Partly because of previous work I’ve done (with Sofie Schütte of the U4 Centre) on specialized anticorruption courts, I recently had the opportunity to participate in some interesting discussions in Kiev about ongoing debates about the possible the creation of such a court for Ukraine. There’s much to say on this topic generally, but what most and surprised me about the discussions I was fortunate enough to attend was how much they focused on a specific proposal—advanced by certain influential members of the Ukrainian civil society community—for the international donor community to participate (indirectly but formally) in the selection of the judges to serve on this court. There are a few different proposals floating around, but I’ll focus on the version embraced by a draft law currently pending in the Ukrainian Parliament. Under this proposal, judges on the special anticorruption court would be chosen by a nine-member Judicial Selection Committee. Of these nine members, three would be appointed by the President, three would be appointed by the Parliament, and three would be selected by the international donor community. (Formally, the last three would be appointed by the Minister of Justice, but that’s a formality: According to the proposal, the Minister of Justice would be obligated to consult with the international donor community and to appoint the three individuals that they recommend.)
For some in the civil society community, this feature of the proposal is absolutely essential, and they fear that without a formal role for the international community in the judicial selection process, the anticorruption court will be a failure. Others feel equally passionately that formalizing a role for international donors in the selection of special court judges is deeply misguided, and will jeopardize (both politically and legally) the special court experiment. I don’t know nearly enough about Ukraine’s specific situation to have an informed view on this one way or the other. But the proposal seemed sufficiently novel and interesting to be worth contemplating more generally. After all, though to the best of my knowledge there’s no precedent for what the draft Ukrainian law proposes, it’s not unheard of for countries to “outsource” (for lack of a better term) aspects of the law enforcement apparatus that most countries most of the time would consider core functions of the state, particularly in the context of anticorruption or closely related matters. (Probably the best known example is CICIG in Guatemala, in which a UN-sponsored body, headed by a non-citizen, has substantial investigative—though not prosecutorial or adjudicative—powers.) Is this an approach that more countries should adopt—for their investigators, prosecutors, or even their courts?
Again, I don’t have a terribly strong or well-informed view on this question, so this isn’t one of those posts where I’m going to take an aggressive, argumentative stand. I’m still thinking this through myself. But I figured that since this question might be of interest to others as well, I’ll offer a few thoughts on the possible advantages and disadvantages of outsourcing some or all of a state’s core law enforcement functions. I’ll think about this mainly in the context of anticorruption, though many of the arguments would apply more generally.
Long story short: I can think of two big potential advantages for this sort of outsourcing, and four countervailing drawbacks.
The first and most important potential advantage to outsourcing certain “sovereign” law enforcement functions is probably obvious: Distrust of the domestic institutions to function independently and impartially when the interests of senior government officials or other well-connected parties are potentially at stake. Foxes, henhouses, and all that. This seems to be quite clearly what the Ukrainian activists who want the international donor community to help select special court judges (or, to be more accurate, to select those who will select special court judges) have at the forefront of their minds. When domestic institutions are sufficiently unreliable—for example, when leaders would tend to appoint to judicial selection committee individuals who will in turn appoint party loyalists or those with a reputation for timidity—then it might make sense to shift some of the decision-making authority to foreign actors. Doing so can also act as a kind of “credible commitment” device for the political leaders: They want to signal to various domestic and international audiences that they’ll take the investigation and prosecution of certain crimes—say, corruption—more seriously than they have in the past, and won’t find ways to undermine or manipulate those cases, but the audiences in question might have reason to be skeptical—and may not be able to monitor the leadership on a continuous basis. Outsourcing some of the key decisions to foreign decision-makers perceived as trustworthy is a way for the domestic leadership to signal its commitment.
The second potential advantage concerns institutional capacity. Even if domestic law enforcement institutions operate with sufficient integrity, they may not have the capacity to effectively investigate, prosecute, or adjudicate complex financial crimes or similar matters. A very small country might simply not have enough talented people to serve in the key positions. Similarly, a country in a post-conflict transition, or following a political transition in which large numbers of public officials from the prior regime have been disqualified, might find it helpful to outsource (perhaps temporarily) some of its law enforcement and judicial functions. This doesn’t apply so much to the specific proposals being debated in Ukraine, but it might apply in other circumstances. For example, as I understand it (and I could be wrong, as my knowledge here is limited) the EULEX program in Kosovo, in which certain serious crimes are tried by panels with a majority of foreign judges (though in the EULEX case, the first justification—distrust of domestic institutions to function fairly and impartially—also likely plays a significant role). Also, and closely related to the above points, there’s the hope that bringing in capable, experienced foreigners that can work with domestic institutions and officials will help build domestic capacity. This, I gather, is very much one of the hopes for CICIG in Guatemala.
If those are the advantages, what are the disadvantages? Four main ones stand out:
- First, the involvement of foreign actors in anticorruption enforcement (or other matters) may make those enforcement efforts more vulnerable to political attacks by those who seek to discredit particular cases, or the institutions, or both by painting them as tools of meddling foreigners. The amount of traction such attacks will get is probably highly dependent on the particular circumstances of each country. In Guatemala, attempts to cast CICIG as an illegitimate tool of outsiders bent on undermining Guatemalan sovereignty don’t seem to have worked, and I gather CICIG is much more popular and trusted than many domestic institutions. But in other countries, such attacks may be much more effective. A possible example here—albeit one that’s relatively obscure—concerns the Turks and Caicos Islands, where following a report indicating serious high-level corruption, Helen Garlick , a British lawyer and former senior official at the UK Serious Fraud Office, was brought in to serve as a special anticorruption prosecutor. Once she started pushing cases against powerful political figures, she found herself under attack—in street protests, in the local media, and elsewhere—as a meddling foreigner trying to railroad local politicians in a “witch hunt” smacking of neo-colonialism. Though I gather she has continued her work and achieved some success, this example illustrates the more general point that seeking to “purchase” greater integrity and capacity by bringing in an outsider may come at a steep political price.
- Second, the involvement of foreign actors may make courts and other law enforcement institutions more vulnerable to legal challenges as well. Here, even more than with respect to the political concern, there’s so much variation across countries that it’s hard to generalize. But in many countries, it’s at the very least constitutionally problematic for foreign entities or non-citizens to play formal roles in domestic law enforcement efforts. And it’s safe to say that those who oppose the activities of the institutions in which foreigners play some role will mount any plausible legal-constitutional attack on their legitimacy.
- Third, there’s the risk that outsourcing key functions to foreign entities, instead of helping to build domestic capacity, will actually retard the development of domestic capacity by making the country overly dependent on foreign involvement. Again, this concern seems less germane to proposals like the Ukrainian suggestion that foreign entities help choose a handful of members of a selection committee, but it would be more pertinent to proposals for broader outsourcing of domestic functions.
- Fourth, it’s worth keeping in mind that the political and legal arguments against outsourcing are not just hurdles to be overcome in pursuit of a desirable institutional arrangement. There are in fact some very good reasons—not just “weaponized” instrumental arguments by opponents of anticorruption enforcement—against outsourcing important domestic functions. Independence is an important value, but so is accountability. Being embedded in a particular culture may make someone more susceptible to improper influence, but might also make that person more sensitive to norms and understandings that can guide the appropriate exercise of discretion. Even when domestic institutions are highly unsatisfactory, it’s not always the case that outsourcing to foreigners will help more than it hurts.
I realize that this is something of an unsatisfying post—as much for me writing it as for you reading it—because I don’t have a clear sense of how to evaluate the tensions and trade-offs among these various considerations. After the fascinating and surprising discussions I heard in Ukraine, I’m still trying to work through how to think about these questions, and this post is basically my first stab at trying to do so. I figured I might as well do it in public, so others who are interested can weigh in. I do think these issues are worth contemplating, as I suspect that Ukraine is not the last country to explore something along these lines—and if Ukraine goes ahead and adopts a law that carves out an explicit role for the international community in the selection of its anticorruption judges, I imagine that other countries will look to it as a potential model, for better or worse.