What internationals know: improving the effectiveness of post-conflict justice initiatives. (III. Knowledge and Skills B. ICL through IV. Conclusion, with footnotes and appendices, p. 270-316)

• Published date: 22 March 2015
• Author: Baylis, Elena
• Date: 22 March 2015

B. ICL

As suggested in the chart above, ICL interviewees indicated that the main producer of the knowledge and skills needed to work in ICL was relevant experience as such, not experience in multiple tribunals, nor sometimes even experience in tribunals at all. They did not suggest that they took any particular value from comparative experience in multiple tribunals; rather, they tied progression in their knowledge and skills to their years of experience and the quality of that experience. However, they also did not see tribunal-hopping or other job movement as detrimental to that process; rather, they largely saw it as a matter of indifference as far as skill acquisition was concerned.

Once they acquired relevant skills and knowledge, interviewees saw the transfer of those assets to a new institution as virtually seamless, primarily because of the similarities between international tribunals and the nature of their work activities; however, these questions are more complex for ICL interviewees working in national and hybrid settings. There, local knowledge and relationships gain importance, external knowledge must be contextualized, and transfer and implementation of knowledge and skills is more difficult. Also, ICL institutions benefit from the cultural norm of staying through the end of trials to remain relatively resilient in the face of turnover, but turnover can be a problem in certain contexts.

The first part of this section focuses on skill development and transfer in internationalized tribunals; the second part discusses the effects of location in national settings and work outside the tribunal structure; and the third focuses on additional factors common to all settings.

1. Internationalized Tribunals

a. Litigation Skills

ICL tribunal interviewees repeatedly emphasized the central importance of technical litigation skills to ICL work. (59) In so doing, they consistently indicated those skills could best be initially acquired through domestic practice, not in an ICL tribunal:

 [T]his gets back to the earlier point about what the core work is
                 what the actual fundamental work is.... [A]t the end of the day
                 yeah, these are international crimes, but they're crimes and this
                 is criminal work and it's--the people who really are good at this
                 work are people with criminal law experience, whether as
                 investigators or prosecutors or defense lawyers. (60)
                

Interviewees offered several reasons for this. Although attorneys do of course improve their litigation skills while working at a tribunal, the kinds of cases heard by the tribunals are too grave to allow junior attorneys as much responsibility as would be optimal for their professional development. In addition to the cases' significance, their enormous size and slow development means that junior attorneys cannot get repeated, intensive practice at core litigation skills the way they would working, for example, in a high volume litigation setting. (61)

As such, it is difficult for interns and attorneys who join tribunals without prior litigation experience to learn those skills for the first time at a tribunal. This is the primary reason I identified the litigators category and their patterns of movement as particularly relevant to the issue of knowledge and skill transfer in the first section of this Article. Because members of the litigation group already have significant experience in domestic litigation when they join international tribunals, they are the ones who bring mature litigation skills to the tribunals.

Once litigation skills are acquired, interviewees reported that they can be transferred readily into tribunals from domestic systems and from one tribunal to another by litigators and by career PCJ professionals. They did not express any concerns about the speed of movement between tribunals as affecting this skill transfer. (62)

One important reason for this high transferability is that the tribunals are relatively similar to each other in their structure and procedures. It is not that there are no adjustments to be made, of course. Each court has some procedural and other differences that have to be learned upon transition, and there are also differences between domestic and international litigation styles and processes. But nonetheless, when interviewees spoke about the tribunals, their judgment was overwhelmingly that they were in many ways very much alike:

 Well clearly, they've all got their own little unique twists in how
                 things are done, and how issues are approached given the rules, and
                 what not. Yeah, there are clearly differences between the different
                 tribunals. But notwithstanding that, I still think there is a huge
                 degree of similarity and overlap, just in terms of the approaches
                 and in terms of that the issues and types of issues that we face
                 just given the difficulty of doing these types of cases. So even
                 though the procedural framework is slightly different in all the
                 courts, the practical work we actually do is quite similar. And
                 that's another reason I think that there's--quite often people move
                 from one court to another. (63)
                

These observations resonate across the skills identified by ICL interviewees working in internationalized tribunals. They viewed their skills as highly and immediately transferable with minimal adaptation. They expressed no concerns about any negative effects of rapid circulation amongst tribunals by the fast-moving justice junkie category as far as knowledge and skill transfer was concerned. And they attributed this ease of transfer primarily to the similarity of the tribunal settings.

b. Other ICL Skills

Unlike litigation skills, acquiring legal knowledge of ICL does not require experience, just study; but it seems to be equally unaffected by job movement. While it is useful to have learned ICL norms and rules in school, it is also plausible to learn them while on the job at any tribunal or ICL-related institution, if one does not already have the knowledge. It is also for the most part the same legal knowledge that is needed from one tribunal to the next, so this information can also be readily used in a new work context. (64)

In order to work effectively in an international tribunal, ICL internationals also need two other, less concrete sets of knowledge and skills. One is a set of relational skills: a sense of cosmopolitan flexibility, cultural sensitivity, and what is often called "people skills." Internationals need to be flexible in adapting to international tribunal processes rather than clinging to domestic processes as a model. Similarly, one needs to deploy cultural sensitivity and people skills to work successfully with a diverse set of international co-workers from numerous legal backgrounds. This experience could come from a tribunal or from any other international settings. (65)

The other skill often mentioned by interviewees was one that was specific to tribunals as a type of institution, although not to any particular tribunal: an understanding of tribunals' bureaucracy, policies, and processes, including the timeline of the trial process.

 [I]t's just the cognizance of how proceedings tend to play out. I
                 was able to anticipate how long a witness would be. Hey, do we need
                 to get another witness here? Who to talk to. Okay, if I want to
                 know that estimate, talk to that person. These proceedings are kind
                 of a unique beast, and the more you work with them, I guess the
                 more familiar you are with what's likely to happen and you know who
                 to ask.... [K]nowing the proceedings and the players a bit
                 better to allow me to anticipate and act accordingly.... And
                 also to just understand the dynamic of the personalities, how the
                 judges want to be treated, how the parties want their information
                 that sort of stuff. (66)
                

By their nature, both of these skills are also readily transferable from one workplace to another, in no small part because of the similarities between the tribunals as work settings discussed above.

Apart from contributing to an attitude of cosmopolitan flexibility, job movement seemed to promote the development of new ICL skills only when particular circumstances arose that prevented interviewees from getting the desired experience in their initial position. For example, one of the structural reasons for movement between jobs discussed in the section above is a systematic lack of opportunities for advancement. By this, people did not solely mean promotions, but also opportunities for professional development. In such instances, by moving to a new job they can develop new information and skills. (67)

But while job movement may not promote the development of skills as such, interviewees consistently expressed the view that each of these categories of knowledge and skills was readily transferable from one tribunal to another and could be integrated into the new setting relatively quickly. In contrast to ROL interviewees (as discussed below), ICL interviewees viewed this process as straightforward and unproblematic, at least as concerns the internationalized tribunals (as opposed to work in national settings, also discussed below). (68)

The primary reason interviewees offered for this was the similarity of the tribunal settings and procedures, as discussed above. The other was the common culture and people they found from one tribunal to the next. In part because there is considerable circulation amongst tribunals, internationals found the same types of people (and indeed sometimes the very same individuals) and shared attitudes and expectations as they moved from tribunal to tribunal, making it easier for them to integrate themselves and their knowledge into the new work setting. Of course, interviewees referenced some differences in culture and composition of personnel between the tribunals, but these differences are relatively slight as compared to the incredible differences...