Function and dysfunction in post-conflict justice networks and communities.

• Author: Baylis, Elena
• Position: I. Introduction through III. Two PCJ Communities B. Local, Intra-institutional Knowledge Communities, p. 625-660

ABSTRACT

The field of post-conflict justice includes many well-known international criminal law and rule of law initiatives, from the International Criminal Court to legal reform programs in Afghanistan and Iraq. Less visible, but nonetheless vital to the field, are the international staff (known as internationals) who carry out these transitional justice enterprises, and the networks and communities of practice that connect them to each other. By sharing information, collaborating on joint action, and debating proposed legal rules within their networks and communities, internationals help to develop and implement the core norms and practices of post-conflict justice. These modes of collaboration are particularly important because the field's fundamental norms and practices are still evolving dramatically. But at times, these networks and communities are dysfunctional. Then, internationals' ability to engage in robust dialogue and work together is compromised, to the detriment of the effectiveness of their work and the maturation of the field as a whole. In examining these issues, this Article draws on a series of interviews with internationals who have worked in post-conflict justice.

TABLE OF CONTENTS I. INTRODUCTION II. NETWORKS AND COMMUNITIES A. Defining Networks and Communities B. How PCJ Networks Are Formed, Used, and Maintained 1. Narrative of PCJ Network Formation and Use 2. Key Factors in Network Formation and Use a. Development of Network Ties b. Categories of Network Use C. PCJ Communities 1. Communities of Practice III. TWO PCJ COMMUNITIES A. Details of ROL and ICL 1. Content of ICL and ROL 2. Structure of ICL and ROL Work and Employment 3. Development of Modern ICL and ROL B. Local, Intra-institutional Knowledge Communities 1. ICL 2. ROL C. Knowledge Sharing and Assistance. 1. ICL 2. ROL. 3. Reification and Boundary Objects VI. CONCLUSIONS A. Functional and Dysfunctional Communities B. Boundaries and Intersections 1. ROL Intersections with Post-conflict National Networks and Communities 2. ICL Intersections and Boundaries APPENDIX A. METHODOLOGY APPENDIX B. INTERVIEW INDEXES I. INTRODUCTION

The field of post-conflict justice includes many well-known initiatives, from the International Criminal Court (ICC) trying accused war criminals in The Hague to the United States organizing massive programs to rebuild the justice systems in Afghanistan and Iraq. Less visible, but nonetheless vital to the field, are the international staff (known as internationals) who carry out these transitional justice enterprises, and the networks and communities (1) that connect them to each other.

In international criminal tribunals and in post-conflict states, internationals form tight-knit social communities. As they move from one job and post-conflict setting to another, these local relationships become transnational networks. Internationals share soccer scores and job opportunities with their local and transnational connections, to be sure, but they also debate new legal developments, collaborate on joint projects, and offer professional advice and assistance. Internationals conducting rule of law (ROL) programs form working relationships for the purpose of training judges or passing reform legislation, for example; those working in international criminal law (ICL) e-mail each other with news of the latest decisions and judgments.

When used in these ways, internationals' communities and networks become a source of knowledge production and circulation, simultaneously contributing to and putting into action the core norms and practices of post-conflict justice. Or at least, they do so when they are characterized by a common purpose, mutual trust, and the free flow of information. But at times, these networks and communities are dysfunctional. Then, these modes of interaction and collaboration are disrupted by competition, mistrust, or simple unawareness of each other's activities.

These dynamics are important because, in the young field of post-conflict justice, the core norms and practices are still evolving dramatically. Over the last 20 years, international criminal tribunals and national courts have been creating the modern standards of evidence, procedure, and criminal responsibility in ICL proceedings. The United Nations and other organizations working in ROL have been developing indicators for measuring progress and guides to best practices. In this context of rapidly emerging legal rules and policies, internationals' ability to engage in robust dialogue and joint action with others in their field is critical both to the maturation of ICL and ROL systems and to the effectiveness of their initiatives.

This Article examines the networks and communities of internationals working in post-conflict justice from the perspective of the internationals themselves. It is based on my interviews with fifty internationals about their perceptions of their work and their connections with others in the field. The Article identifies factors that influence how internationals' networks and communities form and function, with particular attention to the role of these relationships vis-a-vis the development of the core norms and practices of ICL and ROL.

In so doing, this Article builds on the existing legal literature on transnational communities and networks. 2 This literature has recognized that post-conflict justice (PCJ) networks and communities are important, but the scope of its inquiry into these networks and communities has been limited in several ways. Thus far, it has primarily looked at what high-functioning networks are already doing or could potentially do and has mainly focused on assessing these networks' legitimacy and effectiveness in comparison to other mechanisms for accomplishing the same tasks.3 The literature has focused less on trying to understand what factors enable networks and communities to form and influence their level of function or dysfunction. It has also not previously considered the role of network and community interactions in contributing to shared practices and ideas transnationally throughout ROL and ICL settings. (4)

This Article seeks to advance the literature by systematically examining these fundamental features of PCJ networks and communities. This subject is important for several reasons. On a theoretical level, achieving a better understanding of network and community formation, function, and participation in norm development contributes to more robust concepts of networks and communities. On a practical level, it is valuable to study these communities and networks because they are performing important functions within post-conflict justice--sometimes effectively, but sometimes not. By assessing networks' and communities' key characteristics, this Article identifies ways of enabling them to operate more productively. Finally, this analysis also provides an additional way to engage with several particular discussions in the literature and in policy-making, such as controversies over new ICL norms, questions about the legitimacy of ROL models and best practices, and efforts to extend PCJ networks and communities to include nationals of post-conflict states.

Part II of this Article introduces the concepts of networks and communities of practice. It provides a narrative description of how PCJ networks form and are used by participants, followed by an overview of the factors that seem to affect these processes.

Part III focuses on case studies of two PCJ communities: a community of embedded ROL internationals who work full-time in post-conflict states and an ICL tribunal community. This section analyzes in some detail whether and how the members of these communities are able to share information with each other and develop common norms and practices. While most interviewed members of the ICL tribunal community felt that they are able to freely share professional information and work together on joint projects, the interviewed members of the embedded ROL community tended to feel constrained from doing so by the existence of structurally created competition among community members. Correspondingly, many internationals working in ICL tribunals expressed a sense of common purpose and identity focused on building a system of ICL; embedded ROL interviewees did not express such views. This Part explores the several characteristics of ROL and ICL that seem to contribute to these perceptions, as well as the consequences for the development of common norms and practices in each area.

Part IV summarizes my findings concerning the factors affecting PCJ community formation and function. It also explores the boundaries of ROL and ICL communities, their intersections with other communities and networks, and the implications for the development and implementation of their core norms. Following the conclusion in Part IV, Appendix A provides information about the study methodology, and Appendix B sets forth aggregate information about the interviewees.

While the appendices describe the study and its methods in some detail, for purposes of engaging with the issues discussed in this Article, the reader should have in mind the following fundamental aspects of the nature, scope, and limits of the study and of the information gathered in the interviews. First, this was a qualitative study based on thoughtful analysis of interviewees' perceptions of their work experiences. Most interviews were recorded and transcribed with the permission of the interviewees; I coded the transcripts for relevant concepts and experiences, and analyzed the coded materials. (5) Second, the study was designed to identify themes that arose across a variety of institutional and national contexts and to look for convergences and divergences in how those themes emerged in different settings. Accordingly, the study includes participants from many different institutions and settings, but frequently there are only a few...