The Philosophical Foundations of Extraterritorial Punishment

ALEJANDRO CHEHTMAN

Oxford University Press

Lugar: Oxford; Año: 2010 p. 187

978-0-19-960340-4

This book provides the first full account, explanation and critique of extraterritorial punishment in international law. Extraterritoriality is deeply entrenched in the practice of legal punishment in domestic legal systems and, in certain circumstances, an established principle of public international law. Often, States claim the right to punish certain offences provided for under their own domestic laws even when they are committed outside their territorial boundaries. Furthermore, extraterritoriality is perhaps the most salient feature of International Criminal Law. Many individuals have been prosecuted in different parts of the world for crimes against humanity, war crimes, genocide, etc. before tribunals which are often located outside the territorial boundaries of the state in which the offences were perpetrated. Finally, the issue of extraterritorial punishment is of pressing importance because of the emergence of new forms of globalized crime, such as transnational terrorism, drug-trafficking, trafficking of human beings, and so on. Extraterritoriality, however, has not received much attention from scholars working on the philosophy of international law and international criminal law, on the justification for legal punishment or in the area of global justice. This gap in the literature is a significant one. A philosophical account of extraterritorial punishment both sheds new light on, and challenges, some widely held positions regarding the way in which the scope of the right to punish is currently regulated as a matter of law. This account also confronts the current leading philosophical justifications for legal punishment with an important problem that has remained underexplored. The aim of this book is, therefore, to provide a convincing normative account of extraterritorial punishment. By doing this it would also steer current debates on international criminal justice and the philosophy of punishment in new directions, and link these debates to globalization, the emergence of transnational crime, terrorism, war, and the problem of impunity and mass atrocity.A preface sets out the enquiry and situates the general argument within existing debates regarding global justice and the criminal law. It illustrates the entrenched nature of extraterritoriality in contemporary practices of state punishment and examines the normative and analytical issues this gives rise to. Chapter 1 clarifies the methodology I will use in the book. I endorse a rights-based approach, i.e., that the issue of extraterritoriality has to do with conferring upon a particular extraterritorial body (or bodies) the right to punish a particular offender. I use Hohfeld?s classic distinction between different types of rights and suggest that the right to punish is essentially a normative power. Furthermore, I advocate a version of the interest theory of rights. Yet this does not yet amount to a complete justification for this normative power. In order to confer upon a particular state the right to punish it is not enough to identify a particular interest sufficiently important to be protected by a right; we must also account for that specific body having the authority to exercise that right. Distinguishing these two separate arguments is crucial for the purposes of providing an analytically sound account of extraterritorial punishment. Chapters 3 to 5 in the book will be concerned with the reasons that justify meting out legal punishment to offenders. Chapter 6 addresses the issue of authority. Throughout the book I argue that the extraterritorial scope of a state?s power to punish rests exclusively on the particular interest that explains it holding this power and, crucially, on whose interest it is. Chapter 1 is also concerned with explaining the specific moral challenge that the issue of extraterritoriality presents. This normative challenge is closely associated with the principle of state sovereignty, and with the normative argument on which it rests. I endorse a broad cosmopolitan position and provide an account of state sovereignty based on the interest of individuals. On the basis of this argument I clarify how it is that state sovereignty confers upon a particular state a prima facie immunity against extraterritorial bodies enforcing criminal prohibitions on its territory. Chapter 2 presents an innovative justification for the right to punish through the exercise of extraterritorial jurisdiction which is based on the interest of individuals in a given state in there being a system of rules prohibiting murder, rape, etc., in force. This argument is based on a jurisprudential point about the existence of a legal system and on a normative point about the way in which criminal law systems contribute to the well-being of individuals. I contrast this with some of the leading arguments available in the literature. In this chapter I argue that this argument has two important advantages over most of its prominent rivals. First, it allows me to account for the fact that the right to punish is a normative power, and not simply a liberty to inflict suffering upon the offender. Secondly, it can accommodate the fact that both states and international criminal tribunals claim the power to punish an innocent individual (by mistake), while at the same time retaining the core intuition that it would be wrong for them (i.e., that they would not be at liberty) to do so. Chapter 3 provides a normative framework for extraterritorial punishment over domestic offences. I show that this framework is superior to some of the most influential justifications for legal punishment available in the literature, because they either entail a commitment to universal jurisdiction for any domestic offence, or they find it problematic to explain a state?s power to punish a foreigner for an offence committed on its territory. I also challenge the widely-held view that states are justified in claiming extraterritorial jurisdiction on the basis of the nationality of the offender (nationality principle) or that of the victim (principle of passive personality). I argue that the standard arguments on which these principles are normally advocated either beg the relevant question they are meant to answer or simply lead to broader, and arguably less appealing rules on the extraterritorial scope of the power to punish. Of the rules of international law granting extraterritorial jurisdiction over domestic offences currently in force I only defend the principle of protection, that is, states holding extraterritorial jurisdiction over offences committed against their sovereignty, security or important governmental functions. In this context I provide an account of transnational criminal law. Chapter 4 presents a jurisdictional theory of international crimes. I argue that the defining feature of the concept of an international crime is that it warrants conferring upon some extraterritorial body the power to punish their perpetrators. I submit that the main arguments available in the literature fail to account for this specific feature mainly because they are entirely unrelated to the reasons that justify meting out legal punishment to offenders in the first place. By contrast, I suggest that the argument provided in Chapter 1 allows me to explain precisely this normative implication for standard cases of international crimes. I consider the implications of this view for existing laws concerning certain war crimes, crimes against humanity, genocide and aggression. I conclude this chapter by examining different varieties of terrorism and piracy to assess the explanatory potential of the view I endorse here. Chapter 5 provides a fresh look at the issues of international and universal jurisdiction, i.e., at the theoretical explanation for the scope of the jurisdiction of the International Criminal Court (ICC) and the proposition that every state should have the right to punish an offender for international crimes. It challenges the standard position that seeks to explain the territorial scope of the ICC?s jurisdiction by reference to state consent or delegation of powers and rejects arguments for universal jurisdiction based, e.g., on the pursuit of peace, and the interests of humanity as such. Moreover, it suggests that universal jurisdiction is heavily undertheorized, and that most of the leading arguments can explain, at best, only why a given state lacks an immunity against some extraterritorial state having the power to punish certain offences committed on its territory, but none address the more complicated question of why this power to punish should be distributed among all states. Chapter 6 provides a theory of legitimate authority to try offenders. It applies Joseph Raz?s influential service conception of authority to the question of what conditions a given body should meet in order to claim, itself, the power to punish. This enables me to perform a philosophical examination of certain charges often raised against extraterritorial prosecutions. I examine controversial issues such as ?show trials?, victor?s justice, ?clean hands?, tu quoque, and trials in absentia or against defendants who have been abducted abroad. I ultimately argue that although some of these considerations might undermine a particular state holding the power to punish a given offender, they are not essentially concerned with the fact that it purports to punish a particular offender extraterritorially. In other words, I argue that although the argument for a given body?s authority is necessary in order to provide a complete justification for this body holding the power to punish an offender, it is conceptually and normatively mistaken to consider these obstacles as bars to extraterritorial criminal jurisdiction.