Infinite Punishment

War as Criminal Penalty

by Herbert Prantl

Suddeutche Zeitung, Munich, Germany, Sept. 18, 2001

(World Press Review, December 2001)

We're at war. There has been an act of war declared upon America by terrorists, and we will respond accordingly. We will find those who did it; we will smoke them out of their holes; we will get them running, and we'll bring them to justice," said the American president, George W. Bush, on Sept. 15.

Up until now, the United States had prisons and the death penalty. Now there is a third criminal penalty-war. Accordingly, war can be viewed as a national response to a new dimension of criminality. The terror attacks in New York and Washington did not merely destroy immense buildings; they also demolished the conventional system of national justice. This new dimension of crime is to be answered with a new dimension of national punishment. If the U.S. military actions that have been announced are directed against the people behind the attackers in order to punish them, then we are speaking of revenge, atonement, repression, and prevention.

This would not be what Clausewitz called "the continuation of politics by other means" but instead the continuation of punishment by other means: in other words, the globalization and internationalization of a national penal code. Perhaps this will also give rise to new rules of war.

Bush speaks of a campaign. This is not a matter of occupying territory. Nor is it a matter of sending armed forces to overpower a foe and impose peace conditions as the victors choose. This is about the execution of criminals and those who back them. War as criminal justice: This is the multiplication and intensification of the death penalty.

Because war is a very imprecise instrument of punishment, it affects not only terrorists and their supporters but many, many other people. This is the new dimension of war as punishment: a reaction to the murder of thousands of innocent people with a war that will, in turn, cost more innocents their lives.

Punishment is reprisal: The state, in punishing, stands as the preserver of equity by employing one evil to reestablish justice. Punishment is deterrence: The punishing state, as the guardian of peace, employs an evil to frighten off potential criminals. These justifications are useful on a global scale. And it also appears that the bombardment of countries that offer shelter to terrorists can be justified by the most liberal theories of punishment: Does not using war as punishment initiate a worldwide process of the internalization of legal norms? Waging war as a way of punishing crime, as Bush has announced: Wouldn't that lead to confidence that laws will be enforced on a global level?

All of this is implied in the rhetoric of U.S. politicians. Punish, as the general welfare demands. So said Thomasius during the Enlightenment, and Bush thinks in a similar way. Does the entire panoply of criminal law, then, stand behind Bush? Those who endorse an eye for an eye, Kant and Hegel with their theories of reciprocity? No, it does not. The essence of punishment in law is not "Punish as the general good demands" but "Punish the criminal as the general good demands."

There can be no justification for punishment of noncriminals for furthering the general welfare. War as a criminal punishment therefore adds a new twist to the principle of reprisal, avenging one wrong with a similar evil. Until now the lex talionis has said that the punishment should reflect the crime. Perhaps in the future it will mean that the punishment ought to reflect the victims. The attack, and the punishment by war, then, would involve an equal number of victims.

War as a punishment has nothing to do with "an eye for an eye, and a tooth for a tooth." This principle is not open-ended; it is instead expressly designed to set limits. An eye for an eye: This is not just brutality but a matter of limiting punishment. War as punishment goes beyond such limits.

War has nothing to do with punishment as it has been understood until now. Using war as a criminal penalty has more in common with ancient rituals: Clans avenge themselves upon other clans. This is an archaic form of mourning. People find the power of death easier to bear when they make use of it themselves soon after, wrote Arno Plack in his 1967 book Society and Evil. This book contained the example of the Kwakiutl, an Indian tribe from America's Pacific Northwest. Among these Indians, head-hunting was called "kill in order to cry yourself dry." NATO and the United States should not necessarily be compared with the Kwakiutl, since the North Atlantic Alliance is writing world history today-with war-if these announcements prove true. And world history, as Friedrich Schiller wrote, "is the word's court." Schiller's sentence comes from a poem titled "Resignation." The war would then be an avenging angel, the military alliance his sword.

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