Lawyers During Conflict

Volume 8 • Issue 5 • July/August 2022
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Adding Capacity in Conflict Zones

International human rights lawyers on collaboration, community, and creativity

In the lead story of this issue of The Practice, Kieran McEvoy, Louise Mallinder, and Anna Bryson explore how local lawyers operate in countries in the midst of, or recovering from, conflict. The coauthors use particular country case studies, including Cambodia, Chile, Israel, Palestine, South Africa, and Tunisia, to explore how these on-the-ground lawyers work to advance their causes, including the struggles, trade-offs, and complications therein. While local lawyers are the tip of the spear, and often face the most intense challenges, they are often buttressed by a wider human rights community. More specifically, the international human rights realm is filled with large organizations—the International Committee of the Red Cross, Human Rights Watch, the Open Society Justice Initiative, and more—that provide assistance, reporting, partnerships, and relief for civilians, activists, and of course lawyers working and surviving in such contexts. How do these international cause lawyers think about their role in complement to local communities? How do they report and litigate ethically and compassionately in countries in which they might not hold citizenship? In this article, we talk to two trained lawyers who work for large international human rights organizations—Niku Jafarnia at the Center for Civilians in Conflict (CIVIC) and Matthew Wells at Amnesty International—about what it’s like to work in such conflict regions as collaborators in a larger fight for justice.

Versions of justice: Niku Jafarnia

Every day, as the Middle East and North Africa researcher for CIVIC, Niku Jafarnia faces the daunting challenge of figuring out what justice looks like. She does not do it alone, and in fact, if you ask her, she says, “At the end of the day, my vision of justice is what the communities I work with view as justice.” She goes on: “But when people are in the midst of armed conflict, it’s often challenging to take a step back and think about what they would want to see as a future form of reparation or accountability.” CIVIC was founded in 2003 by Marla Ruzicka, an activist compelled to organize after learning of “the U.S. military’s failure to account for civilian casualties in Iraq.” Since 2003, CIVIC has grown considerably, with staff dedicated to or stationed in Nigeria, the Democratic Republic of Congo, Indonesia, Mali, Yemen, Afghanistan, the Hague, Ukraine, and more. Jafarnia’s research so far has focused on Iraq, Yemen, Syria, and Libya, and she hopes to see this expand. She is based in Beirut, Lebanon, where she moved in 2020 after graduating from Harvard Law School and Harvard Kennedy School to work as a legal fellow for a Yemeni civil society organization, Mwatana for Human Rights.

Conflict regions require inventive lawyering.

Throughout her career, Jafarnia has had to learn how to lawyer in conflict regions where, as a first-generation American whose family emigrated from Iran, she knew to defer to others’ local knowledge and expertise. At Mwatana, she was focused on research and reporting on patterns of international humanitarian law (IHL) and international human rights law (IHRL) in the Yemeni civil war, as well as preparing research for evidence in international litigation—for example, against arms manufacturers in Europe. Her training—particularly stints in the Harvard Immigration and Refugee Clinic, where she learned to lawyer in a “broken” system—left her well-prepared to be a creative legal practitioner. But as a non-Yemeni (and based outside of the country), she was well aware of how much she relied on the rest of the staff based in the country. She says:

Almost everyone employed by Mwatana outside of myself and one of my colleagues were Yemeni. All of their conversations were happening in Yemen with communities on the ground there about what would provide them with a sense of justice. Every route or idea we were pursuing was founded in what we were hearing from people and what they wanted to see, and we would fight for that and do whatever we could to achieve that.

To accomplish what she could from afar, Jafarnia, working with Mwatana’s Accountability team, would receive catalogs of information regarding attacks and other abuses against civilians from on-the-ground researchers in Yemen. The team would then deduce the patterns in the data to understand where IHL and IHRL violations had taken place, and organize and narrativize it as a report or, sometimes, for litigation. From the outside, her work looked similar to many other “knowledge” workers operating remotely during a pandemic: she was attending Zoom meetings, and researching, editing, and writing all within the space of a 12-inch digital screen. It was in this context that she and her collaborators compiled a 386-page report on the use of starvation as a method of warfare by the warring parties in Yemen. Jafarnia explains that “the report is meant to eventually serve as a basis for litigation.” While starvation is “prohibited by IHL as a method of war” and amounts to a war crime, Mwatana also had the difficult task of proving intent. “Indications of intent in conflict are rarely overt,” the executive summary reports, “particularly with respect to crimes that require specific intent, like starvation.”

“Litigation can become very complicated where countries don’t have well-functioning domestic legal systems…Achieving some measure of justice requires a lot of creativity—combined with local knowledge,” says CIVIC’s Niku Jafarnia.

For Jafarnia her legal training was integral to tackling a challenge that required out-of-the-box thinking. In law school, she says, she was aware that that every single fact pattern or asylum case was going to look very different and required originality. “Each individual you’re working with and every community you’re working with is going to have their own sets of needs. Work is going to look very different with every single thing that you do,” she says. “That’s the most important thing to keep in mind: you’re not doing your best work if you’re trying to reapply the wheel to different contexts and different communities.”

Jafarnia also stresses that many conflict regions require inventive lawyering: “In some contexts, there are very limited options for what you’re able to do on the international or local stage. Litigation, for example, can become very complicated where countries don’t have well-functioning domestic legal systems and haven’t signed on to treaties like the Rome Statute, which governs the International Criminal Court.” What is required? “Achieving some measure of justice requires a lot of creativity—combined with local knowledge—in figuring out what are other possible routes toward specific legislative justice.” At Mwatana, they did not consider pursuing avenues through local courts because, as she says, “that was just not possible.”

Now at CIVIC, Jafarnia has shifted her primary focus from accountability and toward civilian protection. More important, her role at CIVIC provides the opportunity to engage with people on the ground, which has provided inspiration and animation at every turn. “The majority of our work happens through relationships with local leaders,” she says. “We have community groups in cities around the region that meet and discuss the different issues civilians face in conflict, which sometimes are attacks, but often, it’s dealing with checkpoints and searches and the daily interaction with security forces.” CIVIC works closely with both security forces and these community groups, conducting trainings and bringing them together so that civilians have strategies and tools for their own direct advocacy. “The ultimate goal is that CIVIC eventually won’t have to be involved,” she says.

“All of our work is founded on these relationships with different civilians within a locality,” says Jafarnia.

In the next few months, Jafarnia will travel to Libya, Iraq, and Yemen, spending weeks at a time there. Neither she nor CIVIC are trying to step on the toes of the locals; they approach their storytelling and capacity building as additive. “With CIVIC, it’s important that, for the most part, our teams are from the country that we’re working in. They have such a good lay of the land in each context we’re working in,” she says. Like with Mwatana, all her research is led by the conversations happening on the ground. But this time, she’s the one conducting the interviews. “All of our work is founded on these relationships with different civilians and community members and security actors within a locality, not even at a national level but at very small, localized levels.” While she isn’t in the courts—or even drafting legal briefs—Jafarnia is working to understand patterns of civilian harm and to support the local communities, including as they themselves strive to define what protection and justice mean for them.

Going to the countries in which she works has been vital to Jafarnia, who thrives on the personal interaction. “It makes my work feel much, much more feasible, even though I still at times feel overwhelmed with trying to keep up with places that are totally different from one another and have their own histories and complexities and are constantly changing on a day-to-day basis,” she says. Instead, she sees herself a conduit or a stepping-stone for others. “At the end of the day, it’s not about my knowledge. It’s not about my training as a lawyer. It’s really about the people whom I’m getting to work with and speaking to and following as they lead the discussion of what’s happening in their own areas. That’s the way that I feel I’m able to actually do this job in a way that feels right.”

Finding counterarguments: Matthew Wells

When a contested presidential election led to civil war in Côte d’Ivoire in 2010–2011, Matt Wells was finishing up a fellowship with Human Rights Watch, his first job since graduating from Harvard Law School in 2009. During his fellowship, he reported on issues across West Africa such as the forced begging of children in Senegal and violence and impunity in western Côte d’Ivoire. Living in West Africa for the year, he was a go-to expert for the region and was quickly asked to continue as the country researcher. “Being a country researcher—embedded in the country—and alongside activists who are likewise working on those countries day in, day out, can be incredibly important and immersive,” he says.

That first post–law school job, however, stands in stark contrast to his current position as deputy director for the crisis response program at Amnesty International. (He first joined Amnesty’s crisis response team six years ago as a senior crisis adviser, a traditional human rights lawyer role where he did investigative fact-finding.) As deputy director, Wells’ focus is crisis writ large—he is immersed in armed conflict and its ramifications, not a specific locale. And that means reporting on conflicts and their aftermath around the world, from Myanmar to Niger to Iraq and more, working closely with country researchers with the type of deep, immersive knowledge that he knows from experience. “On Amnesty’s crisis response team, we tackle the most pressing crises of the day, which is often what’s on page one of major newspapers around the world, so we have had a number of team members on the ground since Russia invaded Ukraine, but we’ve also engaged in critical, developing situations, like Myanmar since the coup last year,” Wells says.

Law school taught Wells how to “relentlessly question and attack my own arguments.”

In this current role, Wells says he still wears his investigative hat, but he also does strategic planning to strengthen Amnesty’s focus on how conflict affects children, women, older people, and people with disabilities. For instance, he has worked with his team on reports around Northeast Nigeria “where schools have become a deliberate target of armed groups and children have been abducted on mass scale.” In choosing what to work on, he looks at where they “can shine a particularly important light on the issues facing at-risk groups and where we might be able to move the situation,” he says. This means thinking about “what country might be amenable to robust recommendations that we might make, and that then we can use as best practices for other countries. From that perspective, we have to ask: What’s the best case to exemplify this issue, and where can we have the most impact that will ultimately then reach beyond that specific country that we’re focused on?”

They are often the most difficult issues. But, Wells stresses, his legal training equipped him to handle it, substantively and emotionally. He spent summers at internships funded by the law school at human rights NGOs in Argentina and Liberia. He spent every semester he could in the International Human Rights Clinic and, in one project, traveled to Sierra Leone, where he interviewed children and young adults about their experience in diamond mining, put together a report, and did press and advocacy. “This is almost identical to what I’ve done in my career ever since, but it was enormously helpful to have that experience in a lower-pressure setting where we had the law school and supervisors to help us grapple with many of the same ethical dilemmas we face today.”

‘There have been attacks in Ukraine where Russia has used cluster munitions or something else that’s very clearly unlawful, and we’ll have a press release out within 48 to 72 hours,’ says Amnesty’s Matthew Wells.

Moving beyond the practical experiences of the clinic, law school taught Wells how to “relentlessly question and attack my own arguments.” This proves particularly critical for lawyering in conflict settings where he may be trying to find survivors or witnesses and verifying details in chaotic, sometimes dangerous situations. He says:

In my career, I consistently put whatever documentation I’m undertaking under the most intense scrutiny to see where the holes are, where the strongest counterarguments will come from whatever governments or military we’re focusing on. And then trying to fill those holes the best that I can, to make for the strongest argument possible. That kind of relentless examination of what the evidence is and what’s needed for it to be stronger and to be in a position to say, “Yes, we can go forward with publication,” very much comes out of everything that I learned in law school.

The crisis response team suits Wells. Although heightened and stressful, the work happens in bursts—a rhythm that allows for balance. Between March and July 2022, for instance, he’s been in and out of Myanmar and Thailand for two to three weeks at a time, most recently to document the Myanmar military’s use of banned land mines in Kayah State and before that, to document war crimes and likely crimes against humanity by the Myanmar military in Eastern Myanmar. He is hopeful there will soon be a lull where he can do more strategic planning.

“One of the biggest differences between what we do and the work I did as a country researcher is we try to go fast; we’re typically working in environments in which we need to release reporting quickly to influence global discussions in real time,” he says. While traditional human rights reporting might take six to 12 months—or longer—to map, interview, organize, and write a report documenting violations, Wells and his team often release reports in two months, sometimes less. “There have been attacks in Ukraine where Russia has used cluster munitions or something else that’s very clearly unlawful, and we’ll have a press release out within 48 to 72 hours, if we can pin down through photo/video evidence and testimony what happened in that particular strike,” he says.

Wells thinks carefully about how to protect local activists and lawyers who are core to their work.

Amnesty’s crisis response team is composed of around 25 people. It’s a multidisciplinary crew that combines traditional lawyering with nontraditional advocacy. About eight individuals, many of them with law degrees and some former journalists, do investigative interviewing—traveling to a region, talking with survivors and witnesses, verifying evidence, and researching and writing reports. But they also employ communications specialists who think about how public campaigns can complement their report writing, and video producers who make videos to go along with their written output. They also have “several experts in photo and video verification and experts in data visualization and satellite imagery.” Wells calls it a “one-stop shop that brings a bunch of different backgrounds together to try to build the strongest investigations possible.” He says, “We’re trying to be much more creative in how we package and present information to bring it to a much bigger audience.” In June 2020 the team released an interactive platform of videos and evidence “on how tear gas is used in problematic ways by security forces, really allowing the user to visualize what happens when it’s deployed.”

Despite all the talent around him, Wells stresses that the team could not do what it does without the country researchers and their local partners. “Take the most recent example of my trip to Eastern Myanmar. I was working with local human rights organizations that represent different ethnic minorities and with activists on both sides of the Thai-Myanmar border who have connections to those affected,” he says. “Often in places of conflict, we’re working with many different groups and many different activists to try to make sure that we are reaching as broad of a swath of the population as possible that has been affected by violations and to reduce the potential for bias.” Each project, unless the group has deep connections or expertise, begins with an intensive mapping exercise. He says:

We map out who are the actors on the ground day in, day out, who are doing this work. We do initial preliminary calls with them to hear their perspectives on what the most pressing issues on the ground are and what they think organizations like Amnesty should be focusing on, where our value add is to perhaps bring a different type of attention to an issue. And then, we often work with them in terms of identifying victims or witnesses to violations, and ultimately, again, to think through things like advocacy calls and strategy.

‘These projects are often long-term endeavors, and the impact we hope to achieve for people living in situations of armed conflict isn’t usually going to happen overnight,’ says Wells.

Collaborations come with risk. Wells thinks carefully about how to protect local activists and lawyers who are core to their work, pointing to a proper informed-consent policy as integral to making sure everyone is entering into the reporting with eyes open. The team will go even further, protecting identities by removing names, identifying details, and more. Amnesty has rigorous processes in place around all of these challenges, namely making sure everyone knows the risks and how to weigh them.

For Wells, who is now over a decade into a career working on mass atrocity and having moved into this rapid-response role, one of the biggest challenges is how to think about success and impact. “I have to be really honest with myself that these projects are often long-term endeavors, and the impact we hope to achieve for people living in situations of armed conflict isn’t usually going to happen overnight.” There might be a series of reports diving into the nuances of a particular ongoing situation, and there are settings where the team can actually engage the government or military and others, like Myanmar, where they absolutely cannot. “To do this all effectively and, for your own sake, sustainably, you do have to rethink what impact means,” Wells says.

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Lawyers During Conflict Volume 8 • Issue 5 • July/August 2022

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