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

• Author: Baylis, Elena
• Position: III. Two PCJ Communities C. Knowledge Sharing and Assistance through VI. Conclusions, with appendices and footnotes, p. 660-698

3. Knowledge Sharing and Assistance

   1. ICL

      Looking beyond the workplace, internationals working in ICL tribunals reported that they tend to share information about their work readily with others in both their local and transnational networks, within the bounds of their professional duties of confidentiality. (82) There is no need, as such, for sharing of information between people working in different tribunals in The Hague, or among people doing ICL work elsewhere and their counterparts doing ICL or ROL work in other settings. The work of the tribunals is largely insular, at least for people involved in litigating the trials. But one does nevertheless see the ready flow of information about work, in the form of chitchat and also of more serious discussions about substantive issues. (83) The voluntary nature of these interactions underlines that they are driven by a sense of community--that is, by a shared interest in a particular set of knowledge and activities, and a shared concern with how that knowledge and those activities should be carried out and what they mean. Although participants can, and do, disagree about the answers to those questions, they agree that the questions are valid and important ones. (84)

      As described by interviewees, their interactions span a spectrum from simple news updates to intense debates over the fundamental norms of the field. This wide variety of types of engagement is also characteristic of Wenger and Adler's understandings of communities' ongoing, everyday, multifarious forms of interaction. (85) At the more minimalistic end of this spectrum, some people described their interactions as a way of keeping each other up to date on work-related news, whether transnationally or locally:

      [T]he network that I've created through my work at the tribunals is what often keeps me in the loop. It's friends that I've worked with at [my previous workplace] or that know I'd have an interest in reading the judgment and may have just come across it, or maybe if they were sitting in the public gallery, or they're working on the case. So I guess that's usually how I get most of my information. (86) [T]here's clearly a lot of interaction between courts with respect to interns, especially ... in The Hague. It doesn't even have to be so much that the interns go from one court to another, but they all socialize. They quite often share apartments. You'll get people saying ... "I heard this from somebody who works at the ICC," or "I heard that from an intern at the ICTY' ..., (87) At the other extreme, some interviewees characterized their conversations as a robust mode of exploring different views on contested questions, debating ideas, and in some instances, creating consensus:

      I think first of all you've got the regularity of the jurisprudence or the case precedent being published. People are able to see that for themselves. Secondly, there is quite a lot of dinner party conversation that goes on where people sit around the table, and they'll discuss interesting things that have happened jurisprudentially. And there will naturally be an element of, over time, meeting of minds. But not immediately. People disagree about these things rather violently. (88) There's a lot of old colleagues that went to the other tribunals.... I mean I've got friends at, I think, every international tribunal. And so of course we stay in touch.... [W]e talk about soccer, but we also talk about, well, the latest developments and have discussions. And there's of course a kind of professional exchange about these tribunals, not only about the tribunals but also about the law as such, the substance and the most recent developments. I would say also in depth discussions of how things should run differently, how the law should be, etc. (89) What all of this meant, at least to some ICL tribunal interviewees, was that they envisioned their role as constitutive of knowledge: that they were not merely carrying out the system of ICL but creating that system, through their actions and through their discussions.

      [Initially, m]ost people ... had been at [one tribunal] and nowhere else.... [Then] you started to see people ... in the second-generation tribunal employees moving. [They] had moved to their second tribunal, and then they started moving around. They became experts not only in the work of the one tribunal, but more comparative international criminal law experts. And you're seeing them more and more now.... [S]ome of my colleagues have worked for four tribunals. And even though people say there isn't really this system of international criminal justice--a lot of people say it's maybe developing or it doesn't exist--I believe there is a system because it's not that the courts are necessarily interconnected, but the individuals [who] have worked in this places have created a system.... [T]hey've become more experts on international criminal law than they are in their own domestic criminal law or their own national laws. So there is a sort of system that is developing, because of the people that work in the field. (90) In addition to discussing developments and debating ideas, knowledge exchange between network members sometimes takes the form of requests for direct assistance or advice from friends and responses to those requests:

      I've shot off lots of emails saying, "Can you help me find precedent of--?" And I've sent that email to a couple of places, and I get back something.... [O]ne buddy at [one tribunal] sends me something, someone from [another tribunal] sends something, someone in [a third tribunal].... [S]o it is, in terms of finding applicable persuasive case law within a very short time, it's better than a research database.... [HJaving a friend in all the courts is ... the best timesaver ever. (91) Interviewees also reported consulting with people in other tribunals to share information about their programs and organize structured assistance for their projects:

      Like now we have been managing [our] program and I've been to [another tribunal] to see what is their own program, how we can improve it. I know [an additional tribunal] keeps contact so we have a lot of exchange about [these] issues. We can improve. Sometimes, you know the same lawyers are working on two trials in two different tribunals. So we can also investigate. There is a lot of cooperation between the tribunals ..., (92) And so these connections we have through people who have been at other courts and our ability to - the collegial relationships we have with the other courts has allowed us to draw on a lot of resources from these other courts. They actually have seconded a lot of people to us for various special projects. Or when we decide that we have a problem that we don't have the right skill set to resolve, they will send ... in a SWAT team to fix it for us. So that has been extremely valuable.93 While these sorts of requests for assistance and consultation can become formalized, as the quotations above suggest, interviewees indicated that it is the personal relationships that often provide the actual conduit for an initial request for help and also create a sense of ease in making the request. (94) And although interviewees did not always say this explicitly, these joint projects seem to bolster both the sense of commonality and the actual commonality between the tribunals; when people from one tribunal assist another using what their own tribunal does as a model, that tends to increase both the actual overlap in tribunal practices and also the awareness of that overlap among all the participants in that project.

      Also, while these forms of assistance can be understood as part of a knowledge-building process, sharing and developing tools and information, they can also be understood as joint action. As such, they are linked conceptually to the coordinated action emphasized by embedded ROL interviewees, which will be discussed below.

      Interviewees identified three interconnected reasons for the ease of sharing information, assisting each other, and talking about ideas. The first two reasons are the sense of common identity and common purpose that also come through implicitly in people's explanations of enacting their knowledge and skills in their work, as described above. In their express explanations of this sense of commonality, the movement of people between tribunals is an important factor:

      [My interaction with people at other tribunals] operates on two different levels. One is we've talked about the serious issues, you know, "We have this issue, how have you handled it, have you had it, has it come up?" ... And then there's the ... more personal type issues ... I mean this is a little world now where people have--as I'm sure you've seen, people move from tribunal to tribunal. There's a lot of crosspollination. And so, there's a lot of "Well, how do you find working for that person?" And "Do you think I should move over to this job?" A lot of career, personnel type discussion that goes on. As though it were one big courthouse. Because the people and the issues are common, so I can talk to somebody at [another] tribunal and share certain things. And we have, in some way, we have a common culture and they'll understand exactly what I'm talking about, and what the issues are, and so forth. (95) We have a lot of contact with [our counterparts at the other tribunals]. Because you know they are the same people. We know them. So it's very easy for us to be in contact with them and to check what is their own program, how we can improve our program, how they can improve their program, etc. There is a lot of exchange.... You know it is very easy like this to be in contact with people because we know each other, especially people who are working for a long time. It's the same people. ICC, ICTR, Lebanon tribunal within The Hague, Sierra Leone, some of the trial was in The Hague. Yes, it's the same people. A lot of people are moving between...