Reflections on Law and Punishment  

Law and punishment are very different concepts and should not be unduly amalgamated.  The function of law is the codification of norms, definition of rights and obligations, creation of mechanisms for monitoring and enforcement.  Law must be both preventive and curative.  It should be proactive and not merely reactive.

Punishment is always ex post facto and therefore an unsatisfactory “Plan B”, after Plan A has failed.   It is far more important for law to lay down safeguards so as to avert the breach of law and irreparable harm.  It is perhaps bizarre that recently many human rights activists, non-governmental organizations and the bulk of the media have embraced punishment as a kind of favourite Kalashnikov.  The Zeitgeist has embraced an over-simplification – punishment as the principal legal tool, as a weapon of fear and deterrence.  In their binary world of good and evil, the latter must be suppressed through “lawfare” and what seems more apparent than ever – the instrumentalization of the International Criminal Court to target some, but not all criminals.

The letter and spirit of the law requires, however, that law be much more than meeting out penalties and sanctions against those who do not observe the established administrative, civil and criminal regimes, which are man-made and, in many situations, constitute very imperfect or even deliberately unjust regimes that perpetuate imbalances and protect privilege.  Natural law and common sense require that codified law be modified so as to take the evolution of society into account and ensure that Justice prevails.

There is a peculiar fetishism about the concept of punishment as an essential part of Justice. However, this simplistic concept has always been flawed, because multiple factors other than culpalead to a breach of the law. The “lex talionis” (an eye for an eye) has no place in enlightened societies.  Indeed, punishment can be considered a legitimate tool only if it has a deterrent effect,and if it educates society how to better live together.  There is deterrence when one knows that illegally parking and exceeding the speed limits are risky activities, and if the perpetrator is caught then traffic tickets or fines eloquently drive the point. Yet, when punishment becomes mere revenge, the result may well be counter-productive and engender greater injustice and instability.  What is important is to break the vicious circle of violence and repression.

Experience shows that punishment has all too often been applied selectively and has been used as a weapon of domination.  Neither law nor Justice are mathematical sciences.  Both are anthropocentric and must serve humanity by facilitating moral and material rehabilitation of the criminal and reconciliation with society. Of course, victims of injustice, victims of violence, victims of human rights violations have a right to recognition, respect and reparation. Such can be achieved through truth commissions and peoples’ tribunals and does not always require putting the perpetrators behind bars.

Seeing the perpetrators of a breach of law punished does not undo the offence, does not necessarily advance the goal of preventing future offences, nor does it strengthen a peaceful society based on law, mutual respect and ethical values.

Moreover, the law must not discriminate among victims. The concept of a hierarchy of victims, the “sorting out” of victims, the competition among victims are all unworthy of a legal order aimed at achieving Justice.  When the law creates categories of victims that are “politically correct” and tolerates that other victims are ignored, it corrupts the concept of Justice, because all victims deserve our attention and compassion.  All victims are equal in their human dignity and deserve recognition and reparation, without discrimination.

Just as law and Justice are not coterminous, the concept of law should be decoupled from that of punishment. But whenever punishment is imposed, the courts must demonstrate that such punishment will be met uniformly to all who have broken the law.

In this context, it is worth recalling that, at the opening of the Nuremberg Trials in October 1945, United States chief prosecutor Robert Jackson stated:

 “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow … While this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn, aggression by any other nations, including those which sit here now in judgment.” (IMT, Nuremberg, The Trial of the Major War Criminals, Vol. 2, 21 November 1945, p. 101.)

In this sense the 1946 Judgment of the Tribunal stipulated that “To initiate a war of aggression … is … the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole” (IMT Vol. 22, p. 427). 

Unfortunately for all humanity, the noble words of Robert Jackson and the Judgment of the Tribunal did not result in deterrence of aggressive war, did not educate the world in the ways of peace.  Unfortunately, those same countries who sat in judgment over the Nazi war criminals themselves continued pursuing their geopolitical and geoecvonomic agendas, continued starting wars of aggression and committing egregious war crimes.  The lessons of Nuremberg were not learned.

Pax et Justitia

The motto of the International Labour Organization, si vis pacem cole justitiam – if you want peace, cultivate Justice – expresses a fundamental truth that many politicians have pondered on but somehow failed to implement.  Indeed, if there is no social justice, if laws do not fulfil their preventive and curative functions, domestic and international conflicts inevitably result.  That is why law is crucial in providing a solid framework and educating society about those fundamental human rights and freedoms that will gradually advance humanity toward Justice and Peace. We need education for peace and empathy, education in the spirit of the UN Charter and the UNESCO Constitution.  Pax et Justitia must become the tangible cultural heritage of humankind.

Alfred de Zayas is a law professor at the Geneva School of Diplomacy and served as a UN Independent Expert on International Order 2012-18. He is the author of twelve books including “Building a Just World Order” (2021) “Countering Mainstream Narratives” 2022, and “The Human Rights Industry” (Clarity Press, 2021).