What about the Extra? Rethinking the Extraterritorial Atrocity Crimes Prosecutor

• In Event: Rethink and Reboot: Reimagining the Logos of International Criminal Justice

Abstract

Recognizing the limitations of the International Criminal Court as the solution to end all impunity and fueled by an explosion of data available on international crimes due to the advent of technology and transnational cooperation, domestic criminal courts have become a key space of international criminal justice. While there is a growing attention on new actors engaging in evidence collection, new types of digital evidence, and new cooperation strategies in this transnationalized investigations landscape, there is much less theorization in legal and social science on the role of the prosecutor in this new constellation. More generally, while the prosecutor is the most powerful actor in criminal justice systems, they are remarkably understudied compared to other branches and aspects of the justice system. For their new extraterritorial role in investigating atrocities that occurred elsewhere, theorization is virtually absent. Similarly, while universal jurisdiction trials are becoming a significant practice, it is unclear what rationales and aims such prosecutions underpin. Yet, universal jurisdiction – providing exceptions to otherwise jurisdictional limits due to the atrocious nature of certain crimes – and the extraterritorial nature of such prosecutions suggests that rather than automatically adopting analogies with domestic criminal justice or with the supranational legal order, this practice ought to be understood on its own merit and encouraged to develop a more apt conceptual grounding. This paper examines the logos of extraterritorial atrocity prosecutions by domestic prosecutors with a specific focus on the rationales for selecting cases and other prosecutorial choices, the (foreign and domestic) politics these prosecutions represent and generate, the manners of communication with and representation of (foreign and mass) victim groups, global society and their domestic constituency, expressivist rationales vis-à-vis retributive and preventive rationales, and what this turn to domestic prosecutors means for the larger international criminal justice project.

Author

• Marieke de Hoon, University of Amsterdam