War and Punitivity under Anarchy

The individualization of punishment is a key element in liberal narratives about international law and international relations. By now, this narrative has become integral part of positive international law, especially the regimes governing the use of force and the prosecution of international crimes. Rather than punishing states or entire societies, liberals claim, punishment has become restricted to those who incurred individual guilt. To liberals, the individualization of punishment is part of a larger process of enlightenment and civilizations that has helped to fence atavisms like revenge. In this paper, we do not question the emergence of an ever more sophisticated system of individual punishment in international law. However, we argue that punitivity has been more difficult to fully channel towards individuals and away from collectives than claimed. To be sure, punitive language has by and large been banned from the laws of armed conflict. We argue, however, that the absence of a punitive vocabulary does not equal the absence of punitivity. In contrast, current state practices of using armed force are still imbued with punitivity, however silenced in the current legal framework and thus pushed underground. Realizing the presence of a punitive undercurrent, we argue, adds to a more comprehensive understanding of contemporary state practices.