Contested Criminalization

Authors

Steven Arrigg Koh, Boston University School of LawFollow

Document Type

Article

Publication Date

2025

ISSN

0006-8047

Publisher

Boston University School of Law

Language

en-US

Abstract

How does the U.S. government decide to deploy criminal justice abroad? From the Syrian civil war to the Israel-Gaza conflict, Russia-Ukraine War, and U.S.-China relations, criminal law sits at the heart of contemporary U.S. foreign relations. And yet legal scholarship has never precisely explained how the U.S. government deploys or supports criminal prosecutions abroad, often defaulting to simplistic labels of the United States as exceptionalist, carceral, or isolationist. This Article rectifies this by introducing a theory of contested criminalization, piercing the veil of U.S. government decisionmaking in its use of criminal law in foreign policy. According to this process, criminalization occurs when the U.S. government pulls three levers—codification, cooperation, and creation. But such process is contested, developing contingently in geopolitical crises due to the divergent equities of Congress and three executive agencies: the Department of Justice, Department of State, and Department of Defense. Using a criminal law minimalism frame, this Article argues for a policy of cooperation to redress wrongs and advance justice for victims.

Comments

DRAFT - PLEASE DO NOT CITE

Article forthcoming in 2025

Recommended Citation

Steven A. Koh, Contested Criminalization , 105 Boston University Law Review (2025).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/4041