Citizenship v. Territory: explaining the scope of the criminal law

ALEJANDRO CHEHTMAN

New Criminal Law Review

Año: 2010

Antony Duff and his coauthors have influentially argued that citizenship plays a central role in accounting both for the way in which the states make individuals criminally responsible for certain crongs, and for holding the authority to call them to answer for their wrongs. This paper takes issue with this citizenship-based understanding of the scope of the criminal law. It argues taht Duff's model of civic criminal liability faces difficulties in explaining states' right to punish foreigners for crimes committed on their territory, and sits very uncomfortably with states claiming universal jurisdiction over international crimes. In contrast, it advocates a territorial conception of the criminal law. It suggests that to account for the allocation and scope of the right to punish, we need to look at the (collective) interest of those individuals who actually are in the territory of a particular state, not merely its citizens. Finally, it examines whether the notion of ctizenship plays any meaningful role in a convincing accoutn of the authority of the state to try an offender. Contra Duff and others, it argues that this authority rests exclusively on defendants receiving a fair trial and a verdict based on reliable evidence.