Punishing Non-citizens
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Punishing Non‑citizens Gideon Yaffe1
© Springer Nature B.V. 2020
Abstract This paper considers the question of why the non-citizenship of offenders poses an obstacle to their criminal punishment. Several proposals are rejected, including Antony Duff’s proposal. It is proposed, instead, that governments are not authorized to punish any offender who cannot be attributed with the norm he violates. The government cannot attribute the norm that a non-citizen violates to him, if the noncitizen can raise in his favor the fact that he has no say over the law. Under certain circumstances, such as when they are visiting, non-citizens cannot raise this point, and so can be attributed with the norms they violate. Keywords Punishment · Citizenship · Crime · Antony Duff · Civil Order
1 Introduction On October 2, 2018, Jamal Khashoggi, a Saudi citizen and prominent dissident, was lured to the Saudi consulate in Istanbul and murdered by agents of the Saudi government. The United States’ Central Intelligence Agency concluded that the murder was ordered by Mohammad Bin Salman, also known as “MBS”, a member of the Saudi royal family.1 The United States decidedly has the power to bring MBS to trial in the United States for this crime. An attack team could be sent to snatch him. He could be given a fair trial in a US courtroom and he could be sent to an American prison for murder. The United States government has the power to make these things happen. Of course, it would destroy our relations with Saudi Arabia. And it would be a diplomatic nightmare in other respects too. Many other countries would fear that their citizens would also become our punitive targets and would take steps to protect them. Overall, it probably would not be in our interests to bring MBS to justice. There are prudential objections. But we could do it. 1 Mark Mazetti and Ben Hubbard, “It Wasn’t Just Khashoggi: A Saudi Prince’s Brutal Drive to Crush Dissent” in The New York Times, March 17, 2019, https://nyti.ms/2W5YDkY.
* Gideon Yaffe [email protected] 1
Yale Law School, 127 Wall Street, New Haven, CT 06511, USA
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Criminal Law and Philosophy
The topic of this paper, however, is a decisive non-prudential objection to our punishing MBS: MBS is not a US citizen. For this reason, and in a sense that matters, the crime is not our business. It would be perfectly just to punish this grievous wrong, which meets the United States’ statutory definition of murder. But our laws do not govern MBS’s behavior. It is not our job to make the world just to the degree that it would be were MBS punished. What all of this implies is that we lack the authority to do it, despite possessing the power. On the surface, what was just offered appears to be an instance of the following type of argument: 1. Punishment-Authority: Government G is justified in punishing person D for crime C only if G has authority over D. 2. Authority-Citizenship: G has authority over D only if D is a citizen of the state, S, over which G is the government. 3. So: Gover
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