As Iraqis follow the trial of Saddam Hussein in their news media, they are witnessing something that is unfamiliar to them: a trial based on evidence, conducted in an open court.
"It is unprecedented in Iraq. They don't have any experience with this type of court system," says attorney Greg Kehoe, who was an advisor to the special Iraqi tribunal from 2004 to 2005.
He told members of the American Society of International Law at their annual meeting in Washington that Iraqis had lost faith in the judicial process after living under Saddam's secret court system. "The knock would come in the middle of the night," Kehoe said. "An individual - more often than not a male - would be spirited away on some unknown charge, never to be seen from again by the family. And what you had was a trial that began at 10:00 at night with some poor defense attorney that was rousted out of bed, thrown in and told to represent this guy. The trial was over at 2:00, and he was hung at 6:00."
Having lived under such a system for decades, it has been a challenge for Iraqis to regain confidence in their courts. Kehoe says it won't happen overnight. "Their faith in that court system needs to be established not only with this trial, but with a series of trials that take place over time, conducted by Iraqis."
Regaining confidence in the rule of law has also been a challenge for people in countries transitioning to democracy from communist rule. As regional director for the American Bar Association's Central European and Eurasian Law Initiative, known as ABA-CEELI, Robert Lochary has been helping legal professionals in 10 countries to reform their legal systems.
"Traditionally, in these countries the judiciary has been pretty weak," Lochary says. "I think that is common for most countries that are emerging from an authoritarian regime. The judges were used as political tools and they were used to get at the enemies of whoever was in power."
Lochary, a former Colorado prosecutor, says it takes time to make reforms, not because judges are unwilling, but because they are fearful. "There is a long tradition in the places where we work that anyone who takes a risk, who sticks their necks out, gets their heads chopped off," he says. "Sometimes just standing with them and supporting them is the most important work we do."
And it has led to successes of which Lochary is quite proud. He cites a case in Serbia that was tried on behalf of an ethnic Albanian whose house and land were seized and destroyed during the conflict in Kosovo. "And the decision we got was against the Serbian government, and the Serbian government has to make full restitution to that ethnic Albanian," Lochary says. "One of the things I am most proud about is on the panel of judges that decided that case was an ethnic Serbian judge, so it is everything you would want a functioning judiciary to be."
Despite such progress, the Serbian public is still wary. Lochary says opinion polls indicate many people think the judiciary is still weak and corrupt. That's not unusual, according to Mary Greer, director of ABA-CEELI's criminal law program. She says public education is also an important aspect of judicial reform, so "individuals in a country really believe they will have access to their justice system, and that it will matter if they bring a case, and that they will have their day in court and be treated fairly and professionally."
Just as important, says Greer, is educating future legal professionals. To that end, ABA/CEELI runs an exchange program that places American and Western European law professors at universities in countries seeking its help in judicial reform. At the same time, legal scholars from those countries are invited to teach and study in U.S. and Western European law schools. Organizers hope such exchanges will speed the development of functional justice systems in parts of the world that sorely need them.
The American Bar Association has been aiding emerging democracies in reforming their judicial systems since 1990. In addition to the original ABA/CEELI program that began in Central Europe and Eurasia, there are now programs in Africa, Latin America, Asia and the Middle East.