EWJ FEB 59 2025 web - Flipbook - Page 63
Naturally, there are specific issues that one encounters
when attempting to translate cultural idiosyncrasies in
a different cultural idiom, especially in a legal context.
Some of these issues have been unpacked and analysed by various disciplines, including anthropology,
philosophy, and comparative legal studies. Facing
these issues, CO experts may adopt approaches from
one of more of these disciplines. Yet, regardless of the
specificities which characterise each expert, it is vital
that CO witnesses retain what could be referred to as
an ‘empathetic’ approach.
In light of this clarification, it is important to stress that
the strength of the written report that is compiled by
the CO experts does not stem from their authority.
Rather, the effectiveness of these reports comes from
the capacity of the experts to be cultural mediators. It
stems from the ability to provide understandable explanations of local phenomena that at first might seem
un-understandable or even invisible. Crucially, this aspect bears a significance that extends beyond the specific case of the asylum claim with which the expert is
involved. More specifically, the work of the CO
expert has broader implications, some of which are
distinctively political.
In contrast to more ‘externalist’ perspectives - according to which one can evaluate other cultures from an
external point of view - an empathetic approach is
based on the idea that cultural practices follow an internal, local logic. One that often requires observers
to empathise with other cultural expressions and even
rethink their own social categories and perceptions.
Naturally, this does not mean to say that experts
should suspend their judgment (which might be negative in case of practices that appear to be oppressive
or violent). Ultimately, there is a difference between
agreeing and understanding (and being aware of that
difference is key to the quality of the CO expert’s opinion). Rather, this means that experts should approach
the phenomena they are called to evaluate with an
open, empathetic mind, and then, in the same empathetic vein, they should present their analysis in a way
that is understandable to the judge and the people
involved in the proceedings.
The first of such implications is international in
nature. Normally, nation states do not appreciate their
citizens to be recognised as refugees, as this may imply
the state’s responsibility in the violation of its citizen’s
fundamental rights. It can also imply lack of willingness
or capacity on the part of the state to prevent such violation. This may be regarded as shameful and may attract international political criticism. Hence, in a way,
the work of the CO expert is always embedded in a network of wider international relationships. Though experts are supposed to stay as much as possible neutral
and objective in the formulation of their opinions, it is
important that they are aware of these wider dynamics.
Secondly, the figure of the CO expert has political
implications that are domestic in nature. International
asylum law provides an exception to the rule that
sovereign states have the prerogative to establish conditions for the lawful entry and stay of foreigners on
their territory. Therefore, while it is true that judges
are called to act independently from politics, it is also
true that judicial decisions on matters of asylum have
the potential to indirectly affect local political determinations concerning the number and the characteristics of migrants that can lawfully enter and remain
within the state’s borders. The information provided
by the expert, therefore, may have an effect, big or
small, on the domestic affairs of a nation state. This is
particularly true in the case of a common law system
based on precedents. Once again, it is crucial that experts are conscious of this dimension, though this
should not influence their opinion.
From a practical point of view, this means that in their
reports CO experts cannot take anything for granted.
The information they provide has to be conveyed
using what anthropologist Clifford Geertz (and
philosopher Gilbert Ryle before him) famously referred to as ‘thick description’:3 a rich and detailed but also vivid and clear - presentation of the materials
aimed at illuminating the most complex aspects of the
phenomenon at hand.
Significantly, this means that often, in order to explain
a particular case or situation, CO experts have to move
between different topics and domains. In some geographical contexts, for instance, religion and politics
are deeply intertwined and rather than uncritically assuming a Western perspective - which would entail the
separation of these two spheres - the expert has to convey this inextricable relation. In many cases, this particular aspect proves crucial in the understanding and
in the analysis of specific forms of persecution or
discrimination that might otherwise be invisible.
Doubtless, as with any other expert, the judge has the
last word on the admissibility of the evidence provided
by the CO expert. Furthermore, given that often CO
expert witnesses are chosen and instructed by one of
the parties, the role of the expert is deeply intertwined
with that of the lawyers involved in the asylum claim.
Lawyers and their teams provide all the relevant material on the case, and frame specific questions to the
expert. They too, therefore, have an important role
to play with regards to the admissibility of the expert
evidence. Nonetheless, the contribution of CO experts
remains fundamentally unique.
In some contexts, individual religious beliefs - a
domain that might appear to pertain to the private
sphere - are as much a private matter as a public one.
These beliefs might be tied to family reputation
and social status, and, as such, they might place
individuals in situations where they are persecuted or
ill treated. Similarly, in some settings tribal dynamics
might be more socially relevant than state dynamics,
and in order to grasp certain forms of persecution one
has to unpack this multilayered social dimension, showing that notions such as ‘individual’, ‘ family’ or ‘state’
might mean different things in different contexts.
EXPERT WITNESS JOURNAL
Ultimately, at the cost of sounding pretentious, one
might argue that the presence of these figures as cultural mediators sheds light on the very nature and on
the innermost character of the law: its being not only
a system of rules, but an inextricable set of norms and
interpretations of such norms which are always
framed according to specific cultural criteria. These
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