Is criminal prosecution a tool of foreign policy? Should it be? The US arrest of Huawei’s CFO and US indictments of Russian hackers, Venezuelan President Maduro, and others make these particularly timely and worthwhile questions. Steven Arrigg Koh’s article, The Criminalization of Foreign Relations, provides a response, ultimately arguing for a constrained role of “extraterritorial law enforcement policy” in foreign relations.
The article’s main move is to consider criminal actions as part of the classic list of foreign policy tools alongside “diplomacy, cooperation and association agreements, trade, economic sanctions, military force, and the use of foreign aid.” (P. 739.) The author then makes the case for a cabined and depoliticized use of the tactic. Criminal actions, he suggests, should be confined to contexts that take advantage of their basic characteristics: They are individualized, retrospective, involve lots of process, and have high stakes, with incarceration as a possible outcome. (Pp. 757–58.) And they are “adjudicated before a neutral branch of government in adherence to a broader rule of law.” (P. 758.)
The article is part of an ongoing project, one that raises and wrestles with urgent questions beyond what any one article can resolve. This and an earlier publication, Foreign Affairs Prosecutions, follow a rich thread that draws on the author’s experience as a prosecutor as well as his other research.
The work is at the underexplored intersection between criminal law and foreign policy. As the author points out, the two literatures do not always share basic assumptions. Crucially, criminal law literature views overcriminalization as the problem, while international law scholars are “largely sanguine” about the involvement of criminal authorities in the form of international criminal courts. (P. 741.)
The Criminalization of Foreign Relations works at two levels. It does not shy away from big underlying problems. It addresses, for instance, the eroded faith that criminal justice is separate from political motivations. Elsewhere in the piece it asks fundamental questions about the purpose of criminal law. (P. 782.)
And yet the article also looks at the fine-grained details, particularly about federal prosecutors. One intriguing example is the DOJ’s “China Initiative.” The program was initiated in 2018 to “’reflect the strategic priority of countering Chinese national security threats and reinforce[ ] the President’s overall national security strategy.’”1 It was still in place as of the article’s writing.2
The article also takes us even deeper into the structure of federal prosecution in its discussion of the “national and international security coordinators,” AUSAs trained on “transnational and international issues arising in U.S. federal criminal prosecution.” (Pp. 780–81.) The article’s most compelling prescriptions also operate at this level, on the ground. (Pp. 778, 781.)
The article sorts between good and bad uses of extraterritorial law enforcement policy. The cautionary tale is the “global arrest game”—think of the controversy over Huawei’s CFO. (P. 754.) The paper could highlight more systematically situations where coordination works. (My own work on coordination in civil enforcement may motivate my interest.) One good use is when all the countries involved define the conduct as criminal or even seek criminal action against the particular target. Akin, maybe, to the idea of “dual criminality” in extradition. (Pp. 762, 786.) Is that the only good use? What, if anything, falls between enforcement cooperation and playing the global arrest game?
Corporate versus individual defendants might also be an organizing axis. Again, the author touches on this briefly (Pp. 752–53), but the categories might be able to do more work in sorting good uses from bad.
The role of criminal prosecution beyond US borders is complicated. And law review articles do not always lend themselves to writing that does not offer a single shiny silver bullet, but rather is ultimately an argument for restraint. The Criminalization of Foreign Relations has a laudable goal – to develop “a principled role for U.S. extraterritorial law” (P. 787) – and an approach that combines expertise with willingness to think about essential underpinnings.
- P. 745 n.34 (citing U.S. Dep’t of Just., Information About the Department of Justice’s China Initiative and a Compilation of China-Related Prosecutions Since 2018 (June 14, 2021).
- For an update, please see this Law360 article.