Lawyers in conflict and transition: ‘Realigning law with justice’
by Alice HUTCHISON
4 May 2022
The Mitchell Institute at Queen’s University Belfast held a seminar that discussed the challenges faced by countries affected by authoritarianism and the role of lawyers when navigating these difficult contexts. The three speakers — Prof. Kieran McEvoy, Prof. Louise Mallinder, and Dr Anna Bryson — all work within transitional justice, and are authors of a new book, Lawyers in Conflict and Transition. The main focus of their research was to discover how lawyers, “as real people”, operate in conflict-stricken circumstances, including the moral and ethical dilemmas of this role.
Richard English, professor of politics and director of the Senator George J. Mitchell Institute for Global Peace, Security, and Justice at Queen’s University Belfast, led the discussion. English questioned Dr Bryson on the broader project in which the book emerged: “This was an ESRC-funded project that extended over several years. Our data collection hinged on 131 interviews that we did in six jurisdictions across the world. The people we interviewed included lawyers, legal academics, judges, NGOs [non-government organisations], some politicians, journalists, prisoners, and others.” Bryson also spoke about the ethical implications of their position, as academics from Northern Ireland working in the developing world, “We were very conscious of the need, albeit in a somewhat tokenistic way, to put something back.” The trio asked NGOs across Cambodia, Chile, Israel, Palestine, South Africa, and Tunisia ways in which they could help. From this, they produced and translated practical reports for implementation at each site.
English questioned Prof. Mallinder on “the different settings in which people were seeing the law [and] the ways in which that affected their understanding of it”. Mallinder responded, “Law is viewed as not particularly neutral. It is tied to the social, political, and cultural context in which it arises. And those different strands of thought are evident within our interviewees’ responses to how they view the law.” About South Africa, Mallinder spoke about the limits of conservative lawyers who saw themselves primarily as “legal technicians”, compared to the transformative potential of human rights lawyers: “There are a number of human rights lawyers who are viewed as your constitutional visionaries. They played a really important role in ensuring that the new constitution set up in transitional South Africa was imbued with rights protections.” Elaborating on this, Mallinder spoke about how human rights lawyers are drawn to the profession because of its social and political potential:
“For them, the role was a tool to achieve the change they wanted to see in society.”
McEvoy spoke about preconceived notions of cynicism about law in relation to tyrannical states: “You expect a profound cynicism, because obviously in many of the most authoritarian contexts, law itself is a tool for oppression.” However, as McEvoy noted in relation to many of the interviewees, this was not the case: “Law was central to what one of our main interviewees would call, ‘the vision thing’. It’s where the law becomes part of imagining a different universe. Imagining what things might look like in a future democratic state. Realigning law with justice.” Elaborating on McEvoy’s point about justice, Bryson spoke about the role of lawyers as “memory activists”. She discussed how law serves as a mechanism for restorative justice by documenting evidence of crimes that may be used in future prosecutions. Speaking on the victims of war crimes she said:
“They were not expecting justice in the present. [But] bearing witness to a belief in an imagined future version of the rule of law, where legal accountability might be possible.”
Coming to a close on the discussion, English posed one last question to the panel, which was about law and ethics: “Could you say something about how the people you were engaging with and worked with have involved a complicated set of challenges and the ways you have tried to overcome these challenges in regard to ethics?”
Bryson answered by talking about the project as focusing on lawyers as real people and the multiple roles they play by going beyond purely legal obligations for clients: “It wasn’t just about getting the legal services. It was also about bestowing hope and dignity to those who needed it most.” Elaborating on this theme, Bryson drew similarities from previous work she did with prison chaplains:
“I wasn’t just giving legal services. I was a social worker. I was liaising with the authorities. I represented the prisoner at family funerals.”
Mallinder spoke about the ethical issue as related to the role of government lawyers: “Government lawyers play the gatekeeper role. It’s their role to paint the line in government legality. To tell [civil] servants and politicians where they’re going too far. And we all know government lawyers don’t do that. It opens the door to corruption and the erosion of trust in the state.” In Israel, for example, Mallinder mentioned how some of the government lawyers grew so uneasy with the occupation that they were led to leave, because “they felt they couldn’t offer legal advice in that context”.
In this way, the ethical challenges which the legal profession raises by virtue of its nature are highlighted. In violent contexts, lawyers are forced to make difficult choices in terms of submitting to authoritarian forms of legal duties and their own personal, moral, and political values. These two opposing spheres diverge, causing conflict between lawyers’ roles as agents in the interests of the public and that of government policy objectives. In the words of McEvoy, “realigning law with justice” may serve to build a future where the law is primarily used as a tool for positive change and to repeal oppressive legislation.
Image source: Global Research, Centre for Research on Globalization.