Wars now take place both inside and outside of the confines of traditional borders. In 2001, Major General Charles Dunlap popularised the term ‘lawfare’ which he described as the ‘newest feature of 21st-century combat’. For this episode, host Neema Jayasinghe and Panellist Vanessa Dib are accompanied by guest Jason McCue in a thought-provoking discussion on this modern form of warfare. In particular, we focus on the Libyan civil war to situate lawfare within the realm of human rights litigation. What role did law play in creating a transitional government amidst the Libyan civil war? How can international human rights law be wielded by victims to confront repressive regimes? Through a rather practical lens, Jason provides his vision of what lawfare is and how it may be wielded in the future.
To begin, we examine what lawfare means in practice. Jason outlines that lawfare as a concept has been used by states from as early as the 19th century and is therefore not a modern construction. This can be seen in British emancipation laws, where Admiralty achieved secondary strategic aims by boarding and plundering Spanish ships under the initial concern for slavery. However, lawfare has admittedly evolved. Jason reasons that lawfare is no longer state-centric and instead tends to be used by civil society and the private sector across numerous facets of international law.
‘Lawfare should be called strategic law and policy.’Jason McCue
In this sense, lawfare is seen in actors using theories and structures available to them as tools to achieve a strategic objective; it is a concept that takes important books as building blocks and answers what will happen in practice. Jason admits that all people’s objectives are different with some actors misusing lawfare to suppress information. Yet, there are many more NGOs and individuals using lawfare to achieve behavioural change for the better. Thus, lawfare is best viewed as a substantive means to support legal and policy lobbying to enact normative shifts.
Our conversation then moves to a question specific to the Libyan context. We ask Jason what challenges litigators face in a transitional period that aims to reconcile the interests of competing players. In this role, you must find a way to talk to all parties involved which often proves difficult. Jason and his team successfully proposed the Benghazi Agreement which gave parity to all English victims not covered under the American Libyan Claims Settlement Act. Jason recalls that this moment – which promised money to victims once the war ended – was one of joy.
‘Since this date, we have not had a single government who have honoured the agreement.’Jason McCue
Unfortunately, the team’s efforts have been met with limited success. The goal line is constantly moving in what has become a long-lasting diplomatic tussle. For Jason, it is important to keep looking for different angles to pursue despite outgrowing the stakeholders involved. When you build a dialogue with people in negotiations it can be incredibly difficult to start anew. Conversely, these fresh faces may also help to provide newfound momentum. The multilateral nature of these periods is not inherently good or bad and is instead what you make of it.
What role did law play in the creation of this transitional government? Jason believes that the question of recognising a state is a practical point rather than a legal one. As the former Presidential Envoy for Somaliland, Jason was part of a convoluted journey to have the state’s independence recognised. This journey was made even more complex by the fact that it was more theme-based than rule-based, with the ultimate goal of gaining a majority of the actors’ support.
‘Recognition certainly came down to legal concepts, but it was more their practical application.’Jason McCue
During Jason’s early days in Libya, the application of concepts was of great importance. Jason’s team spent time debating how a rebel government could act like a state in a legal manner and the implications that would hold for other states recognising their statehood. Despite being in the throes of conflict, these actors are still concerning themselves with minuting meetings and appointing ministers to appear a functional government.
This episode’s discussion then turns to considering how international human rights law can bring justice to victims of repressive governments. Many argue that human rights have a glaring enforcement problem which makes it difficult to punish violators who control the state media, for example, which makes it almost impossible to obtain information. For Jason, this situation is exactly that – tricky, but not impossible. To overcome obstacles, you must think outside the box.
‘The two biggest problems of human rights law are access to justice and jurisdiction.’Jason McCue
Jason argues that the law will provide a solution because that is the point of the law. To protect and promote human rights universally, we must treat access to justice and jurisdiction as slightly separate; the former usually pertains to funding and the latter involves finding a courtroom that will take a case. Jason feels that the world needs a developed law that opens universal jurisdiction more. Other courts must become more accessible and open their jurisdiction, and while this trend is clear in both international and domestic law, it has not gone far enough.
‘In this lifetime, the biggest human rights issues are gender and environmental inequality.’Jason McCue
Cases of gender and environmental inequality are often stopped due to issues of jurisdiction. Jason says that we are not developing laws enough to establish competent courts that deal with these expansive and necessary subjects. Around 90% of environmental harm is committed in the Global South by companies of the Global North. Yet, victims in the Global South have limited access to justice through their courts and cannot get access through other forums because of a lack of jurisdiction
‘You are fighting with one arm behind your back at all times.’Jason McCue
Second, we discuss the issue of funding. A key issue with the litigation market and global funding is that there is a focus on commercial cases rather than on human rights cases. The financial services sector must come together with the human rights sector and develop a suitable funding scheme. For Jason, this is wholly feasible as it is not beyond humankind to provide money for an action for a return of investing in human rights. Still, gathering a consensus on this topic has proved trying.
‘Civil society lawfare is the key to keeping checks and balances on the world.’Jason McCue
To close, we examine the failures of the international community to intervene in catastrophic events such as genocides. For Jason, civil society is not affected by politics and plays a pivotal role when the system fails. Inane problems that persist on a structural level, seen in the veto capacity of the United Nations, entirely stagnate contemporary efforts in the Ukrainian war. The Ukrainian state and the international community will rightly seek accountability through justice tribunals and international courts. But empirically, it has been shown that the ordinary individual will end up with little to nothing.
For sustainable peace to be attained, civil society lawfare must operate in parallel with government and international community efforts. Finally, Jason warns against numerous international actors essentially breaking laws to solve legal problems, such as taking sanctioned Russian assets and confiscating them in Ukraine. This means that the approach in Ukraine towards civil society lawfare is essential for reparations, and will only become more poignant in future conflicts.
Jason McCue is a Senior Partner of McCue Jury & Partners LLP, co-founder of Rigel International, co-founder of EBRO Global, and co-founder and general partner of Greenlit SA. He has served as General Counsel for numerous campaigns, such as Justice for Rohingya Minority and the Omagh Bomb Campaign. Additionally, Jason was the appointed facilitator to the joint UN/AU Darfur Peace Process, an adviser on transitional justice to the Transitional Government of Libya, and an advisor to leading stakeholders in the South Sudan peace process.
Vanessa Dib is an MPhil student in Development Studies at the University of Cambridge. Her interests lie in refugees, populism, and Europeanisation. Currently, Vanessa is writing a dissertation to examine differential treatments of refugees in the case of the Syrian and Ukraine refugees in Poland and Hungary. More specifically, she aims to understand how political and public discourses act as tools to shape responses to refugee crises.
Dunlap, C. J. (2001). Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts.
Kittrie, O. F. (2016). Lawfare: Law as a Weapon of War.
Thompson, L. A. (2022, 8 Jun.). UK Law Firm Seeks Damages From Russia on Behalf of Ukrainians.