Lawyers in Conflict and Transition

In Lawyers in Conflict and Transition (Cambridge University Press, 2022), we explore what lawyers do in challenging contexts of conflict, authoritarianism, and transitions from violence. In particular, we were interested in going beyond the notion of lawyers as legal technicians and instead seeing them as political, social, and moral actors—“real people”—trying to practice law in pressurized environments where the chances of securing justice were often slight. We conducted over 130 interviews in six sites—Cambodia, Chile, Israel, Palestine, South Africa, and Tunisia.

The work of cause lawyers

In his seminal work on lawyers in the United States and the United Kingdom, Rick Abel famously argued that “most lawyers just want to earn a living and leave politics to others … Like Rhett Butler, most lawyers frankly do not give a damn.” As Abel himself would be the first to admit, the notion that lawyers are solely interested in self-enrichment and protecting the privileged position of the profession is an overly cynical reading. Lawyers often play an important role in the political and social life of society and in promoting the rule of law.

In our book, we zeroed in on so-called cause lawyers in the difficult circumstances of conflict, authoritarianism, and transition. Cause lawyers are lawyers who view themselves as being more than simply neutral legal technicians or “hired guns” doing their professional best to represent the interests of their clients. Rather, they see their legal practice as an expression of a broader political, legal, social, or moral cause. In the contexts where we conducted our research, where any kind of politically sensitive lawyering was all the more difficult and in some instances dangerous, understanding why lawyers would nonetheless opt to step beyond the “hired gun” framework and how that impacted their tactics, strategies, and relationships with key stakeholders was fascinating for us. Communist lawyers representing left-leaning clients in Chile during the Pinochet era, lawyers representing political prisoners before the apartheid courts of South Africa, the Tunisian courts of the Ben Ali dictatorship, or even right-wing lawyers representing settlers in Israel—many of these lawyers eschewed the notion of neutrality or a detached professional service attitude toward clients and instead took on identities as political or social actors. In many instances, such lawyers embraced activism through law.

Below we have drawn out a couple of illustrative themes that are addressed in more detail in the book.

“Taking sides” and the source of legal ethics

Of course, a key challenge for such lawyers who decide to “take sides” is how such engagement squares with the idea of legal professionalism. Sometimes in the contexts where we were researching, local and national bar associations were regarded as aligned with the country’s particular regime. For example, the increasingly authoritarian Cambodian leader Hun Sen has ensured that the Cambodia Bar is under governmental control, and in South Africa the bar and law societies were themselves the object of institutional hearings by the Truth and Reconciliation Commission for their complicity in the apartheid regime. Thus, because many cause lawyers viewed the normal bar’s regulatory and ethical procedures as tainted, we were interested in exploring where cause lawyers found their moral and ethical compass when working with clients and social or political movements with whom they had significant levels of political sympathy. The need for such an ethical baseline was of course all the more compelling when those clients and their affiliates were engaged in acts of politically motivated violence.

In broad terms, we identified three ideal types of cause lawyers who found different ways of navigating the boundaries of what they would or would not do in pursuit of the cause.

1. Struggle lawyers. For this variant of cause lawyer, the justness of the cause justified almost all actions. One communist lawyer during the Pinochet era told us, “We were part of the struggle against the dictatorship … attempting to be neutral, it was just not possible; it was not even an ethical issue.” Another South African anti-apartheid lawyer said, “You were either on the side of justice or you were on the side of oppression.” Many such lawyers were quite open that they passed information between their political prisoner clients and the movements on the outside. Another South African interviewee discussed what he termed “struggle ethics”—a process whereby lawyers would weigh their own legal and ethical codes alongside the needs of the broader anti-apartheid struggle, including countenancing illegal activities on a case-by-case basis.
2. Human rights lawyers. A second ideal type of cause lawyer we identified were those who saw themselves as human rights lawyers. As one prominent Israeli cause lawyer told us, “I as a human rights lawyer have no position regarding how the Israeli/Palestinian conflict should be resolved—one state, two states—as long as human rights are respected, as long as people are being treated equally.” In conflicted or authoritarian societies, a human rights framework served as both a shield and a sword for lawyers doing politically sensitive work. As a shield, it grounded their work in the independent legal standards of international human rights law and provided a bulwark against the charge that they were terrorist “fellow travelers.” It also gave them access to a crucial international human rights network that could provide legitimacy, protection, and international support. Indeed, many of the self-identified human rights lawyers we interviewed had worked with or for local or international human rights NGOs. As a sword, human rights lawyering also provided a platform for attacking authoritarian governments, critiquing breaches of binding international treaties or domestic constitutions, and doing so in ways that made it more difficult to dismiss such work as mere politically motivated opposition.
3. Moral community. A third ideal type of cause lawyer we identified were lawyers who saw themselves as belonging to a pragmatic moral community. Struggle or human rights lawyers tended to place greatest emphasis on the importance of external reference points (“the needs of the struggle” or international human rights standards) to determine appropriate courses of ethical or professional action. Those whom we termed a moral community of cause lawyers tended to prioritize pragmatic decision-making based on internal organically constructed values and working practices generated from within communities of cause lawyers. Once cause lawyers began to view themselves as such, they were often drawn to seek the advice of practitioners doing similar work, particularly if they were viewed with suspicion by conventional lawyers and the state. As one Chilean cause lawyer told us, in a context where people were being tortured and murdered, and disappeared with apparent impunity, the Vicariate (a church-based NGO documenting abuses and gathering evidence) “was a human space where we all met, where we shared our experiences and told each other what we were living through.”

Boycotting unjust legal proceedings

One of the basic precepts for lawyers working in any democratic legal system is the notion that, with the application of due legal skill and ability and a fair judge (or jury), there is at least some chance of a just outcome. While lawyers are often critical of the structural failings of the legal system in which they work—arguing that particular laws, judges, political or policy initiatives, types of legal proceedings, and indeed core elements of a particular legal culture are fundamentally unfair or unjust—this rarely leads them to conclude that they should refuse to engage. It is true that in the wake of 9/11 the operation of military tribunals such as Guantánamo, as well as national security closed material proceedings, provoked some reflective soul-searching among lawyers in the United States, United Kingdom, and elsewhere. However, discussion on an organized boycott of legal proceedings is relatively unusual beyond periodic industrial-action-related strikes. There has been comparatively little analysis of the circumstances in which lawyers decide to boycott legal settings, and we sought to address those gaps in this book.

In the course of our research, we put questions on boycotts to all of our interviewees, but it resonated more strongly in some jurisdictions than others. The collective strike, court boycott, and related public protest by Tunisian lawyers between December 2010 and January 2011 directly contributed to the collapse of the Ben Ali regime. In addition, there is a long history of boycotting Israeli military courts among Palestinian lawyers, and this debate has resurfaced periodically among Israeli cause lawyers in relation to the high court. We therefore focus on legal boycotts in Tunisia and Israel/Palestine.

In Tunisia, the general strike and sit-ins by lawyers were designed to make the courts unworkable.

In the Tunisian context, there is a significant tradition of lawyers’ boycotts and strikes. Following independence from France in 1956, Tunisia endured a one-party state dictatorship led first by Habib Bourguiba until 1987, and then by Zine El Abidine Ben Ali until 2011. As one Tunisian cause lawyer told us: “There were boycotts in the 1990s in protest against the lack of judicial independence, but we lawyers always felt a responsibility to defend our clients, to support the victims of the regime.” The tradition of activism among some Tunisian lawyers derived in part from the regime’s attempt to exert tight control over the legal profession. Under both Bourguiba and Ben Ali, the Tunisian Bar was carefully monitored to identify potentially subversive members. Both regimes made significant efforts to co-opt the Tunisian Bar Association (TBA), fix bar elections, and abolish local branches, and allowed judges to charge lawyers with the criminal offence of “bad faith” if they advanced arguments that displeased the court. Committed cause lawyers within the Tunisian legal profession increasingly pressed the TBA to stand up for the rights of lawyers, and over time the TBA became more willing to do so.

In the early 2000s, the governing council of the TBA called for a boycott of Tunisian courts in protest against the abuse and harassment of lawyers. Similarly, in 2005 the arrest of one oppositional lawyer, Mohamed Abou, resulted in a sit-in at Lawyers House (Maison de avocet) across the road from the main courthouse in Tunis. The protest ended up lasting over 50 days.

This tradition of boycotts, strikes, and protests by lawyers came to the fore as the Ben Ali regime began to unravel. In 2010, following the infamous suicide by self-immolation of an unlicensed fruit and vegetable seller, Mohamed Bouazizi, cause lawyers were involved in helping to organize the protests that followed. Lawyers marched in their robes from the courts, the police responded with violence, and lawyers in turn organized sit-ins in front of the courts—urging the public and their legal colleagues to join them. The focus of the protests included not only the repression of lawyers but also human rights abuses such as arbitrary detention, the torture of prisoners, lack of free speech, corruption, and ultimately the regime itself. Slogans at these protests mixed political and professional goals: “No to dictatorship,” “yes to an independent legal system,” and “lawyers are the first lines of defense for people’s rights.” Increased police violence against lawyers inside and outside the courts, and a general strike by the Tunisian trade union movement, ultimately led the initially reluctant TBA to call for a lawyers’ general strike.

The general strike and sit-ins by lawyers were designed to make the courts unworkable. The images of lawyers leading protests in their professional attire of black suits, white shirts, and black ties spread rapidly via social media and were picked up by the international broadcast and print media. Led by experienced cause lawyers, hundreds of Tunisian lawyers encircled the Ministry of the Interior on January 14, 2011, shouting “Ben Ali, degage” (“Ben Ali, get out”). After 23 years of dictatorship and one month of popular protest, Ben Ali fled Tunisia. The lawyers involved had caught the general mood of regime breakdown and played a significant role in its demise. As one interviewee who was at the iconic Ministry of Interior protests told us:

There were two lawyers that climbed the wall and window of the Ministry of the Interior, shouting slogans to the crowd and those inside. That’s when we started thinking that it was over for Ben Ali. One of the doors of the ministry opened, and somebody from inside gave a megaphone to the lawyers so that their voices could reach farther.

As we document in chapter 3 of the book, the Israeli/Palestinian context has a similar tradition of legal boycotts and strikes—although with less tangible results. Following the Six-Day War in 1967 and the Israeli occupation of the West Bank and Gaza, the Israeli government supplanted the Jordanian civil courts that had previously operated in Jerusalem and the West Bank with Israeli courts and established a series of military courts in the newly occupied territories. Palestinian lawyers thus declared a boycott of both the civil and military courts. As members of the Jordanian Lawyers Union, striking lawyers were paid a stipend from the union—a responsibility that ultimately passed to the Jordanian government. Those who refused to strike were expelled from the Jordanian Bar. Premised on the notion that the occupation was a temporary phenomenon, the boycott was widely adhered to by Palestinian lawyers. The Israeli authorities responded by authorizing Israeli lawyers to appear in the military and civilian courts.

Israeli lawyers have also engaged in periodic debate about boycotting occupation-related litigation before the Israeli High Court (Supreme Court). Despite a mixed record on actually preventing human rights abuses, recourse to the Israeli High Court has long been viewed by Israeli cause lawyers as the default option for occupied-territories-related litigation. At a conference to discuss litigation strategy in June 2007, an army brigadier general and head of civil administration in the occupied Palestinian territories told the activists that they were prolonging the occupation, concluding, “The system cannot function without you.” He suggested that their legal activism did little other than “soften the sharp edges” of military repression and domination, in effect abetting the occupation by providing the fig leaf of legality. After significant internal discussion among the human rights NGOs about whether the high court should be boycotted, consensus could not be reached and the initiative was shelved.

What should one make of all this? On the one hand, as noted, boycotts are relatively rare because lawyering is, by definition, what lawyers do. On the other hand, there are some overlapping themes in cause lawyers’ perspectives on legal boycotts.

First, there are practical considerations. As in any form of collective action, the extent to which lawyers can organize and sustain collective action is key. In the Tunisian context, pressure from local branches and prominent cause lawyers eventually led the bar association to support the general strike in 2011 and boycott the courts. In the case of the Palestinian lawyers’ boycott of the Israeli military courts after the 1967 war, the fact that these lawyers were organized by a collective entity—the Jordanian Bar—and financially supported by the Jordanian government was crucial. Conversely, the fact that other lawyers (first Israelis, then other Palestinians) were willing to do the work undermined the collective power of the boycott. Unsurprisingly, this latter point—“If we boycott, other lawyers will do the work”—was raised in the other sites we researched where there was no tradition of legal boycotts. Often it was allied with a concern that defending politically motivated clients in political trials would otherwise be done by lawyers who were more pliant or sympathetic to the regime.

A second important variable was the relationship between boycotting lawyers and the social or political movements opposed to the regime. In the Palestinian context, the boycott of the courts was framed as an integral part of the broader struggle against an occupying power. In Tunisia, the lawyers’ boycotts were historically focused on legal and professional issues (for example, independence of the legal profession or judiciary) but ultimately merged with broader demands for an end to the regime. The Tunisian lawyers, while not necessarily the leaders of the movement that saw Ben Ali topple, undoubtedly played an important practical and symbolic role in highlighting injustice and expressing a shared narrative of the anti-regime social movement. The lawyers’ boycott of the courts and their prominence in public protests represented a clear deployment of lawyers’ cultural capital. Moreover, it was the leadership of the legal profession (the Tunisian Bar Association) rather than just cause lawyers who were at the fore. If a national bar association becomes sufficiently radicalized to engage in boycotting the courts, a political regime may be in some trouble.

That said, one should not overstate the agency of lawyers. For a legal boycott to have its desired effect, the lawyers involved must be able to impact the functioning of the legal system and, by extension, the political regime must have a significant interest in the continued functioning of that system. If the lawyers’ aims are comparatively narrow (for example, focused on the ways in which courts are operating, the treatment of lawyers, and access to or support for clients), the legal or political authorities will often seek to engage with lawyers to resolve such disputes. However, if a lawyers’ boycott is more explicitly political and the space for engagement/resolution is narrowed, much depends on the stability of the regime at that particular time. For example, in the case of Israel/Palestine, explicitly political boycotts linked to ending the occupation or in support of the first intifada—even when allied to broader military and social pushes against the occupation—failed because of the asymmetrical nature of the Israeli–Palestinian power relations. In contrast, the lawyers’ boycotts in Tunisia were allied to broader military, social, and political campaigns and were staged at a time of vulnerability for the respective regimes.

A further important theme for lawyers considering whether to engage in a boycott concerns legitimacy. In reality, comparatively few authoritarian states completely abandon their (ostensible) commitment to some variant of the rule of law. Indeed, in many instances law becomes the delivery mechanism for authoritarian impulses. The role of legality in enabling and legitimating repressive political projects can be seen widely, such as when giving prominence to constitutions, holding political trials, expanding emergency laws, and engaging in overtly racist social and political engineering through law (for example, during apartheid in South Africa). By definition, law requires lawyers to make it work, and conventional lawyers will often represent clients in a legal setting regardless of its inherent unfairness. For politically committed cause lawyers, the “existential dilemma” (as the Israeli human rights lawyer Michael Sfard has described it) is whether their participation in a particular legal forum goes too far in “involuntarily legitimating” what is a manifestly illegitimate legal process.

The final theme that emerged from our consideration of boycott was what one Israeli human rights activist we interviewed termed the “vision thing.” If cause lawyers are going to rationalize to themselves, their clients, or fellow lawyers a decision to boycott a particular court, it only makes sense if it is part of a broader strategy. As another Israeli cause lawyer told us, considering a boycott reminds us that “litigation is only one leg in every struggle.” Obviously, for some, such as those involved in the boycott of courts in Palestine or Tunisia, the vision was an alternative political order. For others, such as Israeli lawyers, the vision associated with the decision to boycott was more obviously about legality—enhanced human rights protections, the independence of the judiciary or legal profession—a “real” version of the rule of law. In the following section, we will now consider the more immediate resistant strategies and tactics of cause lawyers who engaged in unfair legal systems in full knowledge that the chances of success were slim.

Trials and litigation as sites of resistance and memory work

The basic instinct of most lawyers is to engage in the legal process. However, within the cause lawyering literature, the effectiveness of law as a tool of resistance or social change has long been questioned. Early litigation successes on due process, civil rights, and reproductive rights in the United States gave way to a sustained critique on the efficacy of litigation as a driver for social change. For some critics, cause lawyers active in the civil rights era on issues of race, native people’s treaty rights, and labor reform effectively co-opted these campaigns, dulling their political potential and legitimating the existing order. In addition to distracting social movements and diverting energy and resources, some critics have also argued that a fixation on litigation can provoke a backlash, wherein a conservative judiciary may apply the narrow legal concept of rights to the extent that either future litigants are substantively worse off or a hostile political counterreaction is provoked. Still others expressed concerns about the “double agent” ethical challenge in cause lawyering litigation—questioning how one can effectively represent the interests of an individual client while also seeking strategically to advance a political or social cause. As one would expect, politicized cause lawyers tend to ask themselves hard questions about the efficacy of law as a tool of social change.

This was certainly the case for the cause lawyers we interviewed in conflicted and authoritarian societies. Unsurprisingly, few of our interviewees appeared to have illusions about the “myth of rights” and were well aware of the dangers of litigation diverting resources from broader social or political movement struggles. Many had worked closely with human rights NGOs, labor unions, and other civil society groups. Indeed a number argued that strong social movements (for example, the women’s movement in South Africa) provided a buttress against trigger-happy litigating lawyers.

In spite of low expectations of justice in general, a number of clear themes concerning the resistant potential of courts emerged from our research: courts as sites of instrumental resistance, courts as sites of symbolic resistance, and courts as sites of memory work.

First, even in the least hopeful environments, courts can serve as sites of instrumental resistance to authoritarian impulses. We asked interviewees to elaborate on the factors influencing legal outcomes in such contexts. Cause lawyers pointed to a range of variables including the type of case, different legal settings (for example, military courts versus the Supreme Court), the political or historical context in which a case was heard, and the particular judge.

For example, a number of scholars have documented how lawyers in South Africa enjoyed limited success in exploiting loopholes in the pass laws (which restricted the movement of Black people), exposing murder and torture by the security forces, challenging forced removals, and recognizing labor rights and trade unions—slowing down the apartheid project. In Tunisia lawyers successfully litigated certain gender-related issues including divorce, inheritance law, and the custody of children—albeit in a context where the commitment to “state feminism” was used internationally to mask abuses against those deemed a threat to Ben Ali, including women affiliated with opposition movements. In Chile, even during the worst periods of the Pinochet regime, when over 3,000 people were murdered or disappeared and over 40,000 were tortured with little effective check by the legal system, lawyers still managed to have some death sentences commuted to exile before the military courts.

In the case of the Israeli military court system, with its 99 percent plus conviction rate, the space for instrumental resistance would appear limited. Almost all military court cases are resolved through plea bargaining, a process rationalized by the lawyers we interviewed as doing the best possible for their clients. The litigation strategy before the Israeli High (Supreme) Court on key occupation-related issues such as challenging illegal settlements on Palestinian land has been described by one prominent cause lawyer as a “colossal failure.” Nonetheless, the Israeli High Court has in previous decades interfered with the policy of “deporting” Palestinian activists, rebuked the Israeli security forces for their use of torture, improved prison conditions, and granted thousands of Palestinians relief on issues such as land rights, travel permits, and other issues in nonbinding out-of-court settlements. As one Israeli human rights activist told us:

In the context of the Occupation, we’re fighting a losing battle. At best, and quite infrequently really, litigation is an annoyance; it’s the sand in the cogs of the machine, slowing things down, making the state work harder, having to justify or rationalize what they are doing, delaying a policy for a year or two or having to tweak it, hoping something will come out of nowhere.

In politically fraught contexts where the chances of material success are slim, the symbolic importance of the court as a site of defiance, rupture, or subversion is all the more important. Law can provide both a locale for resistance and a language in which issues are framed and wherein the legitimacy of domination can be symbolically challenged—in other words, named for what it is. Such resistance is often designed to reach a diverse range of audiences including supporters of the opposition movement, the public within a particular country, and international stakeholders. Central to the objective of reaching audiences is the way that resistance is “performed.”

Lawyers sometimes work closely with politically motivated clients to enable them to use their trial as a platform to advance their political cause and to critique the prevailing regime. This is precisely what happened in iconic cases such as the Rivonia trial of Nelson Mandela and his codefendants. While such political resistance in the courts of South Africa is well known, we found evidence across all six of our sites of not only defendants but also cause lawyers themselves turning legal settings into sites of “contentious performance.”

For example, a Palestinian NGO director and cause lawyer told us how he used court proceedings to reach a broader international audience in a context where the international media were not present on the ground:

We took four or five cases on Israeli house demolitions. The army were enforcing a siege throughout the West Bank. The media could not enter, so we started to document it. We wrote it up in English, sent it to CNN, Al Jazeera, the BBC, the New York Times, the Guardian, etc. Then we go to court—the state must respond, so you have a drama around the court, the media are there, and then the Israeli media also get interested because of the international noise.

Finally we also found that cause lawyers used courts as sites for what we termed “memory work.” In Chile, in particular, where memory work associated with the Pinochet era is common parlance, interviewees told us of really interesting ways in which lawyers engaged in such activities during the dictatorship. For example, one interviewee explained how she and her colleagues deliberately took advantage of the paper-heavy nature of Chilean legal culture—both to highlight the realities of the state’s disappearance strategy but also with an eye to some future accountability:

Why did we insist on these hopeless legal battles, you ask? To document, document, document these violations of human rights, to keep a very professional record of it all. We gathered the writs, the responses of the military courts, the appellate courts, all the legal proceedings, the statements of the victims, the witnesses, the family members. It was all we could do. That’s basically what we had. But we thought this dictatorship cannot last forever.

Conclusion

The above discussions represent just a snapshot of discussion in the broader book. We also have significant chapters on gender and cause lawyering in conflict and transition, the role of lawyers in negotiating peace agreements, and the role lawyers play within state institutions in such contexts.

We have been drawn in this book to lay bare the tools and strategies that lawyers resort to when professional boundaries, ethics, and norms are challenged and compromised. In most of the sites we studied, lawyers’ lives were much more directly affected by the power of the state and increased mobilization on the part of lawyers (for example, in Tunisia, Palestine, and Israel) who saw direct conflict between lawyers and the state as well as tensions within the legal profession itself. We have also been intrigued by the diverse circumstances in which some lawyers appear willing to sacrifice material comfort, safety, and well-being in support of their clients and the most vulnerable, more generally, in pursuit of a political or social project or as an expression of their commitment to a “real rule of law” in contexts where law has been twisted or instrumentalized for “wicked” purposes. Taking our intrinsic interest in the lives of such lawyers in such societies as a given, we would nonetheless argue that their experiences are of direct relevance for readers in the world’s settled democracies.

“Why did we insist on these hopeless legal battles? To document, document, document,” said a Chilean interviewee.

Reflecting on the human rights abuses perpetrated by the United States and its allies in the two decades since 9/11, Rick Abel and others have demonstrated that what was initially justified as an exceptional response to exceptional circumstances can all too readily be normalized, routinized, and rationalized. Terence Halliday has also argued recently that for the rule of law to count, it must be in play in extremis, that is, where we learn how durable it is when it is under the most pressure. For Halliday, the role of lawyers and human rights activists in such periods is to resist where possible, create archives, document abuses, and “erect a monument of record that later will be the legal and moral yardstick against which predatory rulers will be held accountable”—exactly as many of the cause lawyers we interviewed have done.

We finished the book while watching the efforts of former president Trump to undermine the 2020 U.S. presidential election by pressuring local election officials, instigating dozens of baseless legal challenges, and encouraging a violent mob assault on the U.S. Congress in an effort to prevent the election results being validated. As President Biden noted in his inaugural address in January 2021, democracy is indeed fragile. Drawing upon the lessons from other contexts that have experienced the very real consequences of violence, human rights abuses and authoritarianism, and the role by lawyers in enabling or resisting such impulses has never appeared less exotic.

Kieran McEvoy is Professor of Law and Transitional Justice at the School of Law and a senior research fellow at the Senator George J. Mitchell Institute for Global Peace, Security and Justice, Queen’s University Belfast. 

Louise Mallinder is a professor of law at Queen’s University Belfast.

Dr. Anna Bryson is a senior lecturer in the School of Law and a fellow at the Senator George J. Mitchell Institute for Global Peace, Security and Justice, Queen’s University Belfast.