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staff reporter Washington-After decades under Saddam Hussein, the Iraqi legal profession fell into disrepair and disrepute. Rebuilding it is one critical step among many, experts say, in creating an independent legal system. “Saddam totally subverted the judicial system,” said Sermid Al-Sarraf, an Arab-American solo practitioner in Los Angeles. “He had all courts reporting to the Ministry of Justice, an executive authority. He divided and subdivided courts. The security forces had their own courts. The military had their own courts, and they all reported to him. Checks and balances were totally eliminated.” The task will require identifying lawyers and judges who should not participate in the post-Hussein era because of their complicity in the regime’s crimes and retraining those who can and should play a role. It will mean stripping civil and penal codes of laws designed to oppress. It will mean drafting a constitution. The job has been consuming former Iraqi jurists, exiled lawyers and Arab-American lawyers like Al-Sarraf and Feisal Istrabadi, who, over nearly a year, have spent hundreds of hours working with the U.S. departments of State and Justice on projects preparing for transitional justice in Iraq. Istrabadi of Boesch & Istrabadi in Valparaiso, Ind., said, “Those of us who have advocated for military intervention and who have argued that democracy is possible in Iraq-I think we’ve assumed a duty, not necessarily to return to Iraq permanently, but for a time to help.” Nongovernmental organizations and other groups interested in judicial rebuilding include the Council on Foreign Relations, the American Bar Association (ABA) and the International Center for Transitional Justice. Directly responsible for one legal blueprint is the Bush administration’s Future of Iraq Project. Its plan is in a 700-plus-page road map of possible judicial reforms that is to be released soon. It has not been made public officially, but members of the group described some of its contents in interviews. Some of those involved are worried that the plan may be pushed aside if the Pentagon continues its pre-eminent role in Iraq. Others say that it’s problematical for the United States to be planning for an Iraqi system of law. Roots of law The most successful programs to bring the rule of law to former dictatorships, said Paul van Zyl, the director for country programs at the International Center for Transitional Justice, have been deeply rooted in, or “owned,” by the local citizenry. Of the Bush administration planners, he said, “They were convened by the State Department, which immediately colors their activity. There is no substitute for getting local feedback and a local buy-in.” Efforts to rebuild other countries’ judicial systems haven’t always been successful, said Thomas Carruthers, director of the democracy and rule of law project at the Carnegie Endowment for International Peace. “The judicial culture of a country is something that runs very deep,” he said. “If it has been corrupted or ruined by politicians, it is not rebuilt quickly. Judicial independence, respect for the judiciary, knowing how judges should behave-it’s not something you do overnight.” A frequent problem, he said, is that newly empowered politicians want to rush new laws into place and see independent judges as obstructionist. Court and judicial personnel are a major problem, he said. Retraining has not proven to be very effective, he said. However, “If you hire new people, you’re then faced with a bunch of young people who do not know what they’re doing. “It’s expensive to get new people, and usually these governments are strapped for money, and it’s hard to make the argument you should put money into the judiciary right away.” Moreover, countries tend to view their judicial systems as unique repositories of national culture that shouldn’t be changed much, he said. “There are very sensitive issues,” he said. “Lots of Arab countries are having trouble figuring out the role of Islam in family law, for example. Why should it be any easier in Iraq than in Egypt? We shouldn’t expect that in three years there will be a shiny, Iraqi judiciary handing out lots of new opinions.” Still, he said, Iraq, with more capable lawyers and judges than many other countries, has a better chance of success. “You have to find the best people in the Iraqi legal world and put them in the driver’s seat but offer them the benefits of international legal experience,” he said. “They will rebuild their legal system.” A.E. Dick Howard of the University of Virginia School of Law said that a constitution, no matter how well written, must be capable of enforcement even against elected majorities. “That means a constitutional court and judges sufficiently independent to stand up to pressure,” he said. “And in the chaos of present-day Iraq, that could be physical threats. Will the circumstances permit them to be independent as judges?” Judicial independence is critical in the soon-to-be-released recommendations by the Working Group on Transitional Justice, which is part of the Future of Iraq Project. The State Department launched the project last July. The group includes Iraqi-Americans, Iraqi Europeans and members of the Iraqi Jurists Association-about 40 in all. Iraq’s system The present Iraqi court system consists of courts supervised by the Ministry of Justice and other tribunals affiliated with other executive agencies. Under the Ministry of Justice are departments of: Civil courts. Courts of Personal Status, governing Muslims’ marriage, family and inheritance law. Criminal courts. Each of those departments has courts of first instance, appellate courts and a highest court, called the Court of Cassation. Courts outside of the Ministry of Justice include national security courts; magistrates’ courts for criminal matters except capital cases; juvenile courts; military courts; a court of inquiry for minor criminal matters; and municipal courts. There are no juries in the criminal courts. The working group is recommending the creation of a judicial council at the top of the system during the transition period, with members not appointed by the interim political authorities. “One thought was to have a convention of Iraqi jurists who would set qualifications for the council,” said Al-Sarraf, the Los Angeles lawyer and a member of the group. “The jurists themselves would elect those to sit on the judicial council. The idea would be for the council to have its own budget so it would not be beholden to an executive authority.” The group says a vetting process for new judges should begin immediately. “Obviously during this transition time, life goes on and you need a court system to deal with that,” said Al-Sarraf. “The estimate is that no more than half of the existing sitting judges would be incapable of continuing in a new system. That leaves the remaining half that needs a careful vetting.” Also recommended for the transition period is a court staffed by Iraqi jurists but with assistance from international experts to prosecute war crimes and crimes against the Iraqi people. The main victims of the Hussein regime were Iraqis. Al-Sarraf and others said that denying that prosecution to the Iraqi judiciary would undermine public confidence in the judiciary and the law. Van Zyl of the International Center, which is assisting about 20 countries in dealing with mass atrocities, is skeptical about a fully Iraqi court. “Are you confident, given the nature of Hussein’s rule over the past 25 years, you will be able to find impartial jurists, prosecutors and detectives that you can cull from the system and who will operate within a due process framework and be sympathetic from a human rights perspective?” he asked. “Can we get there in the long term? Yes, but not right away.” He suggests a mixture of Iraqis and foreign jurists. The “absolutely wrong way” would be for the United States to set up courts to try these crimes, which would smack of “victor’s justice,” he said. Iraqi laws are not as much of an immediate problem as the judicial structure and personnel, said a number of Iraqi legal experts. The main sources of Iraqi law are Islamic law, constitutional law and legislation and statutory law. “Iraq has a legal tradition that predates Saddam,” said Al-Sarraf. “While the codes may not be up to date, they’re workable within the transitional period. Ultimately it will be up to the Iraqi people to decide how the codes should be shaped.” The working group is urging that laws that violate human rights on their face should be eliminated at once. The group isolated those provisions in the penal, military, immigration and nationality and other codes. The group’s recommendations will address such things as the rights of the accused and how to provide defense counsel earlier than at trial, which is the practice today. Iraq has an inquisitorial, not adversarial, process. Istrabadi and others believe a major obstacle to judicial reform is the caliber of the Iraqi legal profession. “The education Iraqi lawyers received in the last 25 years is not on a par with the legal education in countries where there is a true legal profession,” he said. “You have a lawless country in which the rule of law means nothing. How can you expect from that state of affairs to truly have a profession arise? This is going to take a generation to rebuild.” Three phases Iraq’s reconstruction is planned to take place in three phases: the stabilizing phase, the transition to democracy phase and the transformation phase in which Iraq will adopt a constitution. The ABA hopes to contribute its experience of building judicial systems and is putting the final touches on a proposal to get involved, said President A.P. Carlton. Roberta Cooper Ramo of Albuquerque, N.M.’s Modrall, Sperling, Roehl, Harris & Sisk heads the ABA’s Afghanistan legal reform project. “The ABA basically only works with in-country partners,” she said. “We never drop ourselves in and say we’re going to tell you what to do. We only come as invited.” A nation, she said, can’t wait to have a legal system. “You want a transitional legal system during which you figure out what your government and rule of law will be.” Istrabadi and others worry that judicial and other institutional reforms will be more difficult because of Iraqi post-war disillusionment with the lack of food and services, lawlessness and the looting of antiquities. “This is not a population predisposed to embracing the U.S. It would have 12 years ago, but that ship has sailed,” said Istrabadi, referring to the U.S.’s failure to support, after encouraging, the Iraqis’ rebellion in 1991. “Now we have to earn the trust of the people of Iraq.” Coyle’s e-mail address is

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