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.

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.

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.

Building from this study, I suggest that differences in organizational structure and institutional culture (and not just differences in the applicable legal regime) may be principal reasons that the rise of private military firms threatens core rule of law values. In particular, the use of contractors may jeopardize certain aspects of military culture, both because the intermingling of contractors and uniformed troops on the battlefield may weaken public values within the military, and because contractors operating outside the military chain of command may themselves develop a different organizational culture and set of values that come to predominate in conflict and post-conflict situations as contractors assume ever-greater responsibilities. Finally, I take up the daunting question of how we might go about trying to reform the organizational structure and institutional culture within these contractor firms. By taking issues of organizational structure and institutional culture seriously, we can see that fostering greater compliance may sometimes be less a matter of writing new treaty provisions or increasing the activity of international courts and more a matter of subtly influencing organizations and the norms they inculcate. And while such a task is extraordinarily difficult, it is only by focusing on such organizational reforms that we can begin to address a world where states are not the only relevant agents of international law compliance and where private corporations with radically varying institutional structures are frequently the agents of human rights protection or violation.

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.

Analysis reveals how agency theory and finance theory often but not always point to the same policy implications; it reveals how finance theory’s assumptions and limitations are often but not always respected in policy development. As a result, while these theories sometimes produced policy changes that were both intended and desirable, some policy changes were both unintended and undesirable while others were intended but undesirable. Examination stresses the power of ideas and how they are used and cautions creators and users of ideas to take care to appreciate the limits of theory when shaping practice. That's vital since the effects of law and economics on law and accounting remain debated in many contexts.