Punishing States and the Spectre of Guilt by Association

in International Criminal Law Review
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Proponents of punishing states often claim that such punishment would not distribute to members of the state, and so it would not subject innocent citizens – those who did not participate in the crimes, or dissented, or even were among the victims – to guilt by association. This essay examines three features of state punishment that might be said not to distribute to citizens: it is burdensome, it is intentionally so, and it expresses social condemnation. Ultimately, I contend that when a state is punished, the burdens do distribute to citizens as intended, condemning burdens – that is, as punishment. Thus the nondistribution of punishment thesis fails as a response to the guilt-by-association objection.

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References

5

Lang, ‘Crime and Punishment,’ ibid., p. 250; Luban, ibid., p. 90.

24

Erskine, supra note 9, p. 276.

25

Pasternak, supra note 9, p. 217.

30

Luban, supra note 4, p. 90.

31

Lang, ‘Crime and Punishment,’ supra note 4, p. 250.

33

Lang, ‘Crime and Punishment,’ supra note 4, pp. 239–240.

34

Pettit, supra note 19, p. 194.

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