Guidance for International Rule of Law Consultants and Advisors

Lesson One: Thorough preparation is key to project success

Committing to a new project, I begin preparing as early as possible. I build a basic understanding of the framework of government and the relationships between its various powers. I read a history of the host country. I always examine the latest version of its constitution, paying particular attention to the articles dealing with the judiciary, courts, prosecution, judicial independence, and jurist selection and tenure. I also review the enabling legislation that establishes the authority and jurisdiction of the framework of courts. I check the relevant procedural and substantive civil and criminal codes available in English. The Internet provides extraordinary access to constitutions, codes, specific laws and regulations, judicial selection, country governance, government reports, NGO research, and more, often in English translations.

Careful preparation is mandatory. Savvy local officials typically can gauge your level of preparation and understanding within the first 15 minutes of your first meeting. My rule of thumb is that I will be taken only as seriously by my hosts as I have taken my preparation. Your status and title may be of value in achieving access, but host country officials are hard-working and frequently harried. They prefer working with outsiders who have carefully prepared and crafted intelligent and probing questions to quickly target areas and topics their projects were designed to address. They are more likely to cooperate with you if assured that you appreciate constraints on their availability, care about their country and culture, are not there to boast about your own system, and avoid critiquing their work without understanding the constraints under which they are obliged to operate.

I have accompanied some visiting U.S. judges in meetings who are very well prepared; I have accompanied others whose limited preparation quickly surfaces. As their host-country illiteracy is exposed, their credibility quickly disperses, and it rarely recovers. When I agreed to assess government collusion in illegal wildlife trafficking, I recognized that being perceived as credible by my Vietnamese Communist hosts would entail significant preparation to ensure I was in command of facts, figures, and knowledge of the criminal legal corpus governing wildlife administration. This would include familiarity with relevant agency roles in enforcement, monitoring, investigation, and prosecution. I spent 25 days preparing for the wildlife trafficking project, studying laws, court decisions, NGO reports, INTERPOL investigations, etc. Once on the ground, I asked U.S. embassy staff to set up meetings with senior officials of numerous government ministries and bureaus.

When I encounter difficulty finding key source materials I need to prepare for a particular assignment, I don’t hesitate to contact embassy, USAID, or other officials on the ground in the host country in advance and request that they electronically transmit those materials.

Lesson Two: Be gracious and respectful in interactions with host staff and educational program participants

As a matter of protocol, it’s best to avoid delivering lectures and exhibiting attitudes that may be perceived as patronizing, judgmental, remonstrative, or condescending. If you encounter grossly inefficient practices or procedures, be discrete in your criticisms and always avoid ridicule. Many systems have a longstanding tradition of tasking chief judges with exclusive responsibility for court administration, a function for which some are ill prepared or otherwise overworked; while in office, they may perpetuate archaic and inefficient practices and operations. Addressing them in a diplomatic and helpful manner without condemnation or censure is key. Suggesting alternatives that are relatively straightforward to implement and offer efficiency gains often sparks interest and commitment. Upon entering the public service reception area of a first-instance trial court in Sofia in 1993, I straightway noticed large softcore pornography posters of semi-nude women on the walls. I discretely brought up the matter in a private meeting with the chief judge who was unaware and surprised. On her own, she assured me she would address the issue. The following morning those walls were bare.

The same discretion applies to interactions with invitees in a seminar setting. Our small China seminar instructional team included a U.S. judge with broad experience in the Orient. During his final presentation for reasons I still fail to comprehend, he launched a fusillade of criticisms, reproaching the Chinese judges for ignoring human rights violations, complicity in persecuting the media, and stifling dissent by condoning government brutality. After ten minutes of these gratuitous reprovals, a prominent Chinese judge rose angrily from the audience and interrupted him. He accused the U.S. judge of ignorance of the onerous conditions under which the Chinese judiciary is expected to carry out its work. He cited examples of how western justice systems exploit and mistreat racial minorities, illegal migrants, and the disadvantaged poor, imprisoning them more frequently and for lengthier terms than wealthy litigants. He reproached our judge for hypocrisy and impropriety. His reprimand was embarrassing, humiliating, but, in my judgment, not unwarranted given the generosity, respect, and deference with which our Chinese hosts had treated us. I later privately apologized privately to the offended judge and asked him to convey my regrets to his colleagues.

Lesson Three: If your access to sources is constrained, speak up

Shortly after I agreed to join the Republic of Liberia assessment team, the U.S. Embassy mandated our investigation would be confined to the capital, Monrovia. Roving bands of violent militia and brutal guerillas made traveling in backcountry too dangerous. I objected that such constraints would impede our work and result in an inferior assessment, something with which I refused to be associated. Team members concurred, and the ambassador agreed to explore options. Two weeks later, the United Nations Mission in Liberia (UNMIL) offered to shuttle us to five cities, one coastal and four deep in the bush. We would board aging U.N. helicopters provided by Ukraine and piloted by Russian crews. Armed U.N. International Police would accompany us while on the ground; driving through one remote primitive village, we noticed Osama bin Laden t-shirts on sale.

Once in the backcountry, we toured bombed-out police stations and jails, inspected burned and pillaged courthouses, met juvenile jail detainees confined under frighteningly subhuman conditions, and discussed working conditions with beleaguered judges and administrators in courts without furniture, typewriters, file folders, fuel for court motor bikes, or paper. Court and prosecution field personnel had not been paid their meager salaries for two years, compelling them to survive on the fees they collected from local subsistence farmers and impoverished tribes. Even in the capital Monrovia, the destructive impact of the civil wars was significant. The Supreme Court’s Palace of Justice had been ransacked, its copper wiring, bathroom sinks and toilets looted, leaving it without electrical power and running water, requiring the justices to climb multiple flights of stairs to their chambers on the top floor every morning. Staff would struggle to carry buckets of water from a nearby well into the structure and up those same stairs. We secured an official meeting with Charles Gyude Bryant, Chairman of the Transitional Government, in his lavish office who after our discussions, graciously invited us to his private residence later that afternoon for hors-d’œuvres, drinks and further discussion on the country’s trials and tribulations. The U.S. Ambassador, whom we promptly notified, joined us.

In some countries I visited, court officials balked at requests for what they considered confidential information. My response was to courteously appeal their decision to the respective chief judges who, on most occasions, were persuaded and directed access be provided. Occasional requests to discuss the resolution of highly sensitive matters in confidence and to exclude them from our formal project report were always honored.

Lesson Four: When traveling to an unfamiliar culture, inform yourself

I always read a country history in advance to learn about the people, their religions, their government, their languages, and their political leadership. When dealing with skeptical or suspicious host officials, for example the holdover Communists administering Bulgaria’s courts, I often divert discussions of substantive matters and first inquire about the host country’s history, culture, religion, national heroes, etc., building rapport and trust before turning to project substance.

In Abu Dhabi, one of my senior team members was a very reserved Lebanese lawyer and former judge. Friendship overtures were quietly ignored. I knew most Lebanese were either Muslim or Christian, but that around 5% belonged to a unique faith known as the Druze, an Abrahamic monotheistic religion whose rich and inimitable theology has its sources in Gnosticism, Zoroastrianism, Buddhism, Hinduism, Pythagoreanism, and Christianity. When it occurred to me to inquire whether he had any Druze friends, he expressed pleasant surprise. Warming up to me, he explained that he was Druze and asked how I knew of the religion, having long assumed that Americans are predominantly Christians and uninterested in other religions. Among other unusual practices, he explained that it is impossible to convert to the Druze religion. The only avenue to membership is to be the offspring of an existing member. We became good friends and occasionally met for dinner after work and once at his home with his wife, a Lebanese judge, during my year in the emirate.

Lesson Five: When appropriate, share relevant personal information

As noted earlier, a particularly challenging project was to deliver a rigorous two-week training curriculum in 2004 for several groups of 50 senior Iraqi judges at the CEELI Institute in Prague on the topic of judging in a democratic society. Each of the four instructors was assigned a group of 12–13 judges to shepherd throughout the two weeks. Roughly a year earlier, the U.S. military invaded the Republic of Iraq, and the misinformed and ruinous destruction of the Iraqi nation and population was still raging in 2004. During my first meeting with my small group, I sensed suspicion and mistrust, creating a very poor learning environment.

After lunch and consulting with my Iraqi interpreter who had lived in Prague for many years, I broke with protocol, confided my opposition to the U.S.-led invasion, and apologized to my group for the horrific suffering our military forces were inflicting on the Iraqi people and nation. I then asked each to express in turn how the invasion was adversely affecting them and their families. Each cited the loss of extended family and friends and the attendant anguish. When they finished, the mistrustful mood in our classroom had fundamentally changed. Over the next two weeks we became friends; several presented me their personal Islamic prayer beads, and a senior cassation court judge gave me a bound copy in Arabic of his Ph.D. dissertation. As word of our discussion circulated, judges in other groups asked to be reassigned to mine. Confiding my personal sentiments and regrets, and encouraging them to do the same, made all the difference. I remain in contact with one, a senior Iraqi Cassation Court (Mah. kamat al-Tamyīz) justice, now retired.

Consultants who discern commonalities between themselves and their hosts should consider sharing them as opportunities to deconstruct social and cultural barriers and to facilitate understanding. When discussing court operations, for example, I have learned that my hosts appreciate my exchanging accounts of how I dealt with unexpected or challenging situations and the mistakes I made; doing so often makes it easier for them to share their own court-related quandaries. Where there are significant discrepancies between relative levels of justice/court system resources and development between the consultant’s and the host’s countries, I avoid boasting or gloating. The preferred approach is to briefly summarize, then elaborate if the hosts express interest.

Lesson Six: Extol institutional independence but stress enforceable accountability

In my earliest overseas projects, I engaged judges and justice ministry officials in discussions on judicial independence. Where the host country’s governance framework delegated to the justice ministry responsibility for overseeing the operations and handling the administration of the judicial system, I raised questions about the myriad ways in which senior ministry bureaucrats sworn to execute the policies and priorities of the executive power of government could exert their political power to coerce or influence judicial decision-making. I would argue that the independence of judicial power was more likely to be preserved and uncorrupted in a government in which administration of the judicial power of government, including independent budget authority, was vested in the judiciary itself without second-guessing by justice ministry overseers. In Poland, a deputy minister of justice with a Ph.D. in political theory charged me with being a hopeless disciple of Baron de Montesquieu. In Hungary, the justice minister asked playfully whether he should leave the room during my discussion with the judicial council.

I have continued to argue the superiority of the separation of powers doctrine in which each power (i) administers itself and operates independently of the others but (ii) exercises limited jurisdiction and authority over the others in a manner that ensures a regimen of checks and balances against excesses, aberrations, and government overreach. However, having encountered in my consulting work judicial systems that have attained institutional independence but continue to struggle with internal judicial corruption, my position has evolved to advocate for institutional independence only when anchored with rigorous, built-in accountability, rigorous enforcement, and robust sanction mechanisms. The sacred mantle of judicial authority is a sufficient incentive for many jurists to resist the enticement of opting for corrupt practices. However, the duration of lengthy careers, comparatively modest salaries, the intrinsic frailty of human beings, the residual predisposition of political and judicial power to be corrupted, and the human inclination to deteriorate into groupthink call for establishing enforceable institutional disincentives anchored in an ambiance of accountability. Where institutions are expected to police themselves, inevitably there will be those, including judges, who will seek to thwart and undermine.

In a judicial setting, such disincentives serve to prejudice most judges against engaging in professional misbehavior, such as abuse of power and corruption. Almost all self-respecting judicial systems implement codes of conduct that specify desirable professional judicial behavior and interaction. Such codes generally fall into one of two categories: aspirational ethics codes and disciplinary conduct codes. Aspirational ethics codes encourage model behaviors that invoke the high standards, values, and virtues of the judicial profession, to which those covered by it are encouraged to aspire as a matter of personal motivation. Aspirational codes include no enforcement provisions or sanctions. Disciplinary conduct codes, by contrast, proscribe certain categories of behavior and interaction, and they include enforcement provisions with sanctions for their violation to ensure accountability. Some codes combine aspects of both.

When assessing judicial systems, my reviews typically include the codes that address judicial behavior. Many are aspirational in character and lack specific enforcement and accountability provisions. In those cases, my recommendation is that the host country’s judicial council or equivalent consider reviewing the existing code and amending it to include (i) enforcement provisions that emphasize accountability, (ii) a process for reviewing allegations of violations that respects the rights of, and allows for the presentation of a defense by the accused, (iii) recurring judicial ethics and conduct training for all judges, and (iv) staged accountability sanctions that respond to the relative gravity of the violations.

Much of my international work has been in developing countries, sometimes in tandem with young and inexperienced consultants who assume that justice institutions in less prosperous developing states are characteristically backward and unsophisticated. My experience has been that even in the most highly developed countries, one can identify examples of institutional failure. In the U.S. Judicial Branch, the Code of Conduct for United States Judges² applies to all judicial officers of the lower federal trial and intermediate appellate courts and to administrative forums appointed under the authority of Articles I and III of the U.S. Constitution; it does not apply to supreme court jurists.³ The code includes provisions for invoking reviews of alleged code violations by circuit-based judicial councils and for imposing disciplinary action where it is deemed appropriate. It is a model code in many respects, and I have shared it with judicial leaders in myriad rule of law projects throughout the world.

Historically, the chief and associate justices of the U.S. Supreme Court have not been subject to a formal ethics or conduct code that applies only to them. They are subject, however, to the disqualification statute to which all federal judges are subject.⁴ They also are subject to two federal statutes that apply to U.S. government officials, including justices and judges: the 1978 Ethics in Government Act – 5 U.S. Code § 13104 – Contents of reports requires annual reporting of specified categories of gifts;⁵ and the 1989 Ethics Reform Act – 5 U.S. Code § 7353 – Gifts to Federal employees.⁶

Recent revelations of serious violations of intuitively obvious canons of judicial conduct by two current associate U.S. Supreme Court justices have raised concern nationally among professional bar and judges’ associations, legal academic experts, and the public. One justice accepted a fully funded luxury fishing vacation in 2008, that included travel by a privately owned jet to Alaska and accommodation at an exclusive private lodge.⁷ All expenses were financed by a wealthy businessman some of whose holdings were involved in litigation in multiple cases on the Supreme Court docket from which the angler justice failed to recuse himself.

The more egregious example involves a senior associate justice who, during his three decades of service on the Supreme Court, is known to date to have willingly accepted from wealthy billionaire acquaintances 38 gratuitous luxury vacations, VIP passes to sports events, related transportation on private jets and helicopters, a loan of nearly US$ 270,000 for the purchase of a luxury motor home, most if not all of which was apparently forgiven, and other gestures of largesse.⁸ He recused himself from cases involving his son but no other Supreme Court cases, including those involving his wife who actively conspired with others to overturn the results of the 2020 U.S. presidential election.⁹

In 2000, prior to his decades-long sequence of accepting lavish gifting, he quietly complained to at least one member of the U.S. Congress about his official compensation, warning that if no meaningful increase were soon forthcoming, “one or more justices” were likely to resign from the court, triggering a flurry of concerned enquiries from various congressional officials and lobbyists. He also suggested that the existing prohibition on justices being paid for speeches be lifted.¹⁰ Both initiatives failed to pass moral and political muster with U.S. Judicial Conference leaders.

The first associate justice noted above did not comply with mandatory disclosure requirements reporting the value of these sundry gifts until very recently, and then incompletely.¹¹ The second initially complied by reporting some early gifts but failed to disclose as required most of his subsequent paid luxury vacations and other significant financial gifts. Although both asserted ignorance of the mandatory reporting requirements and the impropriety of accepting such gifts, both had previously served as circuit judges on federal courts of appeals, one for 16 years and the other for 19 months. During their orientation to service on those intermediate appeals courts, both received written materials, routine formal briefings, and instruction on the Code of Conduct for United States Judges and their obligations under it. Neither of the justices expressed any regret. In both instances, these associate justices appear to have lost touch with their official status as civil servants and succumbed to the fiction that as Supreme Court appointees, their entitlements included admission to an exclusive patrician-underwritten, politically conservative aristocracy to which federal judiciary conduct constraints and ethical canons did not apply.

Accounts of these ethical lapses by jurists of the highest court of final appeal of the U.S. government researched by a reputable investigative organization, confirmed by others, and reported on social media spawned intense public outrage. They also generated demands that the Supreme Court adopt an enforceable disciplinary code of conduct for its justices similar to that governing all other federal judges appointed under Articles I and III of the U.S. Constitution and, for that matter, judges in numerous other countries, including supreme courts, courts of final cassation and constitutional courts. For years, the U.S. Supreme Court had balked at imposing a code of conduct for itself, but the recent combination of public indignation, dramatic loss of public confidence in the court’s integrity and independence, and warnings from the U.S. Senate that it would impose a code finally prompted the chief justice to act. Finally, on 13 November 2023, almost under protest, the Supreme Court promulgated a code of conduct, the first in its 234-year history.¹²

Release of the long-anticipated code generated a new groundswell of critical reaction and disappointment from lower court federal judges, the practicing bar, law professors, and the public. Politically conservative advocacy groups, by contrast, praised the court. Across the board, however, most commenting legal and ethics experts criticized the code’s weak aspirational format: (i) the glaring absence of accountability provisions, (ii) the loopholes that leave unaddressed the gross misconduct categories that triggered the stunning loss of public and professional respect and esteem for the court; (iii) the absence of any mandate for recurring ethics training for the justices although, astonishingly, it imposes mandatory Court-delivered training on judicial ethics principles on court support staff as if billionaires were contending for their attention by bestowing lavish vacations and gifts;¹³ (iv) the gaping absence of any enforcement provisions or imposable sanctions for misconduct; and (v) the failure to specify what comprises conflicts of interest and the explicit conditions under which justices are obligated to recuse themselves from cases based on those conflicts. Some critics went further, dismissing the new code as a political document purposed to (i) deter the U.S. Senate from imposing its own code on the court, and (ii) to placate the adverse political firestorm of criticism that revelations of the gross violations and the justices’ insolent responses had ignited.

Widespread concerns about the code’s deficiencies prompted dismissive comments by the two justices who generated the initial controversies. More meaningful responses from the court did not emerge until ten months later when Associate Justice Elena Kagan, dean emerita of Harvard Law School, attended the Judicial Conference of the U.S. Ninth Circuit Court of Appeals in Sacramento as the designated circuit justice. Referencing the new code in her remarks to the conference on Thursday, 25 July 2024, she noted that:

Justice Kagan went on to note that her comments reflected her opinion. Whether the chief justice will follow up remains unclear. Her suggestion that the appointment of a committee of experienced judges with a well-established record of fairness, presumably selected from among lower court Article III judges, was similar to enforcement mechanisms proposed by academics and prominent lawyers.¹⁵

Several weeks later, on 1 September, her colleague, Justice Ketanji Brown Jackson, in a nationally televised interview on the CBS Sunday Morning show, acknowledged that as a circuit judge on the D.C. Court of Appeals prior to her appointment to the Supreme Court, she was subject to the enforceable code of conduct that governs the conduct of all inferior Article III federal judges. “Is the Supreme Court any different,” she asked, then responded, “And I guess I have not seen a persuasive reason as to why the court is different than the other courts.” When queried about an enforcement mechanism for the Supreme Court’s ethics code, she responded “I am considering supporting it as a general matter. … From my perspective, I don’t have any problem with an enforceable code.”¹⁶

My experience prompts me to advise rule of law consultants to refrain from endorsing or recommending institutional independence where the underlying provisions do not include enforceable restrictions on judicial conduct and attendant sanctions on their violation. Personal accountability is a key element in keeping at bay myriad temptations to engage in improprieties that spawn judicial corruption, regardless of the institutional sophistication and prominence of a court or its individual jurists. In one notorious instance, the chief judge of a prominent U.S. federal court of appeals was reported to be obsessed with pornography, made no secret of it, and was accused of sexually and otherwise harassing professional court staff assigned to work with him.¹⁷ I advise judicial governance officials as follows: Trust judges to do the right thing but incentivize compliance by (i) specifying high standards of honorable conduct, (ii) incorporating provisions that enforce behaviors and interactions that conform to those standards, (iii) detailing what accountability sanctions are triggered when formal procedures confirm that culpable violations of those standards have occurred, and (iv) following through.

Lesson Seven: Ensure that host country officials fully understand and commit to implement recommendations that entail recurring resource requirements

The enthusiasm with which many international rule of law consultants approach their assignments is an important catalyst for successful projects. In compiling their analyses, however, they occasionally recommend endeavors that encumber robust resource commitments that either exceed host country officials’ fiscal capacity, fail to secure their buy-in, or conflict with already established priorities to which available resources have been committed. Perhaps the best examples relate to IT projects. Sophisticated court technology applications developed in the past four decades have transformed how progressive court systems manage their business, ranging from electronic case files and e-filing to automated civil and criminal case research databases, from virtual court proceedings to online dispute resolution.

Most international rule of law consultants are conversant to varying degrees with these applications and the efficiencies they offer. When assigned to projects in developing countries whose justice and court systems operate relying on more traditional paper-based records and case-processing models, their enthusiasm may prompt them to advocate transitioning to electronic systems to take advantage of the efficiencies they offer. Often, however, they are unfamiliar with the complex technical staging processes, attendant infrastructure investment, fiscal constraints of the host judiciary, and training requirements that successful transitions entail. They typically begin by persuading local officials of conversion benefits and proposing the designation of a small number of pilot courts whose transition costs, including acquiring IT expertise, will be covered by the project funding budget. Such pilot court efforts often succeed, although they typically surpass their planned budgets.

Serious difficulties frequently emerge as the pilot court effort concludes and work commences on staged implementation throughout the entire court system, entailing much greater reliance on local expertise to modify and finesse the pilot court software, procure hardware, initiate contract services for internet access and wi-fi networks, determine whether existing power capacity in existing courthouses is sufficient to accommodate the hardware, orient and train judges and staff in multiple locations, and vet and hire qualified IT personnel to manage the systems. It is during this staged implementation period that such projects frequently stall and subsequently risk failing.

Court improvement projects often expire during the extended staged-implementation phase: funding is exhausted; users revolt for lack of adequate training and support; project staff depart for other assignments, and primary responsibility for managing implementation shifts fully to the host country’s central court system administrative headquarters, often the justice ministry. Moreover, all projects must contend with host-country resistance and nay-sayers determined to ensure project failure. Because justice and court systems in developing countries are often significantly underfunded and because in-house IT expertise is often superficial, implementation efforts stall. As available resources are consumed, staged implementation efforts are postponed, system opponents flex their muscle, and court operations revert to traditional paper-based manual procedures and practices.

Successful implementation of IT projects in developing countries depends foremost on (i) negotiating long-term project support and funding commitments with host country central system administrators and the judicial council or its equivalent; (ii) placing sufficient competent IT professional staff positions both to direct the implementation effort and to provide ongoing system training, support, troubleshooting and maintenance;¹⁸ (iii) ensuring projects are undertaken with time frames of sufficient duration to assure project support for several stages of the post-pilot-court implementation effort, (iv) keeping affected staff informed and addressing their concerns promptly even if they seem irrational, and (iv) setting in motion during the pilot court conversion stage a plan that provides for sequential handover of project control, funding, and management responsibilities from project staff to the local court/justice system. Doing so will help to ensure that as the project’s scheduled expiration approaches, primary responsibility for the automation effort will have been successfully migrated to the host country.

Lesson Eight: Expand and get to know your onsite stakeholder network

As a novice advisor in the early 1990s, I confined my interviews largely to trial court judges and staff selected by my hosts. Concerned I wasn’t getting the full picture, I began to request interviews in the broader stakeholder network: experienced prosecutors, justice ministry officials overseeing courts, defense counsel, bar association leaders, and private attorneys. When I met with defense counsel in Jordan, they confided that judges and prosecutors from Amman routinely rode together to court sessions in other cities for trips as long as four hours, lodged in the same hotel, shared meals, walked or rode together to the courthouse, etc. Relations with defense counsel, by contrast, were largely restricted to formal court proceedings, a strategic disadvantage and a serious problem I brought to the attention of the justice minister.

When conducting an assessment in Serbia, I met with members of the High Court Council (HCC) who complained about the National Assembly for habitually reducing the judiciary’s annual budget requests. Curious, I arranged to meet with the leadership of the Assembly’s Judicial Oversight Committee. In a cordial meeting, the chairman informed me that the HCC habitually submitted its requirements in writing and never requested face-to-face follow-up meetings to answer questions, discuss needs, or negotiate funding requirements. He indicated his committee would welcome such meetings to better inform its deliberations and better understand the judiciary’s special needs. When I informed the HCC, its members were surprised. It had not occurred to them to request such meetings, and they committed to follow through during the upcoming budget cycle.

It has long been a cardinal rule of mine to include as many stakeholders as possible in my fact-finding. When I conducted a readiness assessment of the Georgian trial courts to implement criminal jury trials, I met with representatives from the:

• Central Election Commission of Georgia

• Georgia’s court marshals

• TNT commercial mailing and courier service¹⁹

• Georgian Supreme Court

• High Council of Justice

• Georgian trial courts

• Georgian General Prosecutor’s Office

• High School of Justice

• Legal Assistance Service and Criminal Defense Bar Association

• Georgian Young Lawyers Association

• Law school faculty conducting mock jury trials

• United Nations Development Program

• Embassy OPDAT and INL staff

• Local American Bar Association Rule of Law International leaders (ABA-ROLI)

• Ministry of Probation, Corrections and Legal Assistance (MPCLA)

• Norwegian Mission of Rule of Law Advisors to Georgia (NORLAG)

• German Foreign Service Development Agency (GTZ), and

• European Union representatives.

With each successive interview, I built on what I had learned in earlier meetings. When I finished the cycle, I was able to draft a relatively comprehensive report that identified what the Georgian judiciary had already undertaken to prepare for the transition to an effective criminal jury trial system and what further preparations were necessary to increase the likelihood of its success.

Lesson Nine: Don’t be discouraged if your hosts appear unreceptive

As I approach the end of a project, I often meet with my hosts in a final session to preview my findings. On rare occasions, they may evince little excitement or resolve, particularly in countries that may already have hosted several projects with significant time invested that achieved only modest results. There have, however, been instances in my work when, many months or even years later, I receive word that a proposal or recommendation I made was successfully implemented and had a major impact. My concluding interview during the Croatia assessment was with Cassation Court Chairman Milan Vuković, a distinguished and honored jurist who served earlier on the Constitutional Court, was a member of the League of Communists of Yugoslavia and the Constituent Assembly that drafted Croatia’s 1990 Constitution.

As I concluded my briefing, I noted that numerous judges I interviewed had expressed a sense of professional isolation and craved more frequent interaction with their colleagues to exchange ideas and discuss issues relating to both the substantive and procedural aspects of civil, commercial, and criminal adjudication. I explained how state and federal judges in the U.S. convene regionally in circuit judicial conferences and have opportunity to attend continuing judicial education programs in which they mix with colleagues from other districts and circuits. Given Croatia’s size, roughly one quarter the square kilometers of the U.K., he might consider organizing an annual judicial conference to which all Croatian judges would be invited for several days of instruction, discussions, small-group workshops, etc. Doing so would go far toward responding to the judges’ needs for more collegial interaction. It also would help to unify and strengthen the Croatian judiciary as an institution.

He listened to me and nodded in agreement, but it was clear that he had something else on his mind. When I finished, he rose, went to a closet in his spacious chamber, retrieved a document box, then seated himself next to me. For the next 20 minutes, he explained the origins and status of Croatia’s ongoing war for independence from the rump of the Yugoslav federation. The box in his lap was filled with explicit photos of Croatian soldiers and civilians who had been mutilated and killed by troops of the Yugoslav National Army and Serbian insurgent militias.²⁰ After this very sobering review of mass atrocity crimes, he concluded our meeting.

Several years later while at work in my U.S. court office, my assistant brought in my daily mail. Among the contents I found an official envelope from the Croatian Supreme Court. I was surprised and pleased that it contained a letter from Chief Justice Vuković in which he advised me that the Croatian judiciary had recently concluded its first national judicial conference. Nearly every judge in the country attended as did representatives from the ministry of justice, other ministries, and Croatia’s national assembly. The agenda included ample time for judges to interact. The conference was favorably received by all attendees, and the Chief Justice planned to institute it as an annual event.

Lesson Ten: Learn to take the unexpected and unusual in stride

Occasionally during travel to assignments in developing countries, I encountered unanticipated circumstances or conditions. On my way to Rwanda in July 2002, my itinerary called for me to fly from Salt Lake City to Atlanta, from Atlanta to Brussels with a five-hour early morning layover in a largely vacant airport, then another eight and on-half hours from Brussels to Kigali with a brief stop in Bujumbura, Burundi, an exhausting schedule. As the Sabina captain eased the aircraft into position for landing in Kigali in the early evening, I watched the setting sun burnish the lush Rwandan jungle with golden hues, relieved that the long trip was over. Just as the plane was ready to touch down, it suddenly lurched upward. The captain accelerated into a steep climb, then circled the airport at several thousand feet. Fifteen minutes later, he positioned the aircraft for the landing approach. Again, as the plane was about to touch down, we suddenly lurched upward again, this time circling in wide loops for 25 minutes in the fading light. On the third approach, the aircraft touched down and taxied to its parking space on the tarmac as the captain explained that, after clearing us to land, airport flight control had noticed a kine of cows crossing the runway. Chased away by ground personnel after the first incident, the cows had turned back onto the runway.

Several years later, I worked with the executive director (ED) of the CEELI Institute in Prague, and a small team to organize a training session for judges and legislators from Eastern European and Central Asian states at the CEELI Institute. By this time, the Institute had completed restoring Villa Grébovka, the Institute’s Prague mansion and training center, to its prewar architectural splendor, but contractors had not yet added the guest rooms or kitchen. We arranged with New York University to lease lodging rooms for the participants in its nearby Machova Residence Hall, a non-alcoholic facility with suites and shared bathrooms designed to accommodate U.S. students enrolled in its Academic Center’s summer programs.

On the third day of our seminar, several of the female judges housed at Machova complained to the ED that earlier that morning, the bathroom they shared was invaded by several local Czech-speaking women not among the seminar participants. The judges suspected they were sex workers who had spent the night with several male judges from one of the Central Asian “stans.” The distraught ED convened our small faculty group to discuss how to handle this delicate issue. At our suggestion, he approached the three judges in private. Indignant, they confirmed that they had solicited female companionship and invited the consorts to spend the night in their NYU suite. The ED advised them that doing so was in violation both of CEELI Institute policy and NYU Prague housing regulations. He warned that if they did so again, they would be sent home and forfeit per diem. With several days left to go and unwilling to forfeit the overnight companionship of Prague’s courtesans, they checked out of Machova and into a nearby hotel with the understanding that they would (i) bear all hotel lodging charges, and (ii) attend the remaining days of the seminar else forfeit their per diem.

This latter incident was the first and last of its sort I encountered in 30-years. In nearly all my professional encounters with foreign judicial and court officials, I found them with few exceptions to be honorable and committed women and men.