguese design. Their distinctive palette misleads many into locating the etymology of azulejos in azul , the Portuguese word for blue, which tidily frames the ceramic tiles within their popular discourse as an aesthetic of Portuguese monumentality—an ornament of national identity and strength. However, the term finds its origins in al-zulayj , the Arabic term for a small, smooth polished stone, which twofold troubles categorizations of the ceramic tiles—both highlighting their complex function as an architectural material and illuminating a complex and often forgotten period of Portuguese history and identity. Since the 8 th century, when al-Andalus Muslims sailed from North Africa, occupying the Iberian Peninsula and in so doing introducing their ceramic compositions, azulejos have stood Janus-faced at the complex intersection of utility and ornament. They have solidified as a distinct aesthetic of Portuguese national identity while simultaneously gesturing at the assemblages of influences which constitute the nation.    It was precisely this reflective quality, this hybrid language of azulejos, that stood as a threat to the Second Portuguese Republic. Under controversial dictator António de Oliveira Salazar, the Estado Novo (New State) fascist regime sought to create a so-called modern image and so saw the brief disappearance of the ceramic tiles from Portuguese design. The resulting architectural style of Português Suave (Soft Portuguese) articulated in concrete a national identity without memory. This period of absence, and the re-emergence of azulejos following the Revolução dos Cravos  (Carnation Revolution), brings into stark relief the politics that underscore the unique design qualities of the ceramic tiles. Indeed, the Portuguese struggle against the Estavo Nuovo  fascist regime is a struggle of memory against forgetting, of azulejos against concrete.    Hybrid Materiality   Azulejos fall somewhere between decorative art and architectural material. This hybrid position of ornament and design is reflective of the more complex politics which underscores the ceramic tiles. Azulejos are an ornamental art form with a specific functional capacity: their composition of porous clay covered by a protective glaze reflects light and insulates against humidity and corrosion from salty air, making them an ideal design material for Portugal’s Mediterranean climate. [1]  Scholars are unanimous in their praise for the sleek efficiency of the material, accrediting its function as the source of its widespread and ubiquitous presence in the Portuguese design imaginary. João Miguel dos Santos Simões, one of the first and only scholars on azulejos and the founder of the Museu Nacional do Azulejo (National Azulejos Museum), describes how the ceramic tiles transcend their utilitarian function as a protective parietal finishing, taking on a monumental spirit as a ubiquitous part of Portuguese culture. [2] Indeed, the ceramics can be found in all realms of Portuguese life: lining the walls of secular sites like train stations, restaurants, bars, fountains, and murals with triumphant historical scenes; composing the political sphere in the contours of monuments and parliamentary buildings; enclosing the domestic sphere in geometric and floral motifs which adorn the fa ç ades of homes; and articulating sacred space, composing altars and icons for Catholic worship. Yet these expressions of Portuguese monumentality are not a Portuguese invention, but rather a vestige of the al-Andalus Muslim occupation. In this way, the azulejos are always gesturing as much away as towards Portuguese national identity—serving as a testament to the past as it builds the future. The concept of hybridity illuminates the genesis of the aesthetic and conceptual layers of the ceramic tiles, illuminating the complex relationship of medium and message. The azulejos represents not only the fusion of ornament and design, but also embodies the memories of strength and weakness in Portuguese history.    The history of the azulejos illuminates not simply their hybrid and complex language, it also exists as a politically urgent practice of memory. Azulejos are vestiges of the al-Andalus Muslim occupation of the Iberian Peninsula, which lasted over five hundred years, from the 8 th  to the 13 th  century (711-1492 CE). Currently, there is a lack of English-language scholarship discussing this period of Portugal’s design history, especially concerning the al-Andalus occupation of the Iberian Peninsula and its influence, and particularly regarding azulejos ceramic tiles. Also notable is that most English-language Portuguese scholarship avoids the mention of the al-Andalus within discussions of azulejos. It is therefore necessary for scholarship to explore this forgotten history and unpack the politics of memory. While the precise genealogical evolution of the azulejos is underexamined, and is not the subject of this paper, through the assemblage of visual analysis with the historical records which do  exist, it is possible, and indeed urgent, to locate the azulejos within its al-Andalus Muslim origins.    Materiality of History Azulejos are a composite material. They are composed of a porous clay-based ceramic body, the terracotta, covered by a protective glassy phase, the glaze, which operate together to form a larger pattern or image. The term azulejos describes their function as smooth polished stones operating within a mosaic composition, many of which have the interlocking curvilinear, geometric, and floral motifs characteristic of Islamic art and design. [3] It is possible to surmise that Portuguese azulejos find their lineage in zellij  (الزليج), a form of Islamic mosaic tilework characteristic of Islamic architecture from the end of the first millennium. Zellij are a mosaic composition where an ‘architectural surface is entirely covered by a pattern arrangement of small pieces of tile which have surface glazes of different colours’. [4] A precise historical visual analysis of al-Andalus zellij  tile against the azulejos is not possible, as al-Andalus architecture and art were either completely destroyed or whitewashed and appropriated after the Reconquista, the period of military campaigns waged by Western European Christian kingdoms in order to retake the Iberian territories. In fact, scholars note that nothing remains from the al-Andalus period of occupation or the first Portuguese kings. [5] However, a comparison of traditional Portuguese azulejos with traditional Islamic zellij  can illuminate their shared genealogy.    Some of the earliest azulejos can be found in the Palácio Nacional de Sintra (The Palace of Sintra), a site which is not only replete with ceramic tiles but also the nationalistic gestures which obscure their history. The Palácio Nacional de Sintra  was originally the residence of the al-Andalus Taifa of Lisbon, set up as the palace of the Islamic kingdom of the Iberian Peninsula. The interior walls of the palace are still adorned with ceramic tiles, but critically they are not the original zellij  tiles from the 10 th century, rather being azulejos from the 15 th  century. Most scholarship on azulejos locates their origins during this period, citing this palace as one of the first instances of the ceramic design and attributing their introduction to King Manuel I of Portugal (r. 1495-1521 CE). The azulejos stand as an import of luxury within this national narrative—a whim of a monarch’s visit to Seville, Spain and the Alhambra palace in Granada as an exercise in national taste. Indeed, the palace is celebrated as a testimony to the Portuguese reconquest and early affirmation of nationality. However, a comparison of decoration choices accredited to King Manuel I with traditional architectural Islamic tile design hardly illuminates the beginnings of a national tradition and aesthetic of strength, rather gesturing towards the unshakable influence of 500 years of occupation.  Sala dos Brasões, Palácio Nacional de Sintra © Caroline DeFrias One of the earliest examples of Islamic tile decoration is the Qubbat al-Sakhra  (قبة الصخرة or ‘The Dome of the Rock’). The edifice sits atop the Temple Mount in Jerusalem. It is a holy site for Muslims, enclosing the Foundation Stone that lies at the heart of the structure, which is believed to be the location of the miraji (ascension) of the Prophet Muhammad. The Qubbat al-Sakhra historically functioned and continues to serve as a shrine and important site of pilgrimage since its construction in 692 CE. [6] It is therefore reasonable to surmise this site would have held great importance and influence for the al-Andalus Muslims, making it a suitable site for comparison through which to examine the Islamic influence of the Palácio Nacional de Sintra .    The Qubbat al-Sakhra encloses the Foundation Stone in two ambulatories and an exterior wall. The exterior wall has an octangular structure with a raised circular platform that is capped with a golden dome. There are four entrances, each aligned with a cardinal direction. Marble clads the lower register of the exterior of Qubbat al-Sakhra , while faience, or tin glazed ceramics tiles, form a zellij  composition on its upper registers. The glazed tiles, which dazzle in hues of blue with accents of green and yellow, are composed of precise shards of ceramic placed together to form abstract geometric and floral patterns, as well as calligraphy. This aniconic imagery is characteristic of Islamic design, which avoids direct reflections of sentient beings in art which decorates religious and holy sites. [7] The placement of the tiles on the upper registers of the exterior structure function to draw the eyes towards heaven, urging an ascent of vision and thought which echoes the journey of the Prophet Muhammad. Each tile seems to gesture in kind with one another towards the creator of such sites of beauty, speaking in glistening rays a reflection of gratitude and wonder.    The interior of Qubbat al-Sakhra is similarly ethereal, as the light from the windows which line the octagonal wall illuminate the ceramics which grace the interior of the dome. Golden zellij compositions shimmer atop supporting columns with corinthian capitals. Swirling vegetative motifs compose two rows above the columns and seem to swirl upwards towards the glistening golden and bejewelled dome interior, itself comprised of a geometric rhythm of gilded teardrops contoured in a deep red, which seem to fall from the eyes past the body and towards the rock which the Qubbat al-Sakhra houses. The ceramic tiles crowd together like the pilgrims who come to admire the site they adorn. Ibn Battua, a 14 th -century travel writer, described the Qubbat al-Sakhra  as ‘a building of extraordinary beauty, solidity, elegance, and singularity of shape […] Both outside and inside, the decoration is so magnificent and the workmanship so surpassing as to defy description’. [8] Here, the zellij  composition works in harmony with the architecture of the building to accentuate the excellence of either, and articulate a beautiful testament to the Islamic faith.   The Palácio Nacional de Sintra  has perhaps less lofty goals despite its similar use of ceramic tiles. Here, despite their kindred function, the azulejos gesture not towards the divine, but rather towards the Portuguese body politic as articulated by King Manuel I, and reflectively towards the Islamic kingdom who occupied the territory and its people for half a millennium. Originally constructed by the al-Andalus, following the Reconquista  and subsequent forceful expulsion of Muslims from Portugal, the Palácio Nacional de Sintra was quickly vandalised, its walls whitewashed by King João I (r. 1385-1433). The history of the palace during the reigns of successive kings is unknown until the reign of King Manuel I, who refurbished the Palácio Nacional de Sintra in the early sixteenth century with ceramic tiles. Importantly, these azulejos would adorn the very walls whitewashed of their previous al-Andalus zellij compositions—a gesture widely considered to be the origins of the azulejos tradition must thus be seen as a move to obscure their history. Most scholars cite the waiting room to the palace meeting chambers (known today as Sala dos Árabes,  or in English, the Arab Room) as an iconic origin of the Portuguese tradition of azulejos, making it an important site of consideration of the hybrid gesture inherent in them.   Sala dos Árabes, Palácio Nacional de Sintra © Caroline DeFrias The  Sala dos Árabes  is a primary site of reception for the Palácio Nacional de Sintra , and the nation whose monarchs it houses. As a waiting room for the palace’s meeting chambers, the Sala dos Árabes offers itself as a vital impression to visiting guests as well as a reminder to ruling monarchs, seeking to communicate the national identity of the Kingdom of Portugal through its design. Similarly to the Qubbat al-Sakhra , Sala dos Árabe s has multiple entrances, showcasing the splendour of the interior to multiple wings of the palace. Different from the Qubbat al-Sakhra  is the availability or accessibility of the space, as the palace was reserved for visiting monarchs and other dignitaries; its design articulates a projection of national identity among a selected audience. As a site of reception, one was invited into the space by Portuguese monarchs in a political gesture echoed on the walls. The Sala dos Árabes  has a low ceiling, accentuated by its wooden material which works together with the white walls to further visually narrow the space. At the centre of the room is a marble fountain, which rises from an abstracted star based into a bronze sculpture of cherubs holding an acorn, a symbol of growth and expansion. This sculpture emerges from a blue tile segment on the floor which is echoed on the room’s walls. Interestingly, in opposition to Qubbat al-Sakhra , it is the lower register of the Sala dos Árabes  which is adorned in ceramic tiles while the upper register remains empty.  Sala dos Árabes, Palácio Nacional de Sintra © Caroline DeFrias  Blue, green, and white, with accents of yellow, glazed ceramic tiles adorn the Sala dos Árabes  in undulating geometric patterns. The principal pattern has an interplay of quadrilateral shards which create a three-dimensional effect of cubes, which together seem to form the waves of an abstract ocean. This motion, however, has little place to go as the tiles are reserved to the lower half of the room and trapped by the wooden ceiling. Through their shared use of blue ceramic tiles, the azulejos seem to gesture towards the foundation, highlighting the water as a site of reflection instead of the sculpture as a site of projection into the future. Atop the wall azulejos are accent ceramic tiles which secure the building in an arrangement evoking the top of a fence, protecting or perhaps entrapping the occupants of the Sala dos Árabes . These ceramic tiles are cut and arranged into fleur-de-lys, which were often used to mark the north direction on a compass rose by Portuguese cartographers. [9]  This reference to exploration seeks to celebrate Portugal’s growing colonial empire during the Age of Discovery, where the azulejos function as a medium of this national identity as a thalassocratic empire. Importantly, the resulting trading empire from Portugal’s imperial maritime network funded the voyage which inspired King Manuel I as well as his import of the ceramic tiles, yet this projection of power is undercut by the medium of their articulation. The projection of strength King Manuel I intended for the ceramic tiles is simultaneously a humble gesture, attesting also to voyages of the al-Andalus in their occupation of the Iberian Peninsula—a history hidden just beneath the surface of the azulejos of Palácio Nacional de Sintra .   Sala dos Árabes, Palácio Nacional de Sintra © Caroline DeFrias Many scholars fondly note the journey of King Manuel I to Seville and Granada, Spain, admiring his excellent  taste and financial prowess as the introduction of the azulejos tile tradition to Portugal. The resulting history of the azulejos is significantly better documented, and in virtually all scholarship the 15 th  century is regarded as the origin of the ceramic tile tradition. As this history is more easily accessible, it will be quickly summarised. In the 16 th century, expedited by the Spanish Expulsión de los moriscos  (Expulsion of the Moriscos), the decree of King Philip the III which forced all remaining Muslims in Spain to either convert or leave the country, Portugal took off in earnest as not only a consumer, but a producer of azulejos. As Christian Portuguese tradesfolk began creating the ceramic tiles, the subjects of azulejos increasingly tended towards naturalistic artistic creations, becoming a visual language of Portuguese national identity, depicting its history, influences, and exploits for the next five centuries. This is the monumentality Simões speaks of—the ubiquitous presence as a uniquely Portuguese quality—which dismisses the politics and history of the medium itself.   Materiality of Erasure   As important as it is to uncover the past of the azulejos, it is equally valuable to examine their erasure. Chiefly, the whitewashed walls upon which King Manuel I introduced what many scholars refer to as the first use of ceramic tiles in Portugal function astutely as a metaphor for the history of the ceramic tiles they obscure. Indeed, the practice of whitewashing, a principle means of the erasure and destruction of the visual legacy of the al-Andalus occupation of Portugal, emerges—through a consideration of the work of the Swiss modernist architect Le Corbusier—not simply as the forgetting of past subjugation but an exercise in the purification of a national identity.   Le Corbusier first discusses the need for a ‘loi du blanchiment’ (law of whitening) as a cleansing moral act which expunges decorative art in favour of a ‘purity’ of body, sight, and mind, during a 1923 interview early in his career. [10]  For Le Corbusier, whiteness is both the effect and means of cleanliness, against a surface making disease and impurity visible. This measure of control was characteristic of his career in international design, characterised by the recurring gesture of an eradication of difference and a particular disdain for ornamentation. Art historian Mark Wigley argues that Le Corbusier’s whitewash ‘exposes every dimension of life in front of it to judgement’. [11] Yet another necessary dimension of gesture is concealment; it is necessary to consider that which is behind  the whitewash. The projection of cleanliness requires not simply a clean exterior, but the erasure of the material which previously stood where the whitewash now resides. Le Corbusier’s logic of purity emerges as a rejection of tradition, articulating a hyper-presence which requires not simply that one constantly attend to the present moment so as to maintain the aesthetic of cleanliness but also that one obliterates any indication of a past.    The whitewashing of the Palácio Nacional de Sintra , and doubtlessly countless other sites yet unexplored, stands as an attempted cleansing of the Portuguese body politic. Following the logic of Le Corbusier, the whitewash stands as an attempted purification of national identity through the obfuscation of the al-Andalus tiles. Yet this venture is incomplete, as the resurgence of azulejos, despite any nationalistic intentions to project strength and obscure origins, still gestures towards their Muslim origins and therefore the diversity of influence and experience which constitutes Portugal’s national identity. Unfortunately, however, the calls of modernists like Le Corbusier would be answered in earnest, the call for a sleek international style and its implications of national purity zealously executed within Portugal’s own modern period, as administered by the Estado Novo regime. This period oversaw the disappearance of azulejos from Portuguese architectural design, cited by the regime as a movement towards simplicity and efficiency and against ornamentation. However, it is precisely the hybrid language of the azulejos—the paradoxical message of national strength articulated in the medium of historical vulnerability—which made their continued use during the Estado Novo  period an impossibility. Estado Novo  (New State) was one of the longest surviving authoritarian regimes in Europe. It began with the military coup d’état of 28 May 1926, then declared the Revolução Nacional (National Revolution), now known simply as the 28 May Revolution, which ended the unstable República Portuguesa (Portuguese Republic). Also known as the First Republic, República Portuguesa was the complex 16-year period which followed the end of the Portuguese monarchy. The First Republic attempted and ‘fail[ed] to democratise and modernise the country’, [12] instead fostering growing unrest and distrust formed between the ideals República Portuguesa  espoused and their failed political materializations, caused in part by and coupled with the economic instability resulting from the First World War. Historian José Miguel Sardica describes how ‘within a few years [of the turmoil of República Portuguesa ], large parts of the key economic forces, intellectuals, opinion-makers and middle classes changed from left to right, trading the unfulfilled utopia of a developing and civic republicanism for notions of “order”, “stability” and “security”’, [13] which paved the way for the coming authoritarian regime. The 28 May Revolution established the Ditadura Nacional (National Dictatorship), which predicated itself on a ‘deep scepticism regarding the effectiveness of parliamentary democracy’, [14]  later crystallised in the 1933 constitutional referendum which institutionalised the Estado Novo  one party state led principally by António de Oliveira Salazar. [15]  The so-called ‘New State’ was an authoritarian regime concerned with enforcing the nova ordem  (new order) of a modernised Portuguese nation. [16]   From the moment Salazar seized power, he committed himself to the construction and promotion of ‘new public buildings as achievements that were in stark contrast with the inertia of the previous parliamentary regime’. [17] The resulting architectural style originally promoted as Estilo Português  (Portuguese style), now known as Português Suave  (Soft Portuguese),   sought to articulate a ‘future-orientated modernity’ [18] for the Christian fascist state, which included the discontinuation of the azulejos as a design material in all realms of Portuguese design and life. Português Suave  sought paradoxically to articulate a ‘more international language and a national style’, [19] achieved through the displacement of traditional techniques, materials, and styles in favour of a somewhat anonymous, austere, and efficient modernist style. Ponorama: Revista Portuguesa de Arte e Turismo ( Portuguese Magazine of Arts and Tourism ), a publication overseen by the Estado Novo  regime, described in a 1941 article entitled ‘Campanha do bom gôsto’ (‘Campaign for good taste’) the kind of modern design identity the Estado Novo  promoted:    Good taste is imposed even in technical areas. […] Experience teaches scientists, engineers, architects, builders, that the artistically and scientifically correct solutions are always the simplest, the most elegant, the most attractive [ O bom gosto impõe-se mesmo nas áreas técnicas. […] A experiência ensina aos cientistas, engenheiros, arquitetos, construtores, que as soluções artística e cientificamente corretas são sempre as mais simples, as mais elegantes, as mais atraentes .] [20]   Modernist Portuguese architects responded to this imperative, designing sleek buildings which adhered to the principles of simplicity of form and material. These calls can be understood in relation to the modernist architectural movement more broadly, as architects and designers who worked for Salazar’s regime were encouraged to attend international fairs, subscribe to foreign journals of design, and maintain acquaintances and professional relationships with foreign designers. [21] The resulting fierce rejection of the past must be understood not simply within a Portuguese context, but alongside an analysis of International Design and the implications of its implementation.   The Salazarian regime was preoccupied, like other European fascist regimes, with newness. During a 1940 commemoration of the Estado Novo  he stated: We are not just because we were, we do not live just because we have lived, we live to carry out our mission and claim to the world the right to do it. [ Não somos só porque fomos, nem vivemos só por termos vividos; viver para bem cumprir a nossa missão e perante o mundo afirmamos o direito de cumprir-la ]. [22] This sentiment resonates with Le Corbusier’s Towards a New Architecture , which itself is an appeal to ‘disdain the work of so many schools, so many masters, so many pupils, and to think thus of them: “they are as disagreeable as mosquitoes”’. [23]  The modernist identity emerges for both as a rejection of the past, which resulted in a nova ordem  (new order) or l’esprit nouveau  (new spirit) of a hyper-present orientation. For Português Suave , this impulse lived not only in the architecture but the design materials; principally, in the exclusion of the azulejos.   The fall from grace the azulejos experienced during Português Suave  is typically associated with the material’s ornamentation, framed within modernist discussions of efficiency of material. Concrete instead became a favoured material, [24] constructing buildings which stood in austere, lacklustre silence compared with the ceramic tiled buildings which preceded them. The Praça do Areeiro (Areeiro Square), constructed in the midst of the Estado Novo regime from 1938-1949 by architect Luís Christino da Silva, stands as a testament to this forgetting—its edifice seeming to yearn for memory, for azulejos. Typical of Português Suave , the buildings of Praça do Areeiro utilise reinforced concrete as their primary medium, and highlight its smooth form in large, looming, plain walls. A marble base of archades evoke a robust sense of uniformity and strength, accentuated by a slight horizontal stripe which emphasises the scale of the buildings. The upper register of the buildings has uniform rows of square windows against a plain concrete facade, which upon close analysis reveals itself to be made of evenly placed rectangular concrete panels. This style is both a representation and trace of the lost contours of traditional Portuguese architecture which maintains similar structure but crucially maintains a stripped down, simple aesthetic. During the 1940s, Salazar sought to restore  much of the capital’s architecture through ‘sharpening’ or ‘correcting’ their facades as a testament to his commitment to restore the values of Portugal’s past and future. [25] Importantly, this restoration of Portuguese identity omitted its most perhaps monumental medium: the azulejos replaced by concrete panels.   The Português Suave decision to retire the azulejos functions as a complex political gesture to not simply modernise Portuguese design but also purify Portuguese identity. The azulejos function as a design structure which builds other structures, a story with which other stories are told; they are a complex hybrid language that remembers aspects of Portuguese history and identity which the Estado Novo regime in particular would like to forget. In particular, the azulejos attest to the presence and significance of the al-Andalus Muslim occupation of the territory for 500 years. The erasure of ceramic tiles from the so-called modern Portuguese nation functions as a politics which seeks to kill politics; an eradication of difference, of time, and of history. The urgency of uncovering the history of the azulejos, of not letting it be lost in false nationalistic narratives, and of maintaining their place within Portuguese design history and practice, is a struggle precisely against a fascist regime which seeks to eliminate opposition in service of power.   It is important to note the countless historic azulejos are visible in Portugal today. Despite their distaste for the ceramic tiles, the Estado Novo  regime did not remove azulejos from all historic buildings. In fact, regardless of their lack of favour during Português Suave  and the imperative to be modern delivered by the regime, many Portuguese architects such as Raul Lino maintained a strong affinity for the ceramic tiles. Interestingly, Lino maintained a close personal relationship with Salazar, and did not use the ceramic tiles in his work, though he wrote passionately of their possibilities. Lino took issue with the increasingly ‘amorphous, spiritless, faceless aspect of the Western metropolis’ that was taking over Portuguese design and felt the azulejos stood as an integral articulation of the ‘eternal spirit of the Portuguese people’. [26] Soon after the Revolução dos Cravos (Carnation Revolution), which ended the near 40-year rule of the Estado Novo  regime, the azulejos returned as a design material; a triumph not of will, not of determination or power of a fixed national identity, but an embrace of a democratic, fluid, and hybrid nation.    The urgency of memory does not end with a singular recollection nor the fall of one fascist regime, but rather requires constant attention and care for history. Currently, the azulejos are under a different threat of disappearance: commodification. The manufacture of contemporary azulejos is principally for tourist markets which covet the ceramic tiles as aesthetic objects, often disregarding their design value and history. The implications of the commodity fetishism of azulejos are yet unexplored. Likewise, an inquiry into how this reflects the contemporary national identity of Portugal remains unwritten. There is an urgency to attend to this emerging history, as the lust for azulejos has grown so strong that numerous historical sites in Portugal are filled with gaping holes, thieves having removed the ceramic tiles for sale on the black market. The commodification of the azulejos appears to be eradicating its history twice, removing both the idea and the object. As more scholars emerge to build robust histories of the movement and design of these ceramic tiles, further questions and knowledge can be gleaned about the nature of Portuguese identity.[27] Caroline DeFrias Caroline DeFrias (CDF) is an artist-academic, currently operating in Mi’kma’ki territory in Kjipuktuk (so called Halifax, Canada). Their work, through a variety of mediums and disciplines, seeks to explore the construction of gallery space and the encounter of the art object, notions of inheritance and identity in relation to immigration and (re)settlement, as well as the ethics and pathos of the archive. They hold a Combined Honours with distinction Bachelor of Arts from the University of King’s College in Social Anthropology and the Historiography of Science, with a certificate in Art History and Visual Culture, and are pursuing a Masters of Fine Art in Art History from Concordia University. [1]  Catarina Geraldes, ‘The Integration of Azulejos in the Modernist Architecture of Portugal as a unique case in Europe’ in Marluci Menezes, Dória Rodrigues Costa, and J Delgado Rodrigues (eds), Intangibility Matters: International Conference on the Values of Tangible Heritage (LNEC 2017) 139-147. [2]  João Miguel dos Santos Simões, Estudos De Azulejaria  (Imprensa Nacional Casa Da Moeda 1956) 268. [3]  Oleg Grabar, ‘What Makes Islamic Art Islamic?’ in Islamic Art and Beyond, volume III, Constructing the Study of Islamic Art  ( Routledge 2006), 247–251, 248. [4]  Donald N Wilber, ‘The Development of Mosaic Faiënce in Islamic Architecture in Iran’ (1939) 6(1) Ars   Islamica 16. [5]  See eg Mark Cartwright, ‘Portuguese Empire’ ( World History Encyclopedia , 21 July 2021) < https://www.worldhistory.org/Portuguese_Empire/ > accessed 1 July 2024.         [6]  Erdal Eser, ‘The First Islamic Monument Kubbet'üs-Sahra (Dome of the Rock): A New Proposition’   (2017) 23 Pesa International Journal of Social Studies 135-147. [7]  Grabar (n 3) 250. [8]  Quoted in Elizabeth Macaulay-Lewis, ‘The Dome of the Rock (Qubbat Al-Sakhra)’ ( Khan Academy ) < https://www.khanacademy.org/humanities/ap-art-history/west-and-central-asia-apahh/west-asia/a/the-dome-of-the-rock-qubbat-al-sakhra#:~:text=The%20Dome%20of%20the%20Rock%20is%20a%20building%20of%20extraordinary,surpassing%20as%20to%20defy%20description > accessed 1 July 2024. [9]  Maria Fernanda Alegria, Suzanne Daveau, João Carlos Garcia, and Francesc Relaño, ‘Portuguese Cartography in the Renaissance’ in David Woodward (ed), The History of Cartography, Volume 3, Part 1: Cartography in the European Renaissance  (University of Chicago Press 2007) 956-1068, 1033. [10]  Le Corbusier quoted in Guillaume Janneau, ‘L’Exposition des arts techniques de 1925’ (1923) Le Bulletin de la vie   artistique 64. [11] Mark Wigley, ‘Chronic Whiteness’ ( e-flux Architecture , November 2020) < https://www.e-flux.com/architecture/sick-architecture/360099/chronic-whiteness/ > accessed 1 July 2024.   [12] José Miguel Sardica, ‘The Memory of the Portuguese First Republic throughout the Twentieth Century’ (2011) 9 e.Journal of Portuguese History 63. [13]  ibid 67. [14]  Raquel da Silva & Ana Sofia Ferreira, ‘The Post-Dictatorship Memory Politics in Portugal Which Erased Political Violence from the Collective Memory’ (2018) 53(1) Integrative Psychological and Behavioral Science 26. [15]  ibid. [16]  Fernando Rosas, ‘O salazarismo e o homem novo: Ensaio sobre o Estado Novo e a questão do totalitarismo’ (2011) 35(157) Análise Social 1033. [17] Rita Almeida de Carvalho, ‘Ideology and Architecture in the Portuguese ‘Estado Novo’: Cultural Innovation within a Para-Fascist State (1932–1945)’ (2018) 7(2) Fascism 146. [18]  ibid 155. [19]  ibid 154. [20]  ‘Campanha Do Bom Gôsto’ (1941) 1 Ponorama: Revista Portuguesa de Arte e Turismo; my translation. [21]  De Carvalho (n 17) 159. [22]  António de Oliveira Salazar, Discursos e Notas Políticas: 1938-1943 , vol 3 (2nd edn, Coimbra Editora 1944) 259; my translation. [23]  Le Corbusier, Towards a New Architecture  (14th edn, Dover Publications 1986) 84. [24]  De Carvalho (n 17) 170. [25] Ellen W Sapega, ‘Image and Counter-Image: The Place of Salazarist Images of National Identity in Contemporary Portuguese Visual Culture’ (2002) 39(2) Luso-Brazilian Review 47. [26]  De Carvalho (n 17) 163. [27] Possibilities for future research include the exploration of the ceramic tiles within Portugal’s own imperial project; and the complex meanings and evolution of the azulejos in Brazil, India, the Philippines, East Timor, Angola, Mozambique, Guinea-Bissau, Cape Verde, São Tomé and Príncipe, and Equatorial Guinea. Attending to the history of the Portuguese export of the ceramic tile will further critical studies into the nature of Portuguese imperialism and colonialism, as well as the national identity that fostered them.

The voice came from an oblong metal plaque like a dulled mirror which formed part of the surface of the right-hand wall […]. The instrument (the telescreen, it was called) could be dimmed, but there was no way of shutting it off completely.[1]   1. Introduction Prior to the spring of 2020, two notable events occurred in quick succession: surveillance vans equipped with Live Facial Recognition (‘LFR’) technologies were seen patrolling Cardiff City Stadium before the club’s football match with Swansea City,[2] and the Metropolitan Police Service announced that it had installed an LFR camera at Oxford Circus, a highly-trafficked area in the Westminster borough of London.[3] Facial recognition is by no means the only way in which personal data is captured and used by the police,[4] but it is certainly one that has gripped the imagination of the public. Civil society groups have described the technology as an ‘Orwellian mass surveillance tool’ not unlike the instruments used in the fictional state of Oceania in 1984 .[5] The increasing use of facial recognition technology by law enforcement agencies, therefore, poses an acute regulatory challenge, with many concerned that ‘existing legislative and policy frameworks are outdated and fail to account for the new and various ways in which biometric data is, or might be, accessed and used’.[6]   This article seeks to contribute to evolving scholarship on the use of LFR by law enforcement from the vantage point of international human rights law (‘IHRL’).[7] It begins by situating the regulation of LFR within the parameters of the relationship between the law and technology, before elaborating on how LFR operates, as well as on the justifications for its deployment by police forces. The article then examines the main sources of international law on discrimination that apply in this context, focusing in particular on the issue of racial bias. It does not, however, set out an exhaustive checklist of the potential systemic biases inherent in LFR technology; rather, it addresses the underlying normative question of when, if ever, the police may make use of such tools in a manner compliant with IHRL principles on equality and non-discrimination.   2. LFR and the relationship between law and technology   The nature of the relationship between the law and technology has been debated at length. Proponents of technological exceptionalism have suggested that the ‘essential qualities’ of technology ‘drive the legal and policy conversations that attend them’.[8] This school of thought reinforces what Carter and Marchant have described as the ‘pacing problem’: the idea that ‘rules-based regulation cannot keep up with the pace of new developments’.[9] Indeed, the notion that the law is ill-equipped to deal with the extent and rate of technological advancement has received traction amongst scholars. Johnson and Post, for example, in response to the limitations of ‘territorially-based law-making and law-enforcing authorities’,[10] have argued in favour of a new form of Internet governance, unbound by geographical boundaries. Similarly, Calo has suggested that the interaction of new and emerging technologies with outmoded legal frameworks prompts a ‘systematic change to the law or legal institutions in order to reproduce, or if necessary, displace, an existing balance of values’.[11] This process is not framed as static in nature, but as one continually on the move, since ‘technology has not stood still’.[12]   However, there are those that have expressed reservations about attempts to linearise the relationship between the development of the law and technological change. Jones, in particular, has criticised theories of technological exceptionalism for failing to account for the fact that ‘the story of law and technological change is much more varied, messy, and political’.[13] According to Jones, rather than linearly following technology, ‘a great deal of legal work shapes technology and the way in which it will be understood in the future’, with ‘scholars, judges, regulators, and legislators often [making sense] of technologies in a way that is forward-looking’.[14] In a similar vein, Balkin indicates that it is ‘[unhelpful] to speak in terms of ‘essential qualities’ of a new technology that we can then apply to law’.[15] Although acknowledging that Calo’s thesis ‘is destined to be the starting point for much future research in the area’, Balkin argues in favour of assessing the evolving uses of emerging technology for the purposes of developing the law, given that ‘people continually find new ways to employ technology for good or for ill’.[16]   The global governance of LFR and so too its uses in law enforcement contexts are thoroughly interconnected with competing conceptions of the relationship between law and technology. On one hand, the essentialist tendencies of technological exceptionalism have been borne out in descriptions that stress the novelty of facial recognition as ‘an attractive solution to address many contemporary needs for identification’, bringing together ‘the promise of other biometric systems […] and the more familiar functionality of visual surveillance systems’.[17] On the other hand, a number of authors have raised concerns about the uses (and abuses) of such technology on human rights grounds.[18] For instance, scholars including Bu have attempted to evaluate the lawfulness of facial recognition technology by reference to both EU data protection rules and the privacy jurisprudence of the European Court of Human Rights (‘ECtHR’).[19] Whilst attention has naturally focused on the extent to which infringements upon privacy and data protection rights may be ‘justified as a necessary and proportional invasion’,[20] the extent to which the use of LFR has been tested against international legal principles and standards on discrimination remains under-developed.[21] Indeed, in the British context, Bradford, Yesberg, Jackson, and Dawson have described ‘potential bias and discrimination’ as a ‘significant controversy’ in the use of LFR by police forces—a concerning possibility which requires consideration of two issues.[22] First, what justifications have been raised in favour of the use of LFR by police forces? Second, what specific aspects of LFR usage by law enforcement raise the spectre of potential discrimination?   3. The operation of LFR   In perhaps the most sustained independent analysis of the use of LFR in the context of British policing, Fussey and Murray identify four salient features.[23] First, facial recognition technology allows ‘for the real time biometric processing of video imagery’; unlike CCTV cameras, the process by which individuals are identified and tracked through their facial features is partly automated.[24] Second, compared to open street surveillance cameras, LFR possesses ‘additional and powerful capabilities’ in the form of ‘enhanced data-matching’.[25] Third, LFR is integrative in nature: it is possible for such technology to be accommodated into ‘police body worn cameras or city-wide surveillance camera networks, on a 24/7 basis, and for the resultant data to be subject to automated analysis’.[26] Fourth, the objects identified in the deployment of facial recognition technology are not disposable or transferable: the software ‘creates a digital signature of identified faces, and then analyses those digital signatures against a database (referred to as the ‘watchlist’) in order to determine whether there are any matches’.[27]   4. The rationales for police use of LFR   Having briefly outlined how facial recognition technology operates, there is one remaining question that warrants consideration: why, exactly, has LFR been promoted in modern policing practices? The answer to this question rests on the belief that the technology advances the aims of effective policing and crime prevention. It is my proposal that this assumption is predicated on two rationales—efficiency and impartiality—and that the orthodoxies upon which these rationales in turn rest have unstable foundations. The gaps and inconsistencies responsible for this instability are significant to the extent that they impinge upon the discrimination risks associated with the use of facial recognition tools by law enforcement agencies.   a. Efficiency   In attempting to justify its deployment by police forces, advocates of LFR have repeatedly lauded its ‘efficiency’ in enhancing surveillance capabilities. As Hamman and Smith have put it, ‘[facial recognition] technology has benefited law enforcement in innumerable ways, such as creating reliable evidence, enabling efficient investigations, and helping to accumulate data that allow law enforcement to react quickly and effectively’.[28] This emphasis on the functionality of facial recognition technology can be directly correlated with the increasing use of such tools ‘to ensure security and combat terrorism around the world’.[29] Yet LFR also has the potential to be employed in situations that fall outside the scope of national security and counterterrorism operations. As observed by the Divisional Court in R (Bridges) v Chief Constable of South Wales and Ors [2019] EWHC 2341:     Like fingerprints and DNA, AFR technology enables the extraction of unique information and identifiers about an individual allowing his or her identification with precision in a wide range of circumstances. Taken alone or together with other recorded metadata, AFR-derived biometric data is an important source of personal information.[30]   There is cause for concern with regard to the potential mission creep of facial recognition technology into operational policing writ large. Whilst efficiency-based arguments in favour of using LFR in law enforcement contexts hinge upon its putative benefits, what is less clear is whether they are grounded in empirical evidence. At present, the Face Recognition Vendor Test, a series of large-scale assessments of LFR systems realised by the National Institute of Standards and Technology (‘NIST’) in the United States, represents the most comprehensive independent evaluation of cross-demographical performance inconsistencies in such technology.[31] Its 2019 study of 189 LFR software programs identified that racial minorities were up to 100 times more likely to be wrongfully identified than White males in facial recognition deployment exercises.[32] Other analyses have also identified problems with LFR software in relation to the accurate identification of juveniles and darker-skinned women.[33] These inconsistencies raise serious concerns as to the effectiveness of LFR as a mode of data-driven policing and undermine the extent to which the attendant disruption to ‘the balance of power between governors and the governed’ is normatively warranted.[34]   b. Impartiality   Morgenthau’s conception of the police as ‘law-enforcing agency’ usefully illustrates how the notion of police impartiality is, at its very core, a protean concept.[35] On one hand, the meaning of police impartiality may be viewed as identical to that of equality before the law: ‘the police are in this sense impartial if they mete out equal treatment to persons and situations which the law requires to be so’.[36] Nevertheless, the impartiality of the police also ‘performs a social and political function similar to that performed by the reputation of the courts for being the impartial “mouthpiece” of the law’.[37] As it is the purpose of law enforcement agencies in this context to ‘defend that legal order and maintain that status quo’, an institution whose purpose is ‘the defense of the legal order cannot be impartial with regard to it, but must rather be for or against it’.[38]   With respect to the use of LFR by law enforcement agencies, impartiality is closely allied with the notion of accuracy. The NIST’s Face Recognition Vendor Test clearly illustrates this association.[39] NIST assesses the correctness of classification procedures so that ‘face recognition system developers, and end users should be aware of these differences and use them to make decisions and to improve future performance’.[40] In correlating the ostensible precision of algorithms with notions of fairness and objectivity, the use of facial recognition technology by law enforcement agencies promises to improve the accuracy of suspect identification[41] and curb discriminatory uses of police discretion, such as in the stop and search context.[42]    There is, however, one problematic point that can be drawn from the use of impartiality as a rationale for the deployment of LFR by police forces. As mentioned earlier, the social and political function of police impartiality—that is, to defend the legal order and maintain the status quo—inevitably raises the question of whether LFR may in fact entrench existing biases amongst law enforcement agencies. The long and difficult history of communities of colour feeling the sharp edge of the law as a consequence of police action heightens the significance of such an inquiry.[43] Given that the disproportionate representation of Black people in the criminal justice system has, in the words of one author, become ‘the single most vexed, hotly controversial and seemingly intractable issue in the politics of crime, policing and social control’, the reinforcement of this status quo via LFR technology engages fundamental issues as to the categorisation of relations between the police and minority ethnic communities.[44]   5. International human rights law on discrimination   The principle of non-discrimination has served as a constant since the nascence of human rights law in the form of the Universal Declaration of Human Rights, which applies without ‘distinction of any kind’.[45] The Intentional Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’) and the International Covenant on Civil and Political Rights (‘ICCPR’)—the two most important treaties on the prohibition of discrimination in the context of civil liberties—provide fertile ground for an analysis of whether the use of LFR by law enforcement agencies is IHRL-compliant.   International law prohibits both direct and indirect discrimination and places positive and negative obligations on States to uphold these prohibitions. The CERD prohibits discrimination on the basis of ‘race, colour, descent, or national or ethnic origin’,[46] and obliges States, in particular, to legislate against racial discrimination and ensure compliance amongst public authorities with the obligations set out in legislation.[47] Discrimination on the same grounds is prohibited under the ICCPR. Indeed, the ICCPR further clarifies that the right to not be discriminated against ‘on the ground of race, colour, sex, language, religion or social origin’ is non-derogable,[48] even in situations such as public emergencies where States may permissibly limit other rights (freedom of expression, for example).[49] Framed within the parameters of this overarching framework, the question that falls to be determined is whether international law prohibits the use of race, or a proxy for race, as a factor in the deployment of LFR technology by law enforcement.   For the sake of this inquiry, it is necessary to outline the elements of direct and indirect discrimination under international law. Direct discrimination occurs when an act has the ‘purpose’ of ‘nullifying or impairing the recognition, enjoyment or exercise’ of a particular group’s rights or freedoms.[50] Of most direct relevance to the use of LFR by law enforcement, indirect discrimination involves actions or policies that are ostensibly neutral but which in practice have a disproportionate impact, or ‘effect’, on a particular group’s enjoyment of rights or freedoms.[51] The particular context and circumstances of an act are relevant considerations for these purposes; as confirmed by the Committee on the Elimination of Racial Discrimination in L.R. v Slovakia, ‘indirect discrimination can only be demonstrated circumstantially’.[52] Notwithstanding the recognition of ‘purpose-based’ and ‘effect-based’ discrimination under IHRL, not all forms of disparate or disproportionate treatment are impermissible. A difference in treatment will not constitute discrimination if the criteria for such differentiation are ‘legitimate’.[53]   The practice of ‘racial profiling’ in policing—namely, ‘the use of race, ethnicity, religion, or national origin rather than individual behaviour as the basis for making law enforcement decisions about who may be involved in criminal activity’—exposes the slippage between ostensibly legitimate forms of discrimination and conduct which violates international law.[54] Bowling and Phillips, for instance, have argued that crime statistics could be seen as both a ‘shield’ for law enforcement agencies in the United Kingdom ‘with which to defend the disproportionate use of stop search’, and a ‘sword’ by which ‘police officers might select suspects’ within groups purported to be likely participants in criminal activity.[55] In the American context, Morris has demonstrated how violations of international law are revealed in evidence concerning the disparate impact of pretextual traffic stops on African Americans.[56] These instances of disproportionality do not just incur profound costs at an individual level, but also directly impinge upon the relationship of minority ethnic communities with the criminal justice system: ‘the systematic profiling of black and minority ethnic groups inevitably leads these groups to lose faith in the very authorities that are meant to protect them’.[57] As a consequence, racial profiling conducted under the auspices of crime prevention objectives undermines the very enjoyment of rights guaranteed under the CERD and ICCPR. The significance of LFR in this paradigm relates to its use as a medium by which discriminatory police practices are not only reflected but entrenched.   A textual analysis of the CERD and its interpretative instruments illustrates its potential utility as a means of regulating the deployment of LFR by the police. The object and purpose of the Treaty, according to its Preamble, is to ‘combat racist doctrines and practices’.[58] Article 2 of the CERD obliges States to ‘engage in no act or practice of racial discrimination’, [59] as well as to ‘amend, rescind or nullify’ any local, national or governmental policies which are identified as having the effect of perpetuating discrimination.[60] Regarding the administration of justice, General Recommendation No. 31 provides that States must take necessary steps to prevent ‘questioning, arrests and searches’ based solely on ‘that person’s colour or features or membership of a racial or ethnic group’, or any profiling which exposes him or her to greater suspicion.[61] Correspondingly, General Recommendation No. 13 provides that law enforcement officials must be ‘properly informed about the obligations their state has entered into under the Convention’ and conduct ‘intensive training to ensure that in the performance of their duties they respect as well as protect human dignity and maintain and uphold the human rights of all persons without distinction’.[62] These provisions are significant to the extent that they provide a framework against which the discriminatory impacts of facial recognition technology can be tested, recognising the role of the police as an entry point into the criminal justice system and a means by which States can exercise coercive measures.   6. LFR and racial bias   The issue of racial bias is a point of contention amongst critics and proponents of LFR.[63] Whilst comprehensive studies such as NIST’s Face Recognition Vendor Test have identified extensive demographic biases in deployment exercises, localised assessments conducted in recent years suggest that these discrepancies have been overstated. Indeed, in April 2023, the National Physical Laboratory (‘NPL’), the national measurement standards laboratory of the United Kingdom, tested two facial recognition systems currently used by the Metropolitan Police Service and South Wales Police.[64] Although the NPL study confirmed that the LFR software had the poorest performance on Black-Female faces, it noted that the demographic inconsistencies in accuracy rates were statistically insignificant.[65] The suggestion that statistical insignificance is decisive in overcoming the issue of demographic bias, however, dislocates the use of such technology from its immediate context. The implications of inaccuracies in LFR, however miniscule they are purported to be, can be severe when paired with historical racial disparities in police contact. A false positive match places an individual at risk of being subjected to escalated action in the form of police stops, detentions, and arrests because of an incorrect match against a database.   The divergence in empirical evidence on demographic bias goes to the heart of an assessment of the legality of LFR. In Bridges , the Court of Appeal determined that, in failing to take reasonable steps to make enquiries about whether facial recognition software had bias on racial or sex grounds, the South Wales Police had failed to comply with the Public Sector Equality Duty (‘PSED’) under section 149 of the Equality Act 2010.[66] Despite the lack of clear evidence of racial bias, as Gikay observes, the Court’s findings in respect of the PSED ‘demonstrates that the current equality law [in the UK] can effectively address the concerns of inaccuracy and bias that are raised by the use of LFR technology by law enforcement authorities’.[67] In light of the widespread cross-jurisdictional use of LFR technology, the question remains as to whether IHRL principles on discrimination can be used to these same ends.[68]   7. LFR and indirect racial discrimination   Whilst law enforcement agencies generally do not make use of LFR technology for the purposes of direct discrimination, the effects of potential biases and errors, as discussed, mean that these tools can have a disproportionate impact on racial minority groups compared to other ethnic groups. This amounts to a form of indirect discrimination under the CERD, so long as the ‘criteria for such differentiation, judged against the objectives and purposes of the Convention [are not] legitimate’.[69]   The jurisprudence of the ECtHR is particularly instructive with regard to the issue of legitimate differentiation under international law.[70] The ECtHR has defined discrimination as differential treatment, ‘without an objective and reasonable justification, [of] persons in relevantly similar situations’.[71] A difference in treatment is discriminatory under Article 14 of the ECHR if it has no objective and reasonable justification—that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.[72] Examining a discrimination claim in this context thus requires a two-tiered approach, focusing first on the aim pursued, and second on the relationship between the impugned difference in treatment and the realisation of that aim.   Although the aim of efficient and effective law enforcement is likely to be recognised as a legitimate objective, the second, more difficult undertaking relates to whether the use of biased, error prone LFR technology is proportionate to this aim. Given that Contracting States’ margin of appreciation is narrower in cases involving so-called ‘suspect’ discrimination grounds, in which the category of race falls,[73] ECHR case law mandates that ‘very weighty reasons’ are required to justify why differential treatment appears both suited to and necessary in the realisation of a legitimate aim pursued.[74] Any putative gains in efficiency and so-called impartiality from the perspective of law enforcement agencies must, therefore, be balanced against the infringement upon discrimination rights and the plethora of other freedoms affected by dint of LFR technology.   The unique human rights impacts of LFR suggest that a restrictive approach should be adopted in such a proportionality assessment. As previously mentioned, the use of LFR technology in law enforcement contexts negatively affects the right to a private life due to the ‘capture and processing of biometric information without an individual’s consent’.[75] Deploying LFR technology in public places also has profound negative implications for the enjoyment of rights to freedom of expression and association. The ECtHR’s recent determination in Glukhin v. Russia is a valuable illustration to this effect.[76] In Glukhin , the Court determined that the conviction of a protestor for failing to notify Russian authorities of his intention to hold a solo demonstration, and the use of LFR technologies within this context, violated his rights to respect for his private life and freedom of expression, protected under Articles 8 and 10 of the ECHR respectively.[77]   Viewed in light of this catalogue of rights violations, the potential demographic biases in LFR technology ‘portend a strong foundation for further restricting how governments use’ such tools on indirect discrimination grounds.[78] Indeed, as previously stated, Article 2 of the CERD mandates States to nullify laws and regulations which have the effect of perpetuating racial discrimination.[79] General Recommendation No. 31 further provides that States must ‘implement national strategies or plans of action aimed at the elimination of structural racial discrimination’.[80] The significance of these provisions in relation to the governance of LFR is made clear by the absence of a legal framework in various jurisdictions that clearly define the use, regulation and oversight of such technology.[81] In the absence of targeted regulation, the increasing deployment of facial recognition technology in policing will only perpetuate existing societal divisions and erode confidence in the criminal justice system amongst minority ethnic communities.   8. Conclusion   Like the telescreens that captured Winston’s attention in the opening pages of 1984, the human rights impacts of LFR may be dimmed, but cannot be shut off completely. Taking stock of the positive IHRL obligations on States and the rights affected by indirect discrimination, this paper has suggested that the use of biased and error-ridden facial recognition technology is unlikely to be proportionate to a legitimate aim of effective law enforcement. Such practices should, in this author’s opinion, amount to impermissible indirect discrimination under the ECHR and under international law in general. Whilst this conclusion is necessarily qualified by the divergence in evidence on demographic bias, it recognises the possibility of technological advances either heightening or mitigating the risk of indirect discrimination in the deployment of LFR. This latent risk means that police forces making use of such technology ought to be alive to the prospect of racial profiling occurring and the possibility of trust amongst minority ethnic groups being further diminished. Udit Mahalingam Udit Mahalingam is a recent LLM graduate from the University of Cambridge. He is interested in civil liberties and human rights issues, particularly within the context of national security and law enforcement practices. [1] George Orwell, 1984 (Houghton Mifflin Harcourt 2013) 3-4. [2] Steven Morris, ‘Anger over use of facial recognition at South Wales football derby’ The Guardian (London, 12 January 2020) < https://www.theguardian.com/technology/2020/jan/12/anger-over-use-facial-recognition-south-wales-football-derby-cardiff-swansea > accessed 1 January 2024. [3] Zoe Tidman, ‘Metropolitan Police deploys facial recognition in central London with two hours’ warning’ The Independent (London, 20 February 2020) < https://www.independent.co.uk/news/uk/crime/met-police-facial-recognition-technology-city-westminster-a9346831.html > accessed 1 January 2024. [4] Indeed, the use of LFR by law enforcement can be viewed as part of the broader phenomenon of so-called ‘predictive policing’. See Andrew Guthrie Ferguson, ‘Big Data and Predictive Reasonable Suspicion’ (2015) 13(2) Pa. L. Rev. 327. [5] Sam Shead, ‘“Orwellian” Surveillance Cameras Face Legal Battle’ ( Forbes , 25 July 2018) < https://www.forbes.com/sites/samshead/2018/07/25/orwellian-surveillance-cameras-face-legal-battle/?sh=433d578e1e39 > accessed 1 January 2024. [6] Matthew Ryder KC, ‘Independent legal review of the governance of biometric data in England and Wales’ (‘The Ryder Review’) ( Ada Lovelace Institute , June 2022) [1.3]. [7] Although the focus of the present article, policing is not the only area in which issues around the regulation of LFR arise—see Information Commissioner’s Office, ‘Information Commissioner’s Opinion: The Use of Live Facial Recognition Technology in Public Places’ (18 June 2021) < https://ico.org.uk/media/for-organisations/documents/2619985/ico-opinion-the-use-of-lfr-in-public-places-20210618.pdf > accessed 1 January 2024. [8] Ryan Calo, ‘Robotics and the Lessons of Cyberlaw’ (2015) 103 Calif. L. Rev. 513, 549. [9] Ruth B Carter and Gary E Marchant, ‘Principles-Based Regulation and Emerging Technology’ in Gary E Marchant, Braden R Allenby and Joseph R Herket (eds), The Growing Gap Between Emerging Technologies and Legal-Ethical Oversight (Springer 2011) 165. [10] David R Johnson and David Post, ‘Law and Borders—The Rise of Law in Cyberspace’ (1996) 48 Stan L. Rev. 1367, 1367. [11] Calo (n 8) 552. [12] ibid 515. [13] Meg Leta Jones, ‘Does Technology Drive Law? The Dilemma of Technological Exceptionalism in Cyberlaw’ (2018) Journal of Law, Technology & Policy,   101, 101. [14] ibid 130. [15] Jack M Balkin, ‘The Path of Robotics Law’ (2015) 6 Cal L. Rev 45, 45. [16] ibid 45. [17] Lucas D Introna and Helen Nissenbaum, ‘Facial Recognition Technology A Survey of Policy and Implementation Issues’ 3 < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1437730 > accessed 1 January 2024. [18] See, for example, Vera Lúcia Raposo, ‘The Use of Facial Recognition Technology by Law Enforcement in Europe: A Non-Orwellian Draft Proposal’ (2022) 29 European Journal on Criminal Policy and Research 515; Diego Naranjo, ‘Your face rings a bell: How facial recognition poses a threat for human rights’ < https://repository.gchumanrights.org/server/api/core/bitstreams/61aa23ad-0262-4f46-bcfe-fc74a1d485f3/content > accessed 1 January 2024; Daragh Murray, ‘Facial recognition and the end of human rights as we know them?’ (2024) 4(2) Netherlands Quarterly of Human Rights. [19] Qingxiu Bu, ‘The global governance on automated facial recognition (AFR): ethical and legal opportunities and privacy challenges’ (2021) 2 International Cybersecurity Law Rev 113, 116-118. [20] Amy K Lehr and William Crumpler, ‘The Impact of FRT Deployment on Human Rights’ in Facing the Risk: Part 2: Mapping the Human Rights Risks in the Deployment of Facial Recognition Technology  (Center for Strategic and International Studies 2021) 10 . [21] Discrimination issues arising from the use of LFR technology have, however, been considered in the context of federal laws and regulations in the United States—see, for example, Rachel S Fleischer, ‘Bias In, Bias Out: Why Legislation Placing Requirements on the Procurement of Commercialized Facial Recognition Technology Must Be Passed to Protect People of Color’ (2020) 50(1) Public Contract Law Journal 63. [22] Ben Bradford, Julia A Yesberg, Jonathan Jackson, and Paul Dawson, ‘Live Facial Recognition: Trust and Legitimacy as Predictors of Public Support for Police Use of New Technology’ (2020) 60(6) The British Journal of Criminology 1502, 1504. [23] Peter Fussey and Daragh Murray, ‘Independent Report on the London Metropolitan Police Service’s Trial of Live Facial Recognition Technology’, ( University of Essex Human Rights Centre , July 2019) < https://repository.essex.ac.uk/24946/1/London-Met-Police-Trial-of-Facial-Recognition-Tech-Report-2.pdf > accessed 1 January 2024. [24] ibid 19. [25] ibid 19. See also ‘Facing the Camera: Good Practice and Guidance for the Police Use of Overt Surveillance Camera Systems Incorporating Facial Recognition Technology to Locate Persons on a Watchlist, in Public Places in England & Wales’ ( Surveillance Camera Commissioner , November 2020) [3.42] < https://assets.publishing.service.gov.uk/media/5fc75c5d8fa8f5474a9d3149/6.7024_SCC_Facial_recognition_report_v3_WEB.pdf > accessed 1 January 2024. [26] ibid 20. [27] ibid 19. [28] Kristine Hamman and Rachel Smith, ‘Facial Recognition Technology: Where Will It Take Us?’ ( Criminal Justice Magazine , 12 April 2019) < https://www.americanbar.org/groups/criminal_justice/resources/magazine/archive/facial-recognition-technology-where-will-it-take-us/ > accessed 1 January 2024. [29] Irena Nesterova, ‘Mass data gathering and surveillance: the fight against facial recognition technology in the globalized world’ (2020) 74 SHS Web Conf 2. [30]  R (Bridges) v Chief Constable of South Wales and Ors [2019] EWHC 2341 (Admin) [57]. [31] Patrick Grother, Mei Ngan, and Kayee Hanaoka, ‘Face Recognition Vendor Test (FRVT) Part 3: Demographic Effects’ ( National Institute of Standards and Technology , December 2019) < https://nvlpubs.nist.gov/nistpubs/ir/2019/nist.ir.8280.pdf > accessed 1 January 2024. [32] ibid 2. [33] Lindsey Barrett, ‘Ban facial recognition technologies for children-and for everyone else’ (2020) 26(2) Boston University Journal of Science and Technology Law. [34] Joe Purshouse and Liz Campbell, ‘Automated facial recognition and policing: A Bridge too far?’ (2021) 42 Legal Studies 209, 209. [35] Hans J. Morgenthau, ‘The Impartiality of the International Police’ (1968) 21(2) Revista Española de Derecho Internacional 267, 269. [36] ibid. [37] ibid. [38] ibid. [39] Grother, Ngan, and Hanaoka (n 31) 3. [40] ibid. [41] Kyriakos Kotsoglou and Marion Oswald, ‘The long arm of the algorithm? Automated Facial Recognition as evidence and trigger for police intervention’ (2020) 2 Forensic Sci Int Synergy 86, 87. [42] See, for example, Sir William Macpherson of Cluny, The Stephen Lawrence Inquiry: Report of an Inquiry (Cm 4262-I, 1999) [6.45]. [43] See, for example, Joel Miller, ‘Stop and Search in England: A Reformed Tactic or Business as Usual?’ (2010) 50(5) Brit. J. of Criminology 954, 954. [44] Robert Reiner, ‘Race and Criminal Justice’ (1989) 16(1) Journal of Ethnic and Migration Studies 5, 5. See also Julia A Yesberg, Arabella Kyprianides, Ben Bradford, Jenna Milani, Paul Quinton, and Oliver Clark-Darby, ‘Race and support for police use of force: findings from the UK’ (2022) 32(7) Policing and Society 878, 878. [45] Universal Declaration of Human Rights, G.A. Res. 217 A(III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948), Art 2. [46] Intentional Convention on the Elimination of All Forms of Racial Discrimination (CERD), Art. 1(a), 660 U.N.T.S 195 (1966). [47] ibid, Art. 2(a), Art. 2(c). [48] International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), UN GAOR, 21st Sess., Supp. No. 16, Art. 4(1). [49] ibid, Art. 19(3); Human Rights Committee (‘HRC’), General Comment No. 34, Freedoms of opinion and expression [21] (2011). [50] HRC, General Comment No. 18, Non-discrimination [1] (1989). [51] ibid. [52]  L.R. v. Slovakia, Communication No. 31/2003, Committee on the Elimination of Racial Discrimination [10.4] (1996). [53] See, for example, Broeks v. The Netherlands , Communication No. 172/1984, Human Rights Committee, U.N. Doc. CCPR/C/OP/2 [13]: ‘The right to equality before the law and to the equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26.1’. [54] Open Society Justice Initiative, Addressing Ethnic Profiling in Policing  (Open Society Initiative 2009) 17. [55] Ben Bowling and Coretta Phillips, ‘Disproportionate and Discriminatory: Reviewing the Evidence on Police Stop and Search’ (2007) 70(6) MLR 936, 948. [56] Maria V. Morris, ‘Racial Profiling and International Human Rights Law: Illegal Discrimination in The United States’ (2001) 15 Emory Int’l L. Rev 207, 211. [57] Michael Shiner, Zoe Carre, Rebekah Delsol and Niamh Eastwood, ‘The Colour of Injustice: ‘Race’, drugs and law enforcement in England and Wales’ ( StopWatch , 14 October 2018) iv < https://www.stop-watch.org/what-we-do/research/the-colour-of-injustice-race-drugs-and-law-enforcement-in-england-and-wales/ > accessed 1 January 2024. [58] CERD (n 46), Preamble. [59] ibid, Art. 2(1)(a). [60] ibid, Art. 2(1)(c). [61] ‘General Recommendation No. 31, General Recommendation XXXI on the Prevention Of Racial Discrimination in the Administration and Functioning of the Criminal Justice System’ (Committee on the Elimination of Racial Discrimination, 2005) 20. [62] General Recommendation No. 13, General Recommendation XIII on the Training of Law Enforcement Officials in the Protection of Human Rights’ (Committee on the Elimination of Racial Discrimination, 1993) 2. [63] See, for example, the Court of Appeal’s observations in R (Bridges) v Chief Constable of South Wales and Ors [2020] EWCA Civ 1058 [199].   [64] Tony Mansfield, ‘Facial Recognition Technology in Law Enforcement Equitability Study: Final Report’ ( National Physical Laboratory , March 2023) < https://science.police.uk/site/assets/files/3396/frt-equitability-study_mar2023.pdf > accessed 1 January 2024. [65] ibid 4. [66]  Bridges (n 63) [201]. [67] Asress Adimi Gikay, ‘Regulating Use by Law Enforcement Authorities of Live Facial Recognition Technology in Public Spaces: An Incremental Approach’ (2023) 82(3) CLJ 414, 431. [68] The repression of the Uyghur community in Xianjiang represents one of the most notable instances of systematic LFR deployment and is illustrative of the technology’s wide-ranging human rights impacts. Indeed, the UN Office of the High Commissioner for Human Rights have reported on the existence of ‘a sophisticated, large-scale and systematized surveillance system’ in Xinjiang that is ‘driven by an ever-present network of surveillance cameras, including deploying facial recognition capabilities’. See UN Office of the High Commissioner for Human Rights, ‘OHCHR Assessment of Human Rights Concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China’ ( OHCHR , 31 August 2022) [96] < https://www.ohchr.org/sites/default/files/documents/countries/2022-08-31/22-08-31-final-assesment.pdf > accessed 1 January 2024. [69] ‘General Recommendation No. 14, General Recommendation XIV on Article 1, Paragraph 1, of The Convention (Committee on the Elimination of Racial Discrimination, 1993) 2. [70] See: European Convention for the Protection of Human Rights and Fundamental Freedoms, Sept. 3, 1953, art. 14, 213 U.N.T.S 221. Article 14 of the ECHR is materially similar to the anti-discrimination provisions in the ICCPR and CERD. It provides that ‘the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. [71]  D.H. and Others v. the Czech Republic , App. No. 57325/00, [44] (ECtHR. Feb. 7, 2006). [72]  Molla Sali v Greece , App no. 20452/14, [135] (Eur. Ct. H.R. Dec. 9, 2018); Eweida & Others v United Kingdom , App nos. 48420/10, 59842/10, 51671/10 and 36516/10, [88] (ECtHR. Jan. 15, 2023). [73] For a comprehensive overview of the development of ‘suspect’ discrimination grounds in ECHR case law, see: Oddný Mjöll Arnardóttir, ‘The Differences that Make a Difference: Recent Developments on the Discrimination Grounds and the Margin of Appreciation under Article 14 of the European Convention on Human Rights’ (2014) 14(4) Hum. Rights Law Rev. 647, 649-652. [74] The ECtHR originally developed the ‘very weighty reasons’ test in cases involving sex or gender discrimination. See: Abdulaziz, Cabales and Balkandali v United Kingdom , App nos. 9214/80, 9473/81 and 9474/81 [78] (ECtHR, 28 May 1985). Even if not referring expressly to the ‘very weighty reasons’ test as such, the Court has reasoned that racial discrimination is ‘a particularly invidious kind of discrimination’, which ‘in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction’: Timishev v. Russia , App nos. 55762/00 and 55974/00 (ECtHR, December 13, 2005) [56]. [75] Lehr and Crumpler (n 20) 10. [76]  Glukhin v. Russia, App   no. 11519/20 (ECtHR, 4 July 2023). [77] ibid [90]-[91] [78] Monika Zalnieriute , ‘Glukhin v. Russia App. No. 11519/20 Judgment’ (2023) 111(4) American Journal of International Law 695, 696. [79] CERD (n 46), Art 2(1)(c). [80] General Recommendation No. 31 (n 61), 5(i). [81] In 2022, the Ryder Review recommended, inter alia, that there was an ‘urgent need for a new, technologically neutral, statutory framework’ for the governance of biometric data in the United Kingdom. See Ryder (n 6) para 8.2. For a comprehensive overview of ‘potential legal and regulatory approaches in selected jurisdictions’ towards LFR governance, see Bu (n 19) 116.

‘I am staying unsettled and trying not to talk for three years’, the painter Agnes Martin wrote to a friend in the late 1960s, adding, ‘I do not think that there will be any more people in my life’.[1]   This vow of silence was soon broken, the prediction of solitude proving false. Nevertheless, Martin did leave New York City rather dramatically, or at least unexpectedly, in 1967. She had spent ten years there as a working artist, belatedly gaining, in her mid-fifties, some recognition for her work’s intimate geometries and whispery colours. Following her departure, she spent eighteen months wandering, mainly in the American Northwest, before resettling in New Mexico. There, she established herself, at first, on a punishingly remote mesa. Turning her back on the rising capital of the international artworld forged a cultish image of Martin as a kind of saint of the desert. Fig 1. Falling Blue (Agnes Martin 1963, oil and graphite on linen, 183 x 183 cm). She wasn’t alone in being distinguished for her withdrawal. In ‘The Aesthetics of Silence’, written at the time of Martin’s retreat from New York, Susan Sontag surveyed the many artists who were turning away from public institutions, proclaiming, ‘Most valuable art in our time has been experienced by audiences as a move into silence (or unintelligibility or invisibility or inaudibility)’.[2] Louise Bourgeois, an artist born a year before Martin, in 1911, made some of her most recalcitrant work in the mid-sixties. Bourgeois’ stubbornly formless sculptures in plaster and latex described, roughly, a series of hideouts: nests, lairs, caves. The work’s hermeticism matched Bourgeois’ own, as her fame, cemented by very different bodies of mostly figurative work, was then still a decade in the future.   In Idra Novey’s acclaimed 2023 novel Take What You Need , both Martin and Bourgeois figure as joint spirit guides for the protagonist, Jean, a mad old bird living alone in rust-belt America, sustaining herself on junk food while welding towering assemblages from scrap metal. Having myself written a biography of Martin,[3] and embarked on one of Bourgeois, I read Novey’s book with interest. ‘I had no nerve in the morning if I skipped my nightly Louise’, [4] Jean reveals. ‘To keep from passing out, I tried to call up my Agnes Martin mantra about letting expectations go—to accept inaccuracy or accept failure’,[5] she says, while stanching a gaping wound caused by the errant blade of an electric grinder. Gruff, but kindhearted, and determined to live independently in her inhospitable, isolated studio, Jean is impervious to pain and deprivation. Fig 2. The Couple (Louise Bourgeois 2003, bronze, 155 x 76 x 66 cm). Novey’s admirable, albeit fanciful, portrait of Jean typifies a popular—if generally misleading—notion of artistic vocation as marked by determined retirement from the world. It also speaks to the fact that few artists achieve fame. When attention comes, it often takes its time. Bourgeois wasn’t well known until she was 70—a wait only a little longer than Martin’s—but she was hardly in hiding until then. Married to an esteemed art historian and curator, socially connected to many artists both French and American, and the mother of three sons, Bourgeois lived in the thick of things. Martin spent her decade in New York City living in Coenties Slip, a close-knit Manhattan community of artists who, paradoxically, craved privacy (and, not coincidentally, were largely queer, at a time when being homosexual was acutely dangerous). She, too, consorted with notable colleagues and frequented various vanguard art events. Her closest friends at the Slip included Ellsworth Kelly and Lenore Tawney; Jasper Johns and Robert Rauschenberg were neighbours. It’s true that both Martin and Bourgeois were beset and sometimes sidelined by internal clamour, which was diagnosed and treated, if not exactly cured (an outcome that neither really sought). Both wrote copiously, if elliptically, the snippets that were publicly released proving helpful to admirers with a narrative bent.   Most importantly, both artists were immensely ambitious, for their work and also for its public. Martin’s pledge to abstain from speaking was made to Sam Wagstaff, a prominent curator and collector as well as a friend. She had left her beloved New Mexico for New York on the urging of a visiting gallery owner, the renowned Betty Parsons, who made the move a condition of Martin’s representation. From the late 1940s on, Bourgeois actively sought, and periodically attained, exhibitions in both museums and commercial galleries. After she became famous, her appetite for engagement with peers, younger artists, and others in the artworld only grew (although at the end of her long life she became increasingly reclusive). Recognition never comes by accident. When Virginia Woolf mused a century ago on the history of female writers’ suppression and encouraged women to insist on a room of their own—one with a lock on the door—she also insisted they have an income (and, unafraid of crass specifics, named an amount). She advocated neither monasticism nor vows of poverty. In the 1979 classic, The Madwoman in the Attic , Sandra Gilbert and Susan Gubar compare Emily Dickinson’s self-description to that of her contemporary, Walt Whitman: ‘While Dickinson, the “slightest in the House”, reconciles herself to being Nobody, Whitman genially inquires, “Do I contradict myself? / Very well then, I contradict myself, / (I am large, I contain multitudes)”’.[6] But Dickinson, the authors maintain, not only wrote prodigiously, she wanted to be read . Gubar and Gilbert argue that while Dickinson struggled with the ‘double bind’ of the woman poet incapable of self-assertion, yet determined to succeed’,[7] she chose, on occasion, a voice of no small aggression. ‘My Life had stood—a Loaded Gun’,[8] she wrote.   I have so far focused on departures from public life made by women, arguing that such absences are often both overstated and involuntary. My emphasis has been on those artists (and writers) whose emotions and thoughts were subject to disorder, and on their determination to succeed nonetheless. Hypostasizing the contradictions of this position is the decidedly publicity-friendly Yayoi Kusama, one of the world’s most widely celebrated artists. Now best known for spectacular installations of lights, mirrors, and shiny patterned objects, the ninety-four-year-old has been a resident in a mental-health facility for five decades. The spectrums on which lie solitude and agoraphobia, melancholy and clinical depression, flights of fancy and schizophrenia, do run through many women artists’ biographies. But this propensity might say more about a genre of biographies than their subjects.   Equally important, there is no shortage of men whose professional and personal lives can be plotted along the same lines. This is true not just of Van Gogh and Gauguin, or social isolates Adolf Wölfli, Henry Darger, and James Castle, but also plain ornery dudes like Donald Judd, who headed to the ends of the earth (well, Marfa, Texas) only to have the artworld follow him. Men not only compel attention with less effort than women, but can retreat with less suspicion. If the tourism that Judd’s removal produced is unusual, his choice to leave New York wasn’t. The cosmopolitan artworld can be soul-sapping, and many artists depart to more salutary places once they’ve established their careers, some ostentatiously (consider Anselm Kiefer’s palatial rural strongholds, glorified in a misty, if epic, recent film by Wim Wenders), most more modestly. At the same time, two mid-century modernists deeply associated with a certain kind of removal from the grubby business of making and selling art objects—John Cage, whose Zen-inspired work hovers at the edge of materiality, and Duchamp, who famously excused himself from showing art at all for several decades—were both consummately urbane showmen, ready and willing to reel in audiences and fully engaged throughout their lives with contemporary culture.   To be clear, many artists do choose retreat for both secular and spiritual reasons. Just as important, there is a political valence to exiting society. At present, survivalism—living off the grid—is generally promoted by those rather far to the right, politically. While few artists fit the profile of conspiracy-theorizing deep-woodsmen, commitment to progressive art does not necessarily equate with left-leaning political positions. For artists of whatever political (or religious) stance, there is also historical variability in the choice—or possibility—of silence. Visual art has always been, almost by definition, a way of exceeding (or evading) verbal language. But ever since art education shifted, in the mid-20 th  century (and especially in the US), from academies and ateliers to degree-granting institutions with liberal arts as well as studio curricula,[9] artists have been trained to speak up. Crafting and presenting an artist’s statement is a culminating exercise in the majority of graduate-level studio programs. Many artists are at heart opposed to this mandate, but opposition to (or discomfort with) articulating one’s thoughts has long since been a professional nonstarter.   Here, art discourse, and in particular art criticism (of which I am a practitioner), comes into the arena. Inside the dwindling publications that still include coverage of contemporary art, artists’ voices are increasingly favoured over those of writers. Contours around criticism redrawn decades ago by the Internet were reinforced during the pandemic: at home with a screen, everyone can be their own exegete (or press agent). And while expertise has fallen into disrepute, the composition of art writing’s readership has grown increasingly murky. Obscure though its outline may be, the artworld—its current slump notwithstanding—has in recent years grown mightily. One thing is certain: fame and critical approval have conclusively parted ways.   Ben Davis, critic for Artnet , wrote in late 2023 about the sudden rise of Devon Rodriguez, whom Davis described at the time as ‘almost certainly the most famous artist in the world’. Still in his 20s, Rodriguez, working spontaneously and without announcing himself to his subjects, has been sketching people in the subway then turning the sketches into paintings. Photography was also involved. Davis, who judged the work skilled and appealing but hardly novel, reported that Rodriguez had more than 30 million followers on TikTok (in 2024, Time.com puts the number at 33 million), and made more than $20,000 per day for sponsored content. He met with then-US President Joe Biden. Yet, Davis writes, ‘[a]lmost no one I know has ever heard of him’.[10] Davis is thoughtful and deeply informed—it would be hard to accuse him of social or cultural bias—but he was clearly not spending a great deal of time on TikTok. Should he have been? Is Rodriguez an obscure young artist, or a global celebrity? Is he working, as the punning title of his 2023 exhibition in a pop-up gallery in Chelsea had it, underground? A comparison might be made with social-practice artists, who commit their efforts to communities of various kinds in projects that involve service and activism, often at the expense of their personal status and income. How should they measure their impact against that of someone like Rodriguez?   Addressing the question of withdrawal requires specificity about the public that is being spurned. The confusion that currently prevails concerning art’s constituency could make anyone want to run and hide. Yet engagement is more important than ever—and many artists said to have foresworn it in fact did no such thing. Nancy Princenthal Nancy Princenthal is a New York-based writer whose Agnes Martin: Her Life and Art received the 2016 PEN/Jacqueline Bograd Weld Award for Biography. She is also the author of Unspeakable Acts: Women, Art, and Sexual Violence in the 1970s and Hannah Wilke , and her essays have appeared in monographs on Doris Salcedo, Alfredo Jaar, Willie Cole and Gary Simmons, among others. A longtime Contributing Editor (and former Senior Editor) at Art in America , she has also written for the New York Times , Hyperallergic , and elsewhere, and taught at Bard College, Princeton University, Yale University, and the School of Visual Arts. [1] Samuel J. Wagstaff papers, AAA.wagssamu, Archives of American Art, Smithsonian Institution, Washington, DC. [2] Susan Sontag, ‘The Aesthetics of Silence’ in Susan Sontag, Styles of Radical Will  (Farrar, Straus and Giroux 1976) 7. [3] Nancy Princenthal, Agnes Martin: Her Life and Art  (Thames and Hudson 2015). [4] Idra Novey, Take What You Need  (Viking 2023) 25. [5] ibid 17. [6] Sandra M. Gilbert and Susan Gubar, The Madwoman in the Attic: The Woman Writer and the Nineteenth-Century Literary Imagination  (Yale University Press 1984) 556. [7] ibid 584. [8] ibid 607. [9] Howard Singerman makes this argument in Art Subjects: Making Artists in the American University  (University of California Press 1999). [10] Ben Davis, ‘TikTok Star Devon Rodriguez Is Now the Most Famous Artist in the World. But What About His Work?’ ( Artnet , 6 October 2023) < https://news.artnet.com/art-world-archives/devon-rodriguez-painter-tiktok-underground-2373157 > accessed 8 December 2024.

Introduction   Governments have launched a series of ambitious digital strategies over recent decades to improve how they operate and interact with citizens. However, many of their anticipated benefits have yet to be achieved, leaving governments ill-equipped to respond effectively to a growing array of social and economic policy challenges, both domestic and international. The House of Commons Public Accounts Committee recently expressed concerns at:   T he number of complex, large-scale digital programmes we continue to see fail […] Departments have failed to understand the difference between improving what currently exists and real digital transformation, meaning they have missed opportunities to move to modern, efficient ways of working. [1]   These setbacks come despite nearly three decades of digital initiatives in which the UK was a pioneer: its first pan-government website launched in 1994 and within a few years brought together information from 180 separate public sector organisations. [2]  By 1996, the UK government was exploring ‘the opportunity to transform the whole operation of government’. [3] And in 1998, work was underway to exploit technology to ‘facilitate fundamental changes in the relationships between the citizen and the state […] with implications for the democratic process and structures of government’. [4] By 2002, the ambition was ‘to enhance our democratic structures […] to give individuals more choice about how they can participate in the political process’. [5] Technology was increasingly seen as integral to the creation of a more participative, transparent, and collaborative form of democratic governance and citizen empowerment. [6]   However, between the idea and the reality falls the shadow. As futurist Alvin Toffler predicted over fifty years ago, governments’ industrial era institutions and practices have proved ill-equipped to cope with the pace of technological change. [7] In place of a democratic renaissance, subsequent decades have seen the mass digitisation and automation of governments’ industrial-era institutions and practices, creating often undesirable results. [8]  Technology has all too often become synonymous with processes that undermine the rule of law [9] and democracy. [10] It’s used to industrialise surveillance, [11]  erode legal but ‘offensive’ free speech, [12]  and automate injustice and inequality in the name of bureaucratic ‘efficiency’. [13]   These outcomes are the opposite of what was originally promised. They stifle democratic reform and disadvantage the most vulnerable members of society. [14] In parallel, governments exhibit a near-perpetual state of panic about all things digital—artificial intelligence, AdTech, the gig economy, hybrid warfare—and provide inadequate and lethargic political responses to proven harms, including the toxic impact of social media. [15]  No wonder many democracies ‘are experiencing serious institutional debilities and weak public confidence’, [16] with over half the world’s democracies reported to be in retreat. [17]   Western governments’ failure to exploit technology as a strategic asset stands in sharp contrast to its exploitation by authoritarian regimes. From China [18] to Iran, [19] North Korea, [20] and Russia, [21] autocracies have integrated technology deep within their policies and plans, from pervasive national surveillance and suppression of free speech and civil society, to disrupting the affairs of other nations using everything from bot-driven false information to deepfakes and cyber-attacks. [22]   Failing to harness technology as a means of democratic renewal has left our governments ill-placed to tackle an increasingly complex and challenging political landscape. If democracies are to survive and prosper, they need a more effective and principled approach to technology—rooted in a vision of what they stand for:   A n affirmative, persuasive, secure and privacy-preserving, values-driven, and rights-respecting view of how technology can enable individual dignity and economic prosperity, and also what they will stand against—the misuse and abuse of technology to repress, control, divide, discriminate, and disenfranchise. [23]   Rethinking government   The use of technology to digitise policy and administrative silos within and between central government departments and local, regional, and national administration, creates painful—and sometimes deadly [24] —divisions in people’s lives. These boundaries prevent governments from working across their historical organisational structures to become more effective in how they learn, plan, adapt, and respond to domestic and international challenges.   Ed Vaizey, a former UK government minister, commented in 2017 that he ‘would completely re-engineer government. I would abolish government departments, I would have government by task’. [25]  His remarks echo the earlier political desire to use technology as a force for good in the modernisation and reform of government, and to:   P rovide better and more efficient services to businesses and to citizens, improve the efficiency and openness of government administration, and secure substantial cost savings for the taxpayer. (1996). [26]   M ake sure that public service users, not providers, are the focus, by matching services more closely to people’s lives […] [and] deliver public services that are high quality and efficient. (1999). [27]   Such sentiments reveal an enlightened political interest in harnessing the positive potential of science and technology, one memorably expressed in Prime Minister Harold Wilson’s 1963 speech when he asserted that ‘The Britain that is going to be forged in the white heat of this revolution will be no place for restrictive practices or for outdated methods on either side of industry’. [28] However, the subsequent failure of successive governments to modernise their ‘outdated methods’ and ‘industrial era institutions and practices’ has become a contributory factor to the decline in democracy and our public institutions. [29]   Technology’s policy implications   Digital technologies and practices can help governments access, analyse, and model information within and between the silo boundaries of current public administration. They offer new opportunities to engage communities and individuals in shaping and co-creating their own futures. They can inform the evidence base, continuously enlightening policymaking to deliver better outcomes. And they have an essential role in helping to reshape, redesign, and optimise organisational structures and practices to deliver better outcomes that escape the outdated methods prevalent in both public and private sectors. [30]   However, the political perception of technology is stuck in the web-centric mindset of the late twentieth century. Digital government programmes focus on creating elegant website veneers over industrial era processes, [31] marginalising the citizen/state relationship into a transactional one between ‘customers’ and ‘services’. This digitisation of point-to-point online transactions comes at a high cost: it displaces the role of technology in transforming governments’ ability to better understand and solve complex and interweaving social and economic problems. And it prioritises bureaucratic structures and processes over the radical overhaul of public policymaking and administration. [32]   The customer/service mindset is in part a toxic hangover of new public management (NPM), the private sector concepts parachuted into the public sector during the 1980s. Digital government strategies adopt the language and mindset of NPM in their ideological emphasis on ‘users’ and ‘services’. They often lack formal mechanisms to assess whether digital initiatives are legally compliant: developers can make decisions and write code that creates or breaks policy, bypassing policymakers, legislators, and voters—a problem described by Lawrence Lessig, an American academic and attorney, as ‘code as law’:   The code regulates. It implements values, or not. It enables freedoms, or disables them. It protects privacy, or promotes monitoring. People choose how the code does these things. People write the code. Thus the choice is not whether people will decide how cyberspace regulates. People—coders—will. [33]   The mass digitisation of paper-era transactions has become the primary output of many digital programmes. Yet governments knew as early as 1996 that ‘applying technology to existing working practices, or at the customer interface, will not achieve the full benefits that information technology has the power to deliver’. [34]  The result is that digital strategies all too often fail three critical tests. The ‘Toffler test’—modernising governments’ industrial era institutions and practices. The ‘Wilson test’—tackling outdated methods. And the ‘Vaizey test’—reorganising government and public policy around outcomes.   The digitisation of government’s historical configuration presents a major impediment to progress. It makes the public sector harder to redesign and integrate around citizens, cross-cutting policies, better policy outcomes, and improved administration. The failure to modernise governments’ internal capabilities, data, structures, processes, policies, and operations undermines their ability to anticipate, react, and respond in more timely, appropriate, and effective ways to an increasingly challenging and volatile world. As a former UK Permanent Secretary, Jonathan Slater, recently commented, ‘Whitehall’s remoteness from the public and frontline results in policymaking which is fundamentally inadequate to address the challenges we face’. [35]   The threat   Technology itself is not inherently good or bad, but neither is it neutral, as historian Melvin Kranzberg reminded us. [36]  A relentless focus on the positive applications of technology is essential to protect and advance democracy. However, the absence of guiding democratic principles for the design, development, and implementation of technology leaves many digital government programmes serving less altruistic short-term goals. [37]   This democratic deficit has economic and societal ramifications that reach well beyond governments’ domestic political programmes. When former Soviet leader Mikhail Gorbachev declared Russia to be on ‘the path of democracy and not of empire’, [38]  followed by the dissolution of the USSR in the late 1980s and early 1990s, it seemed as if the citizen centred freedoms and practices of the West had triumphed. For a moment in time an opportunity existed to reforge a global democratic renaissance, to reaffirm technology as a force for good, rooted unashamedly in the principles of liberty, justice, and the rule of law proclaimed by the Universal Declaration of Human Rights.   However, as with Russia’s own subsequent retreat into autocracy and militarism, many democratic governments have chosen a very different path. At their worst, they mirror the behavioural traits of technology corporations and authoritarian regimes. They deploy often unproven technologies that automate inequality and undermine human rights and the exercise of justice in the pursuit of their own political goals. Many of the artificial intelligence governance principles belatedly being implemented by governments and businesses, for example, make no mention of human rights. [39]   These failings need an urgent fix: the number of countries in the world with full democracies remains low, at just 14.4% in 2022. [40] Most people live in flawed democracies, or hybrid or authoritarian regimes. The latter represents the largest group: 36.9% of the world’s population endures the diktats of a privileged, and often brutal, controlling elite. Across the categories assessed by The Economist Intelligence Unit —electoral process and pluralism, functioning of government, political participation, political culture, and civil liberties—technology can play an essential beneficial role in re-asserting and protecting fundamental democratic rights, rather than accelerating their demise.   The opportunity   Today   Since the late 1990s, technology has been used to streamline citizens’ transactional interactions with government, from obtaining a new passport, to completing self-assessment tax returns, or making an appointment with a GP. Yet policymaking is little changed, and neither are governments’ associated structures, practices, and administration.   Citizens’ digital experiences of the public sector mimic the siloed, organisation-centric processes and forms that preceded them. Inside government, Ministers and officials lack timely access to basic information and insight about how their department is performing, what’s going well, what’s broken, what citizens think, or insight into the impact of their policies, short- and long-term, across departments and national, regional, and local government.   To paraphrase computer programmer Melvin Conway, any organisation that designs a system will produce a design that mirrors the organisation’s existing structure. [41]  In large-scale, siloed organisations like government, digital initiatives reflect and reinforce existing hierarchies and silos. It’s the opposite of what’s required: as Conway also noted, ‘flexibility of organization is important to effective design. Ways must be found to reward design managers for keeping their organizations lean and flexible’. [42]  Yet governments are well behind the curve in using technology to provide such flexibility, despite the long-known benefits of networked forms of organisation:   Networks are ‘lighter on their feet’ than hierarchies. […] [they involve] discrete exchanges [not] by administrative fiat, but through networks of individuals engaged in reciprocal, preferential, mutually supportive actions […] the parties to a network agree to forego the right to pursue their own interests at the expense of others. [43] Tomorrow   The UK government recognised over two decades ago that:   Many of the biggest challenges facing Government do not fit easily into traditional Whitehall structures […] [We need] a comprehensive package of measures to improve and modernise the way we handle cross-cutting issues […] the role of leadership; improving the way policy is formulated and implemented; the need for new skills; budgetary arrangements, and the role of external audit and scrutiny. [44]   Technology can help governments transition from their industrial era policy boundaries and rigid operational and financial hierarchies towards more effective, networked, and collaborative ways of working. Doing so will help officials work beyond ‘the boundaries of their agencies to accomplish the broad mission, rather than simply managing the more narrow activities within their agency’s walls’. [45]  It will improve the way policy is developed and informed, and provide more joined-up approaches to complex issues like intergenerational poverty and homelessness.   These changes will also have implications for administrative law. Departmental and process boundaries, funding, and accountability are often stipulated in legislation, including the naming of departmental Secretaries of State in Acts of Parliament. Redesigning policymaking and public administration around outcomes will require changes to existing processes, oversight, and accountability. Funding models will need major reform so that resources flow more effectively to where they have maximum beneficial impact instead of perpetuating silo organisational structures and processes.   Making it happen   To reset digital government onto a better track will require political vision and affirmative action on multiple fronts, including: Leadership   Technology’s strategic role in helping renew democracy and our public institutions needs to be understood at the most senior political and official levels. Governments will need to break the habit of handing digital political portfolios to junior, transitory politicians who lack the insight or experience to exploit technology as a tool of strategic improvement. If governments are serious about modernising the public sector, they need a Cabinet-level politician with the authority to deliver improvements across government’s policy and structural silos.   The political challenge of harnessing technology to reinvigorate democratic values and institutions is significant. David Freud, a former Minister for Welfare Reform, accurately pinpointed why digital programmes frequently fail: ‘We’ve been looking at this as a technology issue. It is much more than that, [it’s] a major cultural change in the relationship between the state and the people it needs to support’. [46]   Capabilities   To improve their capabilities, governments need to ditch the tactical, low-level ‘digital training’ of the past [47]  and move to education programmes [48] built around improved citizen engagement and the transformation of policymaking and policy outcomes, including the organisational structures, administrative processes, funding, and technology needed for their delivery. Similarly, technology leaders should have access to education programmes that develop their understanding of democratic principles, policymaking, and legislative processes to inform and guide their work.   Governments need to adopt more systems thinking to better understand how different policies, organisations, and processes interact with and influence each other. [49] For transformation to succeed, politicians and senior officials will need to work in more collaborative, participative, and outcome-based ways. This has major implications for Ministers and Secretaries of State: their portfolios will increasingly focus on cross-cutting issues rather than current departmental structures and need to be supported by updated processes for citizen engagement, policymaking, legislation, resourcing, and funding.   Open government   Governments need to open up their policy and administrative silos—and their associated systems, data, and processes—to liberate citizens from the experiences that William Beveridge, pioneer of the UK’s welfare state, criticised as long ago as 1941. He found that seven different government departments were involved in providing cash benefits. [50]  This was not only inefficient and costly but also created a dehumanising, demeaning, and fragmented experience for benefit claimants.   Similar citizen experiences still abound today. Duplicated functions and processes operate in hundreds of places, both within and between departments and across local, regional, and national administration. They frustrate public sector employees too, who find themselves caught in a web of contradictory policies, funding, processes, systems, and structures. An open government mandate will provide opportunities for modernisation and innovation inside and outside of the public sector.   However, an open government initiative that delivers solely at a technical level will not in itself encourage citizen participation and improve transparency and trust:   Technology does not drive anything. It creates new possibilities for collecting and analyzing data, mashing ideas and reaching people, but people still need to be moved to engage and find practical pathways to act. [51]   Governments should encourage a nationwide open architecture to support and inform systems thinking, and to provide opportunities for improved collaboration, evidence, and research into social and economic issues and better policymaking. This open architecture will let civil society and others add significant value, helping get important things done by letting people take the initiative, with government responding ‘in the here and now’. [52] Identity   For many of our interactions with government, proof of who we are is irrelevant, such as when we access online welfare or tax guidance. Other interactions, however, require a high level of assurance that we are who we claim to be and that the information we provide is accurate. High levels of assurance are needed not just for citizens and businesses, but public sector employees too.   Instead of emulating the state-dominant identity systems of authoritarian regimes, our governments need to create democratic exemplars that are citizen centred, private, and secure. The Estonian government, for example, lets citizens see when public officials have accessed their personal information, helping provide transparency and build trust. [53]   Good identity design protects and enhances democratic rights. It preserves citizens’ anonymity and pseudonymity, and lets them prove something about themselves, such as being ‘Over 18’ or their right to work, without disclosing unnecessary information or facilitating state monitoring and surveillance. David Birch, a digital finance and identity expert, points out that ‘we need a digital identity infrastructure that supports our transition to a new economy, not one that stutters along digitising the relics of the post-industrial revolution’. [54]   To protect and enshrine democratic principles, identity needs to be developed around the citizen and not the state. Government initiatives must adhere to high standards of privacy and security, tapping into initiatives such as the Decentralised Identity Foundation (DIF) [55]  and Solid, [56] together with ICAO digital travel credentials [57]  and ISO mobile driving licences. [58]   Personal data   Personal data safeguarded in departmental silos is often blamed for preventing governments from taking a holistic view of citizens and their circumstances to design and deliver integrated policies and processes that better meet their needs: ‘Currently, the information that government holds is scattered across disparate systems and saved in a variety of formats, making it difficult for policy makers to find what they need when they need it’. [59]   From a citizen’s perspective, we want more effective policies and better outcomes, but we don’t want officials and governments accessing and misusing our personal data. We need to improve public administration through smarter information management without invading citizens’ right to a private life or risking an increase in fraud. But transitioning public administration from a departmental responsibility to a government-wide one risks creating insecure and invasive approaches to our personal data, and the creeping extension of the state into citizens’ private lives.   In 2013, the UK Government’s Technology code of practice  stated that ‘Users should have access to, and control over, their own personal data’. [60]  Although the policy commitment has yet to be delivered, the principle remains sound. And effective regulation and technical and legal enforcement must accompany these rights. Just as Open Banking lets consumers manage their financial information across multiple organisations today, [61]  tomorrow citizens should be able to manage their information and experiences across public, private, and voluntary sectors, creating ‘new forms of citizen and state co-operation and dialogue for the 21st century’. [62]   Reduce and remove transactional interactions   Governments should question why so many paper-era interactions are still needed in the digital age. What prevents public administration operating without online forms? How can technology deliver better outcomes by working across silo organisational structures, processes, and data? And how can governments design better and less dehumanising and fragmented experiences for citizens?   As governments make better use of data and involve citizens and businesses directly in its curation and maintenance, they will be able to reduce or even remove many of their existing transactional interactions, and become more efficient and effective in the process.   Algorithmic injustice and the rule of law   Governments need to prevent the misuse of technology products and services across both private and public sectors. They also need to guard against replacing the prevailing New Public Management transactional ‘user/service’ mindset with the equally problematic pathologies of New Public Analytics (NPA), with their data-driven, automated injustice:   For those in positions of vulnerability who lack the skills, competences and ready internet access, and whose encounters with the state are now mediated primarily via digital systems rather than frontline human officers, their experience of the state has become increasingly and shamefully Kafkaesque, dehumanising and unjust. However, the capacity of these systems to function automatically and at scale enables the collective violation of the rights of affected individuals, including the presumption of innocence, producing serious injustice at scale […] there is an urgent and serious need for lawyers and legal scholars to work with policymakers and technical experts in order to ensure that systematic, practical and effective constitutional safeguards are in place . [63]   Digital government initiatives need immutable constitutional safeguards, public oversight, and design principles founded on the rule of law, human rights, privacy, and security—to defend and protect democratic values and ensure positive social and human outcomes. Although some promising work has taken place with algorithmic transparency in government, [64]  mandatory transparency is required of all algorithms with social and economic impacts, including those hyped as ‘artificial intelligence’. Routine algorithmic audits and impact assessments during the design, development, and deployment of new systems will help check for bias and regulatory compliance. [65]   Conclusion   The ambitious ideals of digital government will not be delivered until politicians and political parties weave the democratising potential of technology into the fabric of their thinking, their public consultations, their manifesto promises, and their policies, using it as an immutable force for good. As the US initiative to advance technology for democracy observes:   The first wave of the digital revolution promised that new technologies would support democracy and human rights. The second saw an authoritarian counterrevolution. Now, the United States and other democracies are working together to ensure that the third wave of the digital revolution leads to a technological ecosystem characterised  by resilience, integrity, openness, trust and security, and that reinforces democratic principles and human rights. [66]     Our governments need a radical rethink and reset of their digital initiatives if this third wave of digital revolution is to succeed. They need to commit to the open, participative, collaborative, and cross-cutting uses of technology to deliver fundamental and much-needed improvements to democracy and the relationship between citizens and the state.   The upsides of doing so are clear: technology can protect and improve democratic processes and institutions; make policymaking and public administration more accessible, more collaborative, more transparent, more accountable, and more effective; and deliver better, more just, and more enduring social and economic outcomes.   After three decades of unfulfilled promises, digital government stands at the crossroads: for the health of democracy and our democratic future, it’s clear which road it needs to take. Jerry Fishenden   Dr Jerry Fishenden FIET FRSA is a technologist, writer, and composer, with a career that spans both public and private sectors. Former roles include National Technology Officer at Microsoft UK; Senior Executive, Business Systems at the City of London’s financial regulator; Network Planning Officer of the House of Commons; and IT Director in the NHS. Jerry was the Specialist Adviser to two House of Commons Committee inquiries into digital government, and advises governments, businesses, and other organisations on the effective design and implementation of technology. His latest book, Fracture: The collision between technology and democracy—and how we fix it (2023), explores technological opportunities and challenges for the future of democracy and our democratic institutions. [1]  House of Commons Committee of Public Accounts, ‘Challenges in implementing digital change’ ( House of Commons, 10 December 2021) < https://committees.parliament.uk/publications/8146/documents/83439/default/ > accessed 1 July 2023. [2]  Jerry Fishenden, ‘Remembering government direct - the first interactive green paper’ ( New Technology Observations from the UK , 20 March 2019) < https://ntouk.wordpress.com/2019/03/20/remembering-government-direct-the-first-interactive-green-paper/ > accessed 1 July 2023. [3]  ‘The Government IT Strategy: Annex E’ ( Central IT Unit, Cabinet Office, June 1996) < https://ntouk.files.wordpress.com/2020/06/uk-government-it-strategy-1996-from-the-ntouk-digital-archives.pdf > a ccessed  1 June 2023. [4]  ‘Electronic Government’ ( Parliamentary Office of Science and Technology , February 1998). < https://www.parliament.uk/globalassets/documents/post/pn110.pdf > a ccessed 1 June 2023. [5]  ‘In the service of democracy. A consultation paper on a policy for electronic democracy’ ( HM Government / UK Online , 15 July 2002)  < https://ntouk.files.wordpress.com/2020/07/e-democracy.pdf >   a ccessed 1 June 2023. [6]  Creative Research, ‘e-Democracy. 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[11]  Heather Brooke, ‘States haven’t stopped spying on their citizens, post-Snowden-they’ve just got sneakier’ (London, 6 June 2023)   < https://www.theguardian.com/commentisfree/2023/jun/06/edward-snowden-state-surveillance-uk-online-safety-bill > a ccessed 1 August 2023. [12]  Ross Anderson and Sam Gilbert, ‘The Online Safety Bill. Policy Brief’ ( University of Cambridge and Bennett Institute for Public Policy , October 2022)  < https://www.bennettinstitute.cam.ac.uk/wp-content/uploads/2022/09/Policy-Brief-Online-Safety-Bill.pdf > a ccessed 1 May 2023. [13]  Ed Pilkington, ‘Digital dystopia: how algorithms punish the poor’ The Guardian (London, 14 October 2019)  < https://www.theguardian.com/technology/2019/oct/14/automating-poverty-algorithms-punish-poor > a ccessed 1 June 2023. [14]  ‘India’s high-tech governance risks leaving behind its poorest citizens’ The Economist (London, 16 October 2021)  < https://www.economist.com/asia/2021/10/16/indias-high-tech-governance-risks-leaving-behind-its-poorest-citizens > a ccessed 1 August 2023. [15]  Jean M Twenge, ‘Increases in Depression, Self‐Harm, and Suicide Among U.S. Adolescents After 2012 and Links to Technology Use: Possible Mechanisms’ 2020 2(1) Psychiatric Research & Clinical Practice 19-25. [16]  Thomas Carothers, ‘Why Technology Hasn’t Delivered More Democracy’ ( Carnegie Endowment for International Peace , 3 June 2015)  < https://carnegieendowment.org/2015/06/03/why-technology-hasn-t-delivered-more-democracy-pub-60305 > a ccessed 1 January 2023. [17]  Yasmeen Serhan, ‘Half of the World’s Democracies Are in Retreat. Here’s What to Expect in 2023’ Time (New York, 21 December 2022) < https://time.com/6242188/global-democracy-report-2022/ > a ccessed 1 March 2023. [18]  ‘China’s digital dictatorship’ The Economist (London, 17 December 2016) < https://www.economist.com/leaders/2016/12/17/chinas-digital-dictatorship > accessed 1 April 2023. [19]  ‘Iran’s cyberwar goes global’ The Economist (London, 14 September 2022) < https://www.economist.com/middle-east-and-africa/2022/09/14/irans-cyberwar-goes-global > accessed 1 June 2023. [20]  ‘North Korea’s hackers are after intel, not just crypto’ The Economist (London, 7 July 2023) < https://www.economist.com/graphic-detail/2023/07/07/north-koreas-hackers-are-after-intel-not-just-crypto > accessed 1 August 2023. [21]  ‘ Russia is trying to build its own great firewall ’ The Economist (London, 19 February 2022) < https://www.economist.com/business/russia-is-trying-to-build-its-own-great-firewall/21807706 > a ccessed 1 June 2023. 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[40]  ‘Democracy Index 2022’ ( Economist Intelligence Unit )   < https://www.eiu.com/n/campaigns/democracy-index-2022/ > a ccessed  1  June 2023. [41]  In 1968, Melvin E Conway created an adage now popularly known as Conway’s law, namely that ‘ Any organization that designs a system (defined broadly) will produce a design whose structure is a copy of the organization’s communication structure ’ . [42]  Melvin E Conway, ‘How do committees invent?’ ( Datamation magazine , April 1968)   < http://www.melconway.com/Home/Committees_Paper.html >   ac cessed  1  July 2023. [43]  Walter W Powell, ‘Neither Market Nor Hierarchy: Network Forms of Organisation’ (1990) 12(1) Research in Organisational Behaviour 295-336. [44]  ‘Wiring it up. Whitehall’s management of cross-cutting policies and services’ ( Cabinet Office , January 2000)  < https://ntouk.files.wordpress.com/2015/06/wiring-it-up-2000.pdf > a ccessed  1  May 2023. [45]  Donald F Kettl, The Next Government of the United States: Why Our Institutions Fail Us and How To Fix Them  (Norton  2009). [46]  David Freud,   Clashing Agendas: Inside the Welfare Trap (Macmillan 2 021 ). [47]  ‘GDS Academy’ (GDS Academy, November 2021)  < https://web.archive.org/web/20181130230208/https:/gdsacademy.campaign.gov.uk/ > a ccessed  1  August 2023. [48]  ‘Written evidence submitted by Dr Jerry Fishenden, Professor Mark Thompson, and Assistant Professor Will Venters’ ( House of Commons Public Accounts Committee , 6 December 2023)  < https://committees.parliament.uk/writtenevidence/39203/pdf/ > a ccessed  1 October 2023. [49]  ‘Systems thinking: An Introductory Toolkit for Civil Servants’ ( Government Office for Science , 2022)  < https://assets.publishing.service.gov.uk/media/6290d241d3bf7f036cb7a09f/GO-Science_Systems_Thinking_Toolkit_2022_v1.0.pdf > ac cessed  1  March 2023. [50]  Jose Harris,   William Beveridge: A Biograph y (Macmillan 1997) 365-412. [51]  Rakesh Rajani, ‘Why Technology Hasn’t Delivered More Democracy’ ( Carnegie Endowment for International Peace , June 2015)   < https://carnegieendowment.org/2015/06/03/why-technology-hasn-t-delivered-more-democracy-pub-60305 > a ccessed  1  January 2023. [52]  Audrey Tang, ‘Inside Taiwan’s new digital democracy’ The Economist (London, 12 March 2019) < https://www.economist.com/open-future/2019/03/12/inside-taiwans-new-digital-democracy > a ccessed  1  April 2023. [53]  Jaan Priisalu and Rain Ottis, ‘Personal control of privacy and data: Estonian experience’ (2017) 8(1)   Data Protection Journal 441-451. [54]  David Birch, ‘Doing Something About Digital Identity’ ( Substack , 25 August 2021)  < https://dgwbirch.substack.com/p/doing-something-about-digital-identity > a ccessed  1  February 2023. [55]  ‘Decentralised Identity Foundation’ ( Minutes of the Decentralised Identity Foundation , June 2023)  < https://identity.foundation/ > a ccessed  1  October 2023. [56]  ‘Solid: Your data, your choice’ ( New Think Tank , February 2023) < https://solidproject.org/ > a ccessed  1  October 2023. [57]  ‘Digital Travel Credentials’ (ICAO, March 2023)  < https://www.icao.int/Security/FAL/TRIP/PublishingImages/Pages/Publications/Guiding%20core%20principles%20for%20the%20development%20of%20a%20Digital%20Travel%20Credential%20%20%28DTC%29.PDF > a ccessed  1  May 2023. [58]  ‘ISO/IEC 18013-5:2021. Personal identification—ISO-compliant driving licence—Part 5: Mobile driving licence (mDL) application’ (ISO/IEC, March 2023)  < https://www.iso.org/standard/69084.html > a ccessed  1  May 2023. [59]  Lewis Lloyd, ‘Policy making in a digital world. How data and new technologies can help government make better policy’  ( Institute for Government , 2020) < https://www.instituteforgovernment.org.uk/sites/default/files/publications/policy-making-digital-world.pdf > a ccessed  1  October 2023. [60]  ‘Technology code of practice’ ( Cabinet Office , 2013)  < https://ntouk.files.wordpress.com/2020/06/technology-code-of-practice-e28094-government-service-design-manual-2013.pdf > a ccessed  1  February 2023. [61]  ‘What is Open Banking?’ ( Open Banking Ltd. , June 2023) < https://www.openbanking.org.uk/what-is-open-banking > a ccessed  1  June 2023. [62]  Tang (n 52).   [63]  Karen Yeung, ‘The New Public Analytics as an Emerging Paradigm in Public Sector Administration’ (2002) 27(2) Tilburg Law Review. [64]  ‘Algorithmic Transparency Recording Standard Hub’ ( Central Digital and Data Office , 5 January 2023)  < https://www.gov.uk/government/collections/algorithmic-transparency-recording-standard-hub > a ccessed  1  October 2023. [65]  ‘Examining the Black Box: Tools for assessing algorithmic systems’ ( Ada Lovelace Institute , 29 April 2020)  < https://www.adalovelaceinstitute.org/wp-content/uploads/2020/04/Ada-Lovelace-Institute-DataKind-UK-Examining-the-Black-Box-Report-2020.pdf > a ccessed  1  April 2023. [66]  (n 22).

This time, it feels like it is finally happening—until Abu Salah comes home with the dreaded news: ‘Wait another two days until the strong winds die down ’. Roliana cannot understand. ‘Daddy, why don’t we just take the airplane?’ she asks. [1]     I. Introduction   Seeking safety and entry into the territory of a state to initiate an asylum procedure, is often a life-risking and traumatising endeavour. Yet, thus far, the state parties to the 1951 Convention Relating to the Status of Refugees (1951 Geneva Convention) including all member states of the European Union (EU) refuse to offer accessible safe passage.[2] The lack of sufficient humanitarian visas exacerbates the situation and forces refugees on perilous journeys across deserts, the sea, and violent borders.[3] Five-year old Roliana and her family fled from Aleppo, in 2012.[4] Part of the city was captured by rebels; regime forces subsequently dropped barrel bombs on densely populated urban areas.[5] Due to the escalating conflict, the family moved up north, towards Afrin, but the war caused water and electricity shortages, dysfunctional schools, and a lack of work.[6] The family decided to cross into Turkey, and eventually to Greece.   This is not a single story, the Syrian conflict has displaced over 12 million.[7] While the forced movement of refugees is one aspect of war and conflict, no conflict is waged without grave breaches of the laws of war, without violence against civilians. The barrel bomb attack on Aleppo by the Syrian regime as well as the indiscriminate shelling by Opposition groups as a response most likely constitute war crimes.[8] Those fleeing conflict zones and wars such as in Syria, like the family of Roliana, but also in Afghanistan, Eritrea, Ukraine, or Sudan, have often experienced these unimaginable crimes. They may have been victims and/or witnesses of war crimes, crimes against humanity or even genocide.   However, instead of issuing visas and thereby opening a safe route by air, the EU imposes sanctions on carriers such as airlines which forces people on dangerous journeys.[9] At Europe’s land borders, the search for a safe haven is answered with entry prevention measures and violence, a systematic practice depriving refugees of their right to seek asylum and freedom from harm that may itself amount to crimes against humanity.[10] Having fled the crimes in their home countries, asylum-seekers are likely to become victims of international crimes in transit again.   Disconnected Realities And yet, even upon arrival in states that provide access to regular asylum procedures, this essential part of a refugee’s experience—the manifest violations of human rights relevant under international criminal law (ICL) before and during the flight—remains outside the scope of the asylum process. The asylum procedure only aims to determine if the applicants meet the legal criteria according to the 1951 Geneva Convention. If so, beneficiaries of international protection are granted a respective residence permit as well as the 1951 Convention travel document .[11] The individual interest of many refugees to seek truth and justice for the harm suffered remains unaddressed in the asylum context.[12] It is only recognised in international treaties dealing with severe harm[13] and under the rules of international criminal law, above all, the Rome Statute of the International Criminal Court (ICC).[14]

‘Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph’. Haile Selassie, United Nations General Assembly, 4 October 1963.[1] Introduction The continuing suffering of the Sudanese people illustrates the futility of international policy-making in the absence of the political will necessary to enforce treaties. As worthy as conventions on human rights and genocide prevention are, without a robust enforcement architecture, the world’s dictators and war lords will continue to persecute and eliminate minority groups with impunity. In Sudan, the blame does not rest on the international community or the legacy of colonialism alone. Faced with human rights abuses, the African Union prioritises state sovereignty and leaders’ immunity from prosecution, and the Islamic world shows little concern for the systematic elimination of Muslims in Darfur. In addition, Khartoum skilfully manipulates American security concerns post-9/11, rendering humanitarian initiatives toothless. This article will draw on personal experience: interviewing survivors in Darfur in 2004, and founding Waging Peace, a charity supporting thousands of Sudanese refugees in the UK. Fig 1. The drawing shows Aishbarra village in Darfur, which was attacked by Janjaweed militia. Houses are set on fire by one of the attackers using a match. Villagers are shot and one person is shown with his left leg severed from the knee down. The villagers that were attacked are coloured in black pencil, while the attackers have lighter (orange) skin – showing the ethnic nature of the attacks (i.e. Arabs attacking ‘black Africans’ – in this case those from the Massaleit tribe). On the bottom right of the drawing are two young men, attached by the neck, led away by a Janjaweed fighter. These young men/boys could be taken into slavery, or may become child soldiers. The Islamist mission On 30 June 1989, the National Islamic Front (NIF) led by Field Marshall Omar Bashir overthrew the democratically elected government of Ja’afar Nimeiri, establishing the world’s second Islamist republic (after Iran). At the previous year’s election, the NIF polled less than 10%. Yet, Sudan specialist Gill Lusk says, the NIF secured power because its members had spent years rising through the ranks of Khartoum’s institutions, guided by their ideological leader, Hasan Turabi. ‘El Turabi and his colleagues had read their Lenin’, says Lusk. ‘The infiltration was patient and systematic and it included uncountable sleepers who revealed their beliefs after the 1989 coup’.[2]

The 2011 Western and Arab intervention in Libya was born of the lessons learned (or, as the case may be, not learned) from the international community’s previous two decades of responding to the outbreak of conflict and commission of gross violations of human rights in various contexts. More precisely, the Libyan case was informed by the international community’s previous failure to stop the horrific genocide in Rwanda and to halt what had been up to that point the largest mass killing on European soil, in Srebrenica, since the Second World War.   During those anxious months in the late winter and early spring of 2011 as observers watched events unfolding in Libya, these lessons ‘weighed heavily on the decision-makers in Washington, London, Paris and beyond’.[1] The world was monitoring a domestic Libyan uprising which was being met, particularly in the city of Benghazi, by the excessive use of force by units under the command of Muammar Qaddafi. The ‘Responsibility to Protect’ (R2P) doctrine was invoked by some international figures to push for the ultimate passage of UNSCR 1973 on the premise of preventing potential crimes against humanity and indeed the resolution contains language pertaining to R2P.[2] This UN resolution paved the way for the NATO and Arab intervention in Libya, which morphed from a protection mission to one of regime change, leading to Qaddafi’s downfall.   Ian Martin, the first UN Special Representative in Libya, in his meticulously documented book All Necessary Measures?  has detailed the initial international decisions taken on Libya in 2011-12. While questioning whether R2P indeed played a seminal role in international decision-making, Martin notes: ‘the Libya experience has done such damage to the limited international consensus there was around the R2P doctrine’.[3]   Whether or not R2P was central to the passage of UNSCR 1973, the lack of serious international investment in the Libya that emerged after Qaddafi regime’s demise was a singular failure on the part of the world’s leading powers especially given the legacy of Qaddafi’s four-decade plus quixotic, chaotic, and terrorizing reign. The international clarity and vision that were applied before the passage of UNSCR 1973 have seldom been in evidence since Qaddafi’s downfall.   As the world has turned its gaze away from Libya, Qaddafi’s successors have spent the past decade quarrelling—often violently—over the shallow legitimacy of the country’s institutions instead of working together to build a functioning state. As a consequence, the ordinary Libyan citizen has been left materially less secure and too often prey to abuse at the hands of the thugs (both home-grown and imported), while some of the victims of Qaddafi’s abuses themselves became victimizers.

Gaza: Can Anyone Hear Us?[1]   In a Washington Post  article published on 16 December 2023, the reporter David Ignatius wrote:   For three days this past week, I traveled the West Bank, from the arid hills below Hebron in the south to the chalky heights of Nablus in the north. What I saw was a pattern of Israeli domination and occasional abuse that makes daily life a humiliation for many Palestinians—and could obstruct the peaceful future that Israelis and Palestinians both say they want.  Driving the roads of the West Bank is—forgive the term—a ‘two-plate’ solution. Israeli settlers with yellow license plates zoom along on a well-guarded superhighway called Route 60. Palestinians with white plates navigate small, bumpy roads. Since Oct. 7, many of the entrances to their villages have often been closed. Traveling in an Israeli taxi with a Palestinian driver, I saw some of both worlds.  I watched backups at Israeli checkpoints near Bethlehem and Nablus that were over a half-mile long and could require waits of more than two hours. The delays, indignities and outright assaults on Palestinians have become a grim routine. ‘If I’m in a yellow-plate car, does that change my blood?’ asked Samer Shalabi, the Palestinian who was my guide in the Nablus area.  My tour of the West Bank was a reality check about what’s possible ‘the day after’ the Gaza war ends. President Biden and other world leaders speak hopefully about creating a Palestinian state once Hamas is defeated. I’d love to see that happen, too. But people need to get real about the obstacles that are in front of our eyes.[2]    I was struck by this piece of reporting—well-intentioned though it was—for the absence of context and history that it reveals. Is Mr. Ignatius only now discovering the occupation and its pernicious impact on Palestinian life, the relentless oppression waged against Palestinians over nearly six decades? Can he now, finally, begin to see the context that led to the current horrific loss of Palestinian and Israeli lives?   In the more than four months since the 7 October conflict erupted, Israel has dropped over 45,000 bombs on Gaza weighing more than 65,000 tons, which is equivalent to three atomic bombs like those dropped on Hiroshima. This has resulted in a level of destruction that is ‘comparable in scale to the most devastating urban warfare in the modern period’, comparable to the bombing of Dresden during the second world war. According to Robert Pape, a University of Chicago political scientist, ‘the word “Gaza” is going to go down in history along with Dresden and other famous cities that have been bombed. What you’re seeing in Gaza is in the top 25% of the most intense punishment campaigns in history’.[3]   Between 7 October 2023 and 19 February 2024, over 29,092 Palestinians have been killed (approximately 70 percent are women and children), 69,028 injured (or 3.0 percent of Gaza’s population) and 1.7 million (out of 2.3 million or 74 percent) have been internally displaced. During the same period, there have been over 1200 Israelis killed (including foreign nationals), approximately 5,400 injured and 134 remain hostage in Gaza.[4] Conservatively, between 29-37 percent of all buildings have been damaged or destroyed[5] including over 60 percent of Gaza’s homes (over 70,000 destroyed or made uninhabitable and over 290,000 damaged) in addition to apartment buildings, water and sanitation infrastructure, factories, businesses hotels, shopping malls, theaters, mosques, and churches. Approximately 92 percent of all school buildings have been damaged (in addition to 392 educational facilities) or are used as shelters. All of Gaza’s universities have been damaged or destroyed and are no longer operational. Similarly, the number of functioning hospitals has dropped from 36 to 14 (11 are partially functional and three are running at minimal capacity).[6] By the second half of November, the World Bank estimated that ‘60 percent of Gaza’s ICT, health and education infrastructure had been destroyed [and] 70 percent of its commerce-related infrastructure’, resulting in an unemployment rate of 85 percent (given the closure of 56,000 businesses and a loss of 147,000 formal sector jobs).[7]   The northern Gaza Strip has no access to clean water and the south receives a meager water supply from one pipeline coming from Israel. By 2 January, there was a full electricity blackout throughout the Gaza Strip, which has continued.[8] The systematic destruction of Gaza’s infrastructure has led to the ‘rapid spread of infectious disease’.[9] Consequently, the World Health Organization warns that the outbreak of disease could ultimately kill more Palestinians than Israeli bombs.[10] According to Professor Devi Sridhar, the chair of global public health at the University of Edinburgh, ‘A quarter of [Gaza’s] population could die within a year due to outbreaks of disease caused by this unprecedented conflict’[11] where ‘indirect health related deaths…can outnumber direct deaths by more than 15 to 1’.[12]

Introduction   The epitome of the 21st century’s Russian war against Ukraine manifested itself in Vladimir Putin’s speech on the morning of 24 February 2022.[1] In his address, the Russian President announced a series of wars against the collective West and the sovereign state of Ukraine. The massive Russian military attack on Ukrainian land, air, and sea was presented to the Russian public as ‘a special military operation’. According to President Putin, ‘The purpose of this operation was to protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the Kiev regime. To this end, we will seek to demilitarize and denazify Ukraine, as well as bring to trial those who perpetrated numerous bloody crimes against civilians, including against citizens of the Russian Federation’. Putin’s bold statement was uttered notwithstanding the facts that, during those eight years, Russia had annexed Crimea and effectively occupied Donbass, two Eastern regions of Ukraine.[2] The Russian government machine failed, however, to gain control over the Ukrainian government and the Ukrainian people beyond the occupation borders.[3]   Arguably, the full-scale Russian invasion, accompanied by an overwhelming scale of atrocious crimes against the Ukrainian nation, creates a ‘context of a manifest pattern of similar conduct directed against’ the Ukrainian nation to destroy it as such, in whole or in part, within the meaning of the crime of genocide.[4] The thesis of this essay is that such a manifest pattern includes a crime that could itself affect such destruction ie the forcible transfer of children of the group to another group (from Ukraine to Russia or Russian-controlled territory).   It is uncontested that since 2014, and later, after February 2023 on a larger scale, a substantial number of Ukrainian children have been transferred, under the control of the Russian authorities, from their homes or places of residence to the territory of the Russian Federation or to the Ukrainian regions under Russian occupation.[5] Based on an analysis of Russian law and the reports of public officials in the field of education and children’s rights, the necessary conclusion is that all such acts were carried out by the state’s centralized system of governance under the control and leadership of President Putin. It is posited that such actions reflect the intent to destroy the nation of Ukraine and eliminate its identity as a separate entity from Russia.   On 17 March 2023, the Pre-Trial Chamber of the International Criminal Court issued arrest warrants for Mr Vladimir Putin and Ms Maria Lvova-Belova, Commissioner for Children’s Rights in the Office of the President of the Russian Federation. They both are allegedly responsible for ‘the war crime of unlawful deportation of the population (children) and that of unlawful transfer of the population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute)’.[6]

Bo Kyi is a Burmese human rights activist and founder of the Assistance Association for Political Prisoners (AAPP), a human rights organization that advocates for the release of political prisoners in Burma and works to document prison conditions, unlawful arrests, and detention-related abuses carried out by the Burmese government. The AAPP also provides humanitarian assistance and other support to current and former political prisoners and their families. Bo Kyi is a former political prisoner due to to his participation in pro-democracy protests during the 1988 uprising. Assistance Association for Political Prisoners Assistance Association for Political Prisoners.   CJLPA : Can you tell us about your first interactions with politics during the 1988 student movement and what made you want to get involved with anti-government protests?   Bo Kyi : I was born in a country where fear was pervasive. We feared imprisonment, there was a fear of being tortured, losing a loved one or home, a fear of losing your dignity, a fear of poverty and forced labor. The military dictatorship began in 1962, three years before I was born. But by the time I was a teenager I already understood that our university students had long been at the heart of political movements in Burma, since before colonial independence.   In 1988, I was a final year student at Rangoon Arts and Sciences University, majoring in Burmese literature. In that time, there was not a multi-political party system, only one military-aligned party called the Burma Socialist Programme Party (BSPP). We were taught political science in university, but it was the ‘Burmese Way to Socialism’ with no space for criticism. We were told to just listen and memorize what was taught. Students had not been allowed to establish student unions since 7 July 1962, when military soldiers infamously blew up a Rangoon student union with dynamite. Thereafter, all students’ unions were declared illegal, students were forced to join the BSPP for a chance to gain further study, everything was controlled by the Party. I had never heard of democracy or human rights. In university, we had to learn what happened in the past by listening to our elders in secret. Professors and tutors taught us the history of the student movement in Burma, and the role that it played before, in colonial times.   My father was a soldier in the Air Force, and he raised me as if I was a soldier, not allowing any question back. If I asked questions, he beat me. When I was young, I had a great fear of my father. But as I got older and older, I tried to look for ways to free myself from my father. This is why I worked hard to get good grades at high school and go to university. Such kinds of emotions would lead me to join the struggle.   On 22 September 1987, the military government led by General Ne Win announced demonetization of the national currency, the Kyat. The decision rendered the existing banknotes of 1, 5, 10, and 20 kyats invalid. The purported aim of the demonetization was to curb black market activities and reduce corruption, but everyone knew it was led by the senior generals’ superstition. Most of the population faced challenges in exchanging their old currency for the new notes, so many people simply lost their entire savings and what little wealth they had.   As students, we financially relied on our parents as they supported us through our studies. When they suffered, we also suffered. This dissatisfaction with the economic situation soon boiled over into rage at the injustice of dictatorial military rule.