Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
A 2015 report written by Alex Batesmith titled ‘Improving the Effectiveness of International Lawyers in Rule of Law and Transitional Justice Projects’ is one of the best we’ve read all year. Published by the Transitional Justice Institute at Ulster University, this short publication provides practical advice and explains why training attorneys on cross-cultural skills are critical for those working on transitional justice and rule of law. Check out excerpts below!
Successful transitional justice or rule of law interventions depend on positive interactions and strong relationships – yet few organisations provide guidance on how such interpersonal relations in international settings can be optimised. It is at the individual level where lawyers can make an immediate difference to the project, and we argue that the concept of intercultural effectiveness is particularly helpful for transitional justice and rule of law projects.
Intercultural effectiveness, also known as cultural competence or cross-cultural intelligence, has been extensively used and discussed across a broad range of disciplines and professions. Various models have been created to measure intercultural effectiveness, and there are many organisations and institutions across the world promoting their courses on the subject. One particularly useful method comes from Canada’s Department of Foreign Affairs, Trade and Development, and their Centre for Intercultural Learning (CIL). In 2001, CIL produced their seminal paper A Profile of the Interculturally Effective Person. The Profile lists nine ‘major competencies’ of intercultural effectiveness focusing on both the personal and inter-personal qualities of a culturally effective person. These are further broken down into additional core competencies and observable behavioural indicators.
Cross-Cultural Training in Domestic Contexts
Domestic legal practice has only relatively recently recognised the need for and embraced the concept of intercultural effectiveness – and chiefly in the United States. The arguments for increasing a domestic lawyer’s personal intercultural effectiveness generally focus on the realities of an increasingly multicultural society: the need to understand one’s client, to relate to a jury, and to interact appropriately with a witness. The dangers of ethnocentrism become even more pronounced – and the potential consequences even more damaging – for lawyers working in an international development or transitional justice setting. Somewhat surprisingly, there has been nothing written previously on the subject of intercultural effectiveness relative to the international legal fields of rule of law and transitional justice.
The Importance of Focusing on Cross-Cultural Intelligence
Rule of law and transitional justice interventions occur in conflict, post-conflict and other hazardous or difficult locations. Severe and sometimes unexpected environmental challenges – whether practical, political, economic or social – can seriously compromise the goals and effectiveness of any mission. The way in which organisations are structured and how their staff are managed to help them cope with the challenges of a different cultural environment are certainly areas that can influence the success of the project, for better or for worse.
The importance of Pre-Deployment Briefings
Few if any international organisations hiring lawyers for their overseas projects give their new staff any meaningful pre-deployment briefing. Human resource management has been flagged as a troublesome area for international intervention. Appropriately qualified professionals must be selected, given specific initial and ongoing training and properly managed throughout. However, some organisations, especially in the transitional justice sphere, offer contracts of very limited duration. Many organisations fail to offer them in-country ongoing training in areas that will enhance their effectiveness. Finally, if key management personnel are themselves interculturally ineffective – whether they are based in the host country or at headquarters – then the project is also likely to suffer. Inevitably some international lawyers may be insufficiently prepared for the challenges of their work.
How Qualities of a Good Lawyer Varies from Country to Country
What makes an effective lawyer in the domestic setting does not necessarily make them effective internationally. Attributes such as single-mindedness and tenacity, being a tough negotiator and having a confident, theatrical formal advocacy style may be well respected in Manchester or Paris, but transplant them to a rule of law or transitional justice project in Mombasa or Phnom Penh and the reaction may not be so favourable. Western lawyers, even those from a continental civil law background, are trained to be adversarial and direct. However, lawyers working on rule of law and transitional justice projects are likely to need rather more collaborative skills, as seen in the field of international development.
International Lawyers Require More Knowledge of the Local Context
One of the most commonly heard criticisms of some international lawyers is their poor knowledge of the local context. A lack of deep understanding of the local situation can result in ‘critical errors in judgment based on cultural, legal, historical or other misunderstandings’. Poor understanding of the local culture may result in unintended insensitivity. A lack of knowledge of basic greetings in the local language, or basic comprehension of the political situation, may potentially alienate the national counterpart lawyers or the wider community in which the internationals operate. An incurious attitude towards the new environment may also result, as one of the surveyed lawyers suggested, in counterpart national lawyers being reduced to ‘tour guides to international rule of law tourists’ – meaning that the under-used national lawyers may feel disempowered, demoralised and as a result disinclined to promote change – to the obvious detriment of the project.
Strategies to Learn about Local Context
In terms of intercultural effectiveness, learning about a country and the relevant context should be seen as a process, which starts before deployment and continues throughout the assignment. Interculturally effective people are curious about their hosts and strive to develop a deeper knowledge of their new environment – through investing time and effort in attempting to understand different social groups, local structures, history and traditions from a variety of sources. International lawyers should also seek to understand how the law and the institutions of justice are viewed in the host country. In many developing countries judges, lawyers and the courts are not afforded the same respect or position as they are in the west.
International lawyers need to understand how law and its institutions function and how they are viewed by civil society, by the government and by the local media. As one senior international consultant expressed it, a failure to comprehend what people understand by ‘law’ in the host country is often at the root of the indifferent success of many international projects.
Take the time to Understand Customary Law – Even if It’s Uncomfortable & Unfamiliar
Neglecting to take the time to understand customary or traditional law has been highlighted as another major problem for rule of law projects. International lawyers naturally fall back on the systems of law with which they are familiar, and few will have spent their formative career in countries where traditional law co-exists with the formal justice system. As a result, rule of law projects may exclusively focus on (the sometimes dysfunctional) formal judicial mechanisms of a post-conflict environment without balanced attention to the places ordinary people go to settle their social, domestic or economic affairs such as informal dispute resolution mechanisms at the village level.
Learning to Communicate Through Interpreters & Becoming a Team Player
It is unlikely that many international lawyers will be fluent in the local language, although developing the specific skill of communicating through interpreters will always be valuable.
Lawyers in the west and global north, especially those working in the justice sector, are admired for their independence and self-reliance. For the most part, trial advocates work individually, devising and implementing the strategy for each individual case independently. Although rule of law and transitional justice vacancies may call for candidates to be team players, even the most senior domestic lawyers may have had little experience working in teams, and even less in multi-cultural teams with professionals whose legal training may be very different from their own. Many highlighted the problems caused by some internationals arriving at the project with unhelpful attitudes. As one respondent expressed it, those western lawyers with highly deadline-driven, ‘type A’ personalities ‘need to relax and not place so much emphasis on getting everything done in the shortest space of time.’ Another rule of law consultant described how he had often observed foreign lawyers conducting meetings with national lawyers as they would do in a law firm boardroom back home, where dominant behaviour and the robust challenging of ideas is often accepted and admired.’
A failure to listen to local stakeholders means law-focused aid ‘remains ethnocentric, self-referential, neo-colonial and possibly destructive’.
Work on Understanding the Educational and Professional Reality of Lawyers
Additionally, in order to work effectively with their national counterparts, internationals should cultivate an understanding of the educational and professional reality for lawyers. This includes an understanding of the state of legal education in the host country. In some post-conflict and developing countries, university law curricula can be out of date or poorly funded. In others, continuing professional development for lawyers, prosecutors and judges can be patchy or even non-existent. One of the most challenging aspects of working in a developing legal system is the persistent and perennial problem of systemic corruption in the institutions of justice. Internationals may well find themselves working alongside national counterparts who are exposed to or engage in conduct that is unprofessional or lacking in integrity. The international lawyer will usually, but not always, receive some guidance from his or her employer on how to react to this. In any event, he or she should also always seek to understand how the relevant legal and political institutions function in practice.
Understanding the Local Culture
Knowing the host country and culture will inform the way in which the international can reflect on how his or her personal preferences, characteristics, strengths and weaknesses.
One example came from an international lawyer who quickly realised that his direct, adversarial approach from over 25 years of work in a western legal system would not be appropriate for a rule of law training programme in South-East Asia, and adapted his own style accordingly, although in other parts of the world he felt that his native style would have been acceptable. In an international setting where intercultural relationships are crucial to the success of the project, the self aware lawyer actually increases the chances of the project being more sustainable by being able to understand and anticipate issues of cultural misunderstanding.
5 Core Communication Competencies of the Interculturally Effective Person
The Profile of the Interculturally Effective Person divides intercultural communication into five individual ‘core competencies’:
Undoubtedly, all these skills would enhance the profile of the international lawyer working on a rule of law and transitional justice project.
Western Attorneys Must Learn to Listen & Seek Collaborative Working Relationships
When lawyers undertake legal development work in another country, how they interact and communicate with their counterparts and with others in the host country will have a considerable impact on the success of the project. Effective listening is a critical skill for international lawyers, but one that may not be particularly developed from their domestic practice. As one respondent put it: It’s a matter of listening, and understanding one’s role as an international lawyer. One of the problems is that lawyers are all egoists. Your role as an international lawyer is to support the locals, listen to them and explain ideas in a way that is not saying ‘I think, I suggest we do that’
Seeking collaborative working relationships and promoting mutual understanding of the methodology and main project goals will certainly improve both the working environment and the relationships within it. Most international lawyers will say that efforts to understand and use the local language and to participate in local cultural events is recognised and appreciated by their national counterparts. It may take some time, but learning another culture will enable the international lawyer to better understand the subtleties of communication in the host country. This can only be beneficial for forming strong intercultural relationships that are so important in post-conflict and transitional environments.
Relationship Building Skills Are Critical
Good relationship building skills are central to any collaborative project. Lawyers working on rule of law and transitional justice projects will almost invariably be working in groups, often with extremely varied roles, interests and positions within the hierarchy. The manner in which an international lawyer relates to local colleagues, both at and outside work, will determine the level of confidence and trust reposed in them. One international lawyer spoken to for this paper talks of the importance of ‘frontloading’ the relationship between national and international colleagues. In other words, spending time at the outset to establish good working practices and to develop channels for open communication in the event of disagreements. Knowing how the host culture processes information, and recognising the different working habits, will ensure all team members have a common understanding of the project objectives and how these will be achieved.
Another international lawyer spoke of the need to create an environment in which national lawyers feel free to speak and share their ideas and advice on an equal footing with foreign lawyers: We must ensure that we don’t patronise national lawyers, rather that we show how much we value them. This comes back to appreciating where they’ve come from. Establishing a personal rapport outside the workplace can be equally important for the international lawyer. Retreating to the cultural safety of a gated community with familiar home comforts will reinforce the neo-colonial stereotype and be counterproductive for internationals looking to improve their relationships with local colleagues.
Adapting the CIL ‘behavioural indicators’ of relationship building, whether this is attending cultural or community events, demonstrating a capacity to initiate conversations with locals or being aware of the different social protocols in the host country, international lawyers too can take steps to ensure their personal interactions are culturally appropriate.
Develop Organisational Skills Specific to Intercultural Environments
Another reason why overseas projects can be so disorientating for international lawyers is that the organisational culture, structure and processes may be very different from what they are used to at home. Of most relevance to international lawyers working in rule of law and transitional justice are the abilities of: effective networking in order to identify and understand the key stakeholders; synthesising a variety of organisational cultures and practices within a team in a manner that encourages open discussion; maintaining a focus on the project goals whilst managing any organisational resistance; assessing competing forces within an institution; and operating on a different level of resources and support than they may be accustomed to in their home country.
Whilst international lawyers may sometimes (but not always) have a better grasp of internationally applicable human rights treaties and standards, local lawyers will have a distinct advantage when it comes to the domestic laws and institutions and how they are applied, and the language, culture and history of their home country. In order to work successfully, an interculturally effective lawyer will need to develop a sophisticated organisational culture in which the varied strengths of individual team members are both harnessed and shared. This can be extremely challenging, especially when attempting to balance the short-term project goals with longer-term capacity building objectives.
Finally, as one senior international lawyer observed, organisational cooperation can only be achieved when both national and international lawyers in the team are motivated to serve the same purpose and goal.
Be Realistic About What Can & Can’t Change
Being realistic in terms of what can be achieved, both individually and for the project, is a particularly useful attitude to adopt when working overseas. As one respondent said, The most important thing when going into a situation is understanding how you can and you can’t help. Lawyers in their daily domestic practice are used to understanding everything down to the last detail: they master the facts of their case, ensure they know the law and are totally familiar with the court and its procedure. Understanding one’s own society and its values is also taken for granted. Transplanted to another country, a lawyer will be faced with many uncertainties – not just in their working environment, but also in virtually every aspect of the culture. As one respondent expressed it, The first thing a lawyer needs to do when working internationally is to understand that they don’t know what is going on, and they have no chance of knowing it in the full depth they’re used to. International lawyers therefore need to recognise this lack of knowledge and adapt their attitudes accordingly – in other words, to become more comfortable with the idea of not being fully in control of both the immediate working environment and the wider cultural surroundings.
Recommendations for Rule of Law & Transitional Justice Organizations