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‘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. Report of Research Findings’ ( Communications on behalf of the Office of the e-Envoy , 23 December 2002) < https://ntouk.files.wordpress.com/2020/07/full_report.pdf > a ccessed 1 June 2023. [7]   Alvin Toffler , Future Shock (Random House 1970) . [8]  Virginia Eubanks,   Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poo r (Macmillan 2018). [9]  ‘You Reap What You Code’ ( Child Poverty Action Group, June 2023) < https://cpag.org.uk/policy-and-campaigns/report/you-reap-what-you-code > a ccessed 1 July 2023. [10]  Janna Anderson and Lee Rainie, ‘Many Tech Experts Say Digital Disruption Will Hurt Democracy’ ( Pew Research Centre , 21 February 2020)  < https://www.pewresearch.org/internet/2020/02/21/many-tech-experts-say-digital-disruption-will-hurt-democracy/ > a ccessed 1 June 2023. [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. [22]  ‘FACT SHEET: Advancing Technology for Democracy’ ( The White House Briefing Room, 29 March 2023)  < https://www.whitehouse.gov/briefing-room/statements-releases/2023/03/29/fact-sheet-advancing-technology-for-democracy-at-home-and-abroad/#:~:text=From%20AI%2Dpowered%20mass%20surveillance,critics%20at%20home%20and%20abroad . > a ccessed 1 October 2023. [23]  ibid. [24]  Linda Geddes, ‘Child deaths are linked to social deprivation in England—NHS report’ The Guardian (London, 13 May 2021)  < https://www.theguardian.com/inequality/2021/may/13/child-deaths-are-linked-to-social-deprivation-in-england-nhs-report > a ccessed 1 February 2023. [25]  Nicola Hughes, ‘Ed Vaizey reflects on his time in government for the Institute for Government’s Ministers Reflect project’ ( Institute for Government , 8 December 2016)  < https://www.instituteforgovernment.org.uk/ministers-reflect/ed-vaizey > a ccessed 1 May 2023. [26]  ‘Government Direct. A Prospectus for the Electronic Delivery of Government Services’ ( Cabinet Office , 1996)  < https://ntouk.files.wordpress.com/2015/06/government-direct.pdf > a ccessed 1 May 2023. [27]  ‘Modernising Government’ ( Cabinet Office , March 1999) < https://ntouk.files.wordpress.com/2015/06/modgov.pdf > a ccessed  1  May 2023. [28]  Brian Walden, ‘The white heat of Wilson’ ( BBC News , 31 March 2006)  < http://news.bbc.co.uk/1/hi/magazine/4865498.stm > a ccessed 1 May 2023. [29]  Jerry Fishenden, Mark Thompson, and Will Venters, ‘Better Public Services. The Green Paper accompanying Better Public Services, A Manifesto’ ( Digitising Government , March 2018) < https://digitizinggovernment.weebly.com/uploads/1/3/0/7/13071055/green_paper_interactive_pdf_compressed.pdf > a ccessed  1  June 2023. [30]  Jerry Fishenden, Mark Thompson, and Will Venters, ‘Appraising the impact and role of platform models and Government as a Platform (GaaP) in UK Government public service reform: towards a Platform Assessment Framework (PAF)’ 2017 34(2) Information Quarterly 167-182. [31]  ‘Design your service using GOV.UK styles components and pattern’ ( GOV.UK Design System , March 2023)  < https://design-system.service.gov.uk/ > a ccessed  1  July 2023. [32]  Mark Thompson, ‘UK voters are being sold a lie. There is no need to cut public services’ The Guardian (London, 12 February 2015)  < https://www.theguardian.com/public-leaders-network/2015/feb/12/uk-voters-cut-public-services-amazon-spotify-uber > a ccessed  1  August 2023. [33]  Lawrence Lessig, ‘Code is Law’ ( Harvard Magazine , 1 January 2000)  < https://www.harvardmagazine.com/2000/01/code-is-law-html > a ccessed  1  July 2023. [34]  ‘The Government IT Strategy’ (n 3).   [35]  Jonathan Slater, ‘Fixing Whitehall’s broken policy machine’ ( The Policy Institute, King’s College London , March 2022) < https://www.kcl.ac.uk/policy-institute/assets/fixing-whitehalls-broken-policy-machine.pdf > a ccessed  1  April 2023. [36]  Melvin Kranzberg, ‘ Technology and History: “Kranzberg’s Laws”’ (1986) 27 (3) Technology and Culture  544-560. [37]  Janna Anderson and Lee Raine, ‘Concerns about democracy in the digital age’ ( Pew Research Centre , 21 February 2020)  < https://www.pewresearch.org/internet/2020/02/21/concerns-about-democracy-in-the-digital-age/ > a ccessed 1 September 2023. [38]   Graeme Gill ,   Symbolism and Regime Change in Russia  (Cambridge University Press 2013 ). [39]  Kate Jones, ‘AI governance and human rights’ ( Chatham House , 10 January 2023)   < https://www.chathamhouse.org/2023/01/ai-governance-and-human-rights > a ccessed  1  May 2023. [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.

Moral considerations in confiscating Russian assets Russia’s full-scale war against Ukraine has been going on for almost two years. During this time, Russia has committed brutal crimes against Ukrainians, which were witnessed by the international community. In February 2023, the UN General Assembly demanded that Russia stop the war and immediately withdraw its army from Ukraine.[1] In March 2023, the International Criminal Court (ICC) issued an arrest warrant for Vladimir Putin, accusing him of being responsible for the illegal deportation of children from Ukraine, which constitutes a war crime.[2] While Ukraine is fighting for its freedom and awaiting fair adjudication of crimes committed during this bloody war, the material losses of the Ukrainian state are growing.   According to the World Bank, the losses caused by the aggressor amount to more than 400 billion euros on the controlled territory alone, and after the liberation of the entire territory of Ukraine from the invaders, this amount might double.[3] Ukraine’s economy currently functions at the expense of macro-financial assistance from partners, but Russia must pay for the damage it caused to peaceful Ukrainians.   Voluntary compensation by the aggressor country is unlikely. A more practical solution is to confiscate the assets of Russia as a state, as well as its citizens and companies that support the Putin regime. However, prior to the full-scale invasion, there were no universal approaches to the confiscation of assets of the aggressor state with the possible aim of transferring them to the state affected by the aggression while the war was ongoing.   Historically, compensation for war losses was conducted mostly at the expense of state funds on the basis of treaties or other international acts. In most cases, the aggressor state must agree to pay compensation under such treaties, since they are typically negotiated and require the consent of all parties involved. However, there are some scenarios in which compensation may be determined without the direct agreement of the aggressor state:   Imposed reparations: in certain situations, the victorious parties in a conflict may impose reparations on the aggressor state as part of the peace settlement, as after World War I with the Treaty of Versailles.[4] These imposed reparations are often outlined in a treaty or agreement. The aggressor state may be required to accept these terms as a condition for the cessation of hostilities and the restoration of peace.

Over his career, Kevin Macdonald has directed a plethora of documentaries and films which have garnered critical acclaim and popular success. Not one to shy away from sensitive and complex subject matter, Kevin’s work depicts unsanitised, thought-provoking stories, from a documentary on antisemitism to a film on a prisoner in Guantanamo. For the former, Kevin was awarded an Academy Award for Best Documentary feature. His latest film, The Mauritanian , explores the real story of Mohamedou Ould Slahi, a man imprisoned by the US government in Guantanamo and charged with organizing the 9/11 attacks. The film follows civil rights lawyer Nancy Hollander, marine prosecutor Steve Crouch, and the alleged terrorist Mohamedou himself. Featuring a star studded cast of Benedict Cumberbatch, Jodie Foster, and Tahar Rahim, the film intricately weaves complex themes such as the rule of law to make a compelling legal drama. CJLPA : Before we delve into the film The Mauritanian , we wanted to know what impact the film had had on Mohamedou Ould Slahi’s life and how life has been for him since the film came out.   Kevin Macdonald : I spoke to him recently. He is doing well. He still runs into difficulties with certain countries. They still won’t let him into Germany which is where he was living before he was arrested. He’s a sensitive soul and finds it really upsetting.   One of the things that’s remarkable to me is that he is not more embittered. He wants to be positive, do positive things and not regret all the time he lost. This is in the context of his mother dying whilst he was in prison [Guantanamo]. He is also incredibly forgiving. So for him to be faced with these accusations, which are almost certainly orchestrated to some degree by embarrassed individuals in the security services, is awful. I was told that this was the case by the German ambassador to Mauritania, who became a very good friend of Mohamedou’s. The German ambassador said that there were people in the BND who act hand in glove. These people don’t want to admit they were wrong [about Mohamedou]. They would rather just keep on besmirching his reputation.   CJLPA : Subsequent to the film coming out, Mohamedou has given talks at eminent institutions such as the Cambridge Union. How has he found speaking publicly on his time in Guantanamo?   KM : He is willing to talk about it but finds it really hard. There is a lot of trauma that gets brought up during the talks. After those sorts of talks, he has to recover. It takes him several days after each time to recover because he’s reliving the trauma each time. He wants to tell people but at the same time it affects him. When he came and stayed in my house, he liked spending a lot of time in his room. I don’t know much about prisoner psychology, but he likes to be in a small, controlled environment.   CJLPA : You now know him very well. How did you first come across Mohamedou’s story?   KM : I had actually read some of his book [ Guantanamo Diary ] when it came out it. I never thought of making a film about it until Benedict Cumberbatch’s production company got in touch with me and asked me whether I would be interested in being involved. I was not sure if there was anything more to say about the war on terror. The production company told me to just talk to Mohamedou. I spoke to him and it was his personality, wit, and warmth that really astonished me and I thought, I want to make a film about this character. I’m not a politician. I’m not a lawyer. I’m a filmmaker interested in stories and characters.   I just thought he was an extraordinary character who needed to be better known. I wanted to try and tell the story of Guantanamo in a way that really affects a wide audience that isn’t just preaching to the converted. The problem with a lot of human rights films and documentaries is that they are seen and admired by people who already agree with what is in them. We felt that we wanted to make a film that tried to reach both sides of the American political divide, to show that the justice that was served to Mohamedou was a travesty and that he was mistreated by the system. If you can move people to empathy, you can change their mind. You can make them understand the legal aspects of his case but in a simple but emotional way.

1. The Obligation to Undress and the Destruction of Personal Property: Related Violations   1.1. Evidence of Confiscation and Destruction of Migrants’ Personal Belongings Denounced by International Organisations, Bodies, and Non-Governmental Organisations   The requirements for migrants to undress and the destruction of their personal belongings—including documents and mobile phones—by border guards and Frontex [the European Border and Coast Guard Agency] agents, at both internal and external borders of the EU, has been a subject of reporting and condemnation by various international organisations and institutions for several years.   The Fundamental Rights Agency of the European Union (FRA), in its 2020 report on the external borders of the EU, exposed severe violations of migrants’ human rights, including the confiscation and arbitrary destruction of personal effects. The European Committee for the Prevention of Torture (CPT) has also repeatedly condemned the seizure and destruction of personal belongings of individuals forcibly returned from Greece to Turkey.[1]   The report titled ‘Beaten, Punished, and Pushed Back’ by the Protecting Rights at Borders (PRAB) network, published in January 2023, reveals that the people fleeing persecution or serious harm and in search of protection, attempting to enter the EU via the Bosnian-Croatian border over the past years, have faced denial of access to asylum procedures, arbitrary arrest or detention, physical abuse or mistreatment, and theft or destruction of property.[2] In a testimony of July 2022 provided by two individuals from Bangladesh, it was stated:   We continued walking through Croatia and at around four in the afternoon, we descended from one hill towards a water stream. That is when we heard dogs barking nearby […] and then silence […] so, we drank water and refreshed. After five minutes, we heard and noticed a drone flying above us, and then almost immediately some 20-30 police officers surrounded us. They caught all 16 of us, no one escaped, and not anyone even tried to. […] They asked if we had phones, power banks, money, or anything in our possession. We had to put everything in a bag, and another row of police searched us and took anything that they would find, even lighters or paper bags. […] We asked for water and for our phones, but they refused to give them to us.[3]   Furthermore, the report highlights that the destruction of personal belongings, particularly telephones and SIM cards, is also occurring at the Polish-Belarusian border. The refugees faced robbery by Belarusian border officials as well. These persistent abuses have been extensively documented in a policy note published in December 2021 by the PRAB network. The note asserts that the confiscation and destruction of migrants’ documents and personal property at European borders serve dual motivation (‘ensuring evidence is destroyed, and lucrative purposes’) and takes different forms. As the note states:

Eric Emeraux is the former Head of the Central Office for Combating Core International Crimes and Hate Crimes (OCLCH), France’s war crimes unit. Prior to that, Emeraux spent five years in Sarajevo as internal security attaché at the French Embassy. His book Hunting Monsters , published in 2023 in the UK, recounts the considerable work achieved with his team to track down war criminals and put an end to impunity. This written interview was conducted in December 2023.   CJLPA : During the five years you spent in Sarajevo as internal security attaché at the French Embassy, you were confronted with the horrors of genocidal wars. What were the most significant challenges you encountered in this position? What impact did this position have on the rest of your career?   Eric Emeraux : I was previously specialised in the fight against organised crime and homicide. It was mainly in this area that I worked in Bosnia-Herzegovina. Being an internal security attaché is an exciting and demanding job. You need a lot of interpersonal skills and humility to get different countries to cooperate and find innovative solutions to combat insecurity. Most of the time, cooperation is simply a matter of interpersonal relations between men and women who are willing to work together, sometimes behind the backs of their administrations. In the end, the fight against arms trafficking, human trafficking, and the fight against terrorism, particularly after 2015 and the wave of attacks that France experienced, were the greatest challenges during these five years.   But it’s also true that my assignment in this country made me aware of the impact and effects of war on people’s minds and souls. My daily life was surrounded by the horror stories that punctuated these wars. They concerned all the parties involved, dividing families, stigmatising them and leaving indelible marks, especially when justice was not served. By closely analysing certain situations, I realised how fragile human beings are because they are easily influenced, and that in the end, it’s not that complicated to turn an ordinary person into an ordinary killer.   CJLPA :   In 2017, you were appointed Head of the Central Office for Combating Core International Crimes and Hate Crimes (OCLCH). Could you briefly explain the reasons that led to the creation of this body and tell us what motivated you to work on tracking down war criminals?   EE : This office was created in 2013 as a continuation of the specialised unit of magistrates set up in 2012. As France had signed and ratified the Rome Statute, we had an obligation to try any perpetrators who may be hiding in France, in addition to the work carried out by the International Criminal Court. There are therefore two coexisting systems, one national and the other international, which implement the principles of international justice.