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Abstract:
Although domestic administrative law scholars have long debated privatization within the US, this debate has not confronted the growing phenomenon of privatization in the international realm or its impact on the values embodied in public international law. Yet, with both nation-states and international organizations increasingly privatizing foreign affairs functions, privatization is now as significant a phenomenon internationally as it is domestically. For example, states are turning to private actors to perform core military, foreign aid, and diplomatic functions. Military privatization entered the popular consciousness in 2004, when private contractors working for the US government abused detainees at Abu Ghraib prison in Iraq. But this is only the tip of the iceberg. The US is increasingly using private actors for logistical support to combat troops and to provide strategic planning and tactical advice. Other states, such as Sierra Leone, have used private contractors to engage in direct combat, and international organizations have weighed the possibilities of using private contractors to perform peacekeeping. In the foreign aid context, states and international organizations are entering into agreements with private non-profit and for-profit entities to deliver all forms of aid, including humanitarian relief, development assistance, and post-conflict reconstruction. Even diplomatic tasks such as peacekeeping negotiations are being undertaken by private actors.

In this Essay I suggest that the domestic U.S. administrative law literature may provide a useful set of responses to privatization that has been largely overlooked by international law scholars, policy-makers, and activists. In particular, I argue that possibilities for extending public law values inhere in the privatized relationship itself, particularly in the government contracts that are the very engine of privatization. Thus, the contracts governments enter into with non-state actors can include many provisions that would help to create both standards of behavior, performance benchmarks, and a means of providing some measure of public accountability. In this Essay, I outline nine such contractual provisions. Specifically, I suggest that contracts be drafted to: (1) explicitly extend relevant norms of public international law to private contractors, (2) specify training requirements, (3) provide for enhanced monitoring both within the government and by independent third-party monitors, (4) require accreditation, (5) establish clear performance benchmarks, (6) mandate self-evaluation by the contractors, (7) provide for governmental takeovers of failing contracts, (8) include opportunities for public participation in the contract negotiation process, and (9) enhance whistleblower protections and rights of third-party beneficiaries to enforce contractual terms. And while these provisions are not a panacea, they may be at least as effective as the relatively weak enforcement regime of public international law. At the same time, by considering the field of international privatization, I seek to open what I believe could be a fruitful dialogue between domestic administrative law scholars and international law scholars about possible responses.

Privatization, Government Contracts, International Law

Abstract:
Although the privatization of governmental functions has long since become a fixture of the American political landscape and has engendered a rich scholarly debate among domestic administrative law scholars, far less attention has been paid to the simultaneous privatization of what might be called the foreign affairs functions of government. Yet privatization is as significant in the international realm as it is domestically. The United States and other countries now regularly rely on private parties to provide all forms of foreign aid, to perform once sacrosanct diplomatic tasks such as peace negotiations, and even to undertake a wide variety of military endeavors. Moreover, because most formal international law instruments apply only to governmental actors, we face the specter (as with domestic U.S. constitutional law) of private contractors falling through the cracks of the international legal regime and evading accountability altogether. Despite the magnitude of these developments, however, international law scholars have not yet focused sufficiently on privatization as a comprehensive trend in the international arena, let alone considered its implications.

This Article seeks to fill that gap in the literature while arguing, perhaps counter-intuitively, that privatization in the international sphere need not actually result in reduced accountability. Indeed, the opposite may sometimes be the case because, unlike in the domestic context, legal accountability is actually very difficult to achieve under international law with respect to either state or private actors. Such a failure of accountability under international law is, of course, a cause for concern. Yet it means that there may actually be more avenues of accountability over private contractors than are available with regard to state actors. This is because the very fact of privatization - with its hybrid public-private character - may open up alternative avenues of accountability beyond the formal instruments of international law. Drawing on the extensive domestic administrative law literature on privatization, I argue that international law scholars must consider these alternative avenues of accountability: democratic accountability, contractual accountability, and internal institutional accountability. Applying this expanded framework to both the privatization of military activities and foreign aid, I seek to open a dialogue between international law scholars and domestic administrative law scholars concerning the implications of privatization. In addition, the framework I articulate may allow us to more easily distinguish those circumstances in which privatization may be benign from those in which the risk of impunity is too high.

Privatization, Government Contracts, International Law

Abstract:
We are currently in an era when the divergent methodologies of international law scholarship and the very idea that international norms might play a useful role are hotly contested. The debate about international law's impact, relevance, and role in the world has become increasingly intense as a particular version of rational choice theory, dressed up as non-normative empirical political science, has sought to advance a crabbed view of international law and to limit its influence. Scholars adhering to this view have argued that nation-state self-interest both is and should be the primary reason for forming and enforcing international law; that executive branches within states are the most legitimate agents for making and interpreting this law; and that international law has limited impact in the world. Against this backdrop, the need to define an alternative approach and call it a school becomes important because ideas advanced as part of a broader collective framework may wield more power and have greater impact. Many scholars seek to defend international law and have used a variety of methodological approaches to do so. A younger generation of international law scholars educated at Yale Law School or deeply engaged with ideas developed in New Haven have been at the forefront of these efforts. This Commentary suggests that the work of this younger generation share a number of important features that might qualify it as a new school of thought about international law - and interestingly, these features echo aspects of the original New Haven School.

international law, political science, New Haven School of International Law

Abstract:
Following the 9/11 terrorist attacks, those arguing that international law cannot serve as an effective tool in the fight against terrorism have grown. The ranks of international relations realists, who view international law primarily as a cover for strategic interests and thereby as lacking any independent bite, has swelled. In November 2001, President Bush issued an executive order asserting the authority to use military commissions to try individual terrorism suspects captured by the United States. Such commissions would be conducted unilaterally and would not be required to include procedural safeguards to protect the rights of the accused.

This crisis has forced us to revisit the question of what the rule of law gets us as a nation and as a people. This article argues that the Administration's treatment of detainees and the military commissions run counter to the rule of law - both domestically, by violating American constitutional protections, and internationally, by flouting established principles of international law. Far from being a straight-jacket that threatens our security, respect for legal process values and international law, will actually best serve our long-term strategic interests in containing terrorism. This article also considers how an international tribunal process could be initiated expeditiously and two alternative "quasi-international" models that have received insufficient consideration thus far. The law skeptics' perspective is also addressed at a more theoretical level, offering some tentative observations about the importance of fair adjudicatory processes despite the fact that societies are always to some degree riven by conflict.

terrorism, international law, international tribunals

Abstract:
This essay is a contribution to the War Crimes Research Symposium: "Torture and the War on Terror” at Case Western Reserve University School of Law, October 7, 2005. The symposium raised important questions about the problem of torture and the use of torture in the so-called "War on Terror." In considering this problem, this essay focuses on an aspect of the issue that has only recently received popular and scholarly attention, but that is likely to have profound implications: the privatization of military functions, and specifically, the privatization of torture. Such privatization may, at first blush, seem to render it more difficult to hold human rights abusers accountable because private actors might not be deemed subject to various international human rights instruments that were initially drafted primarily with states in mind. Yet, while the extensive outsourcing of torture to private military contractors is certainly a cause for serious concern, such outsourcing may not provide as serious an impediment to accountability as it may at first seem. Indeed, abuses by private contractors may actually be more readily subject to legal sanction than abuses by official governmental actors. Nevertheless, scholars and policymakers need to look beyond simply the formal instruments of international human rights law and consider alternative modes of accountability as well, such as the use of contractual provisions and internal institutional structures. These alternative modes of accountability harness the potential of the government contracts that are the very engine of privatization to help deter and prevent torture and other abuses.

torture, human rights, war crimes

Abstract:
In the wake of the September 11th attacks on the World Trade Center and the Pentagon, how to apprehend, question, and punish the perpetrators remains a difficult question to answer. Moreover, the question of where, and how, to try suspects raises a series of deeper questions about the role of criminal accountability in times of conflict and war.

Scholars in the emerging field of transitional justice do not focus on the question of terrorism specifically, however, they study the ways in which societies that are attempting to confront past and lingering mass atrocities do so through a variety of means: criminal trials, truth commissions, civil compensation schemes, lustration programs, and so on. An exploration of how the insights derived from this body of work might be applied to the problem of terrorism in the wake of September 11th would be a fruitful source of further research.

This Essay is an effort to initiate that process by examining an emerging transitional justice mechanism - the mixed domestic-international tribunal - and considering the role such tribunals might play in the fight against terrorism. This brief Essay delineates the recent history of this emerging accountability mechanism, compares hybrid tribunals to international tribunals, on the one hand, and domestic tribunals, on the other, and suggests their possible use in the current climate, in a setting such as post-Taliban Afghanistan.

transitional justice, international law, terrorism

Abstract:
The decisions regarding detainees in the so-called "war on terror" - Hamdi, Padilla, and Rasul - leave a number of questions unresolved. This essay focuses on one question in particular: What happens when terrorists are detained not by U.S. authorities, but by private contractors hired by U.S. authorities? Domestically and internationally, we are seeing an increasing turn to private contractors performing what we might think of as core governmental functions. Accordingly, it is vital to consider to what extent private actors involved in the treatment of detainees in the war on terror can be held accountable for their actions. Although in the domestic context many scholars argue that privatization leads to a dramatically reduced scope of accountability, we may not be able to translate that conclusion to the international sphere because the baseline is different; accountability is actually very difficult to achieve under international law with respect to either state or private actors. Although there are not many avenues to hold private actors accountable, there are some possibilities, which will be discussed in this essay. In particular, this essay suggests that human rights lawyers and scholars should consider not only accountability through the vehicle of suits to enforce international law norms, but also suits to enforce ordinary municipal law.

human rights, international law, torture

Abstract:
Filartiga v. Pena-Irala established the idea that domestic tort suits might be brought under the Alien Tort Claims Act ("ATCA") against those accused of violating human rights norms. But what is the legacy of this case in an era of military privatization? Are there available legal responses to what we might call the privatization of torture? In the Abu Ghraib prison in Iraq, where detainees were tortured and abused, the individuals involved in the torture included not only members of the military, but contractors hired from the private sector. Because U.S. constitutional scrutiny traditionally applies only to state actors, privatization has been seen as potentially undermining constitutional oversight. Moreover, because many international human rights are framed as rights against state overreaching, the turn to private actors might appear to present a significant problem for legal accountability.

Yet, military outsourcing may not, by itself, pose quite as serious an impediment to accountability. To the contrary, human rights abuses by private contractors may actually be more readily subject to legal action than abuses by official governmental actors, both through civil suits under the ATCA to redress violations of international human rights law, and through civil and criminal litigation to redress violations of domestic law. Using the Abu Ghraib prison abuse as a case study, this Essay will compare the possible forms of legal accountability for official governmental actors and private contractors, and suggest that the latter are at least as likely, and perhaps more likely, to be held accountable for abuses.

torture, human rights, Alien Tort Claims Act

Abstract:
Over the past decade, issues of accountability and reconciliation in the aftermath of mass atrocities have increasingly dominated the field of international human rights. Much of the discussion among scholars and policy-makers has focused on the relative merits of international tribunals - such as the International Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the newly created International Criminal Court (ICC) - and domestic approaches, such as local trials or truth commissions. Comparatively little attention has been paid, however, to a newly emerging form of accountability and reconciliation: hybrid domestic-international courts. Such courts are "hybrid" because both the institutional apparatus and the applicable law consist of a blend of the international and the domestic. Foreign judges sit alongside their domestic counterparts to try cases prosecuted and defended by teams of local lawyers working with those from other countries. The judges apply domestic law that has been reformed to accord with international standards. This hybrid model has developed in a range of settings, generally post-conflict situations where no politically viable full-fledged international tribunal exists, as in East Timor or Sierra Leone, or where an international tribunal exists but cannot cope with the sheer number of cases, as in Kosovo. Most recently, an agreement to create a hybrid court in Cambodia has been reached, and there is discussion about creating a such a court in post-war Iraq.

Hybrid courts have not yet been the subject of sustained analysis, even among scholars and policy-makers who focus on transitional justice issues. This article seeks to fill that gap by identifying hybrid courts as an important area of future study and making a preliminary assessment of their potential strengths and weaknesses. I look at the Kosovo, East Timor, and Sierra Leone courts, and I suggest that such courts, while not perfect, hold considerable promise as a model, particularly with regard to their perceived legitimacy (among both international and domestic constituencies), their ability to catalyze local efforts to establish rule of law institutions, and their potential to foster the development of human rights norms within emerging legal systems. Finally, I discuss ways in which hybrid courts might fit into the ICC's complementarity regime. I argue that such courts are best seen not as alternative to international or local justice, but rather as an important complement to both.