The Convergence Between Punishment and War: A Critical Appraisal

Abstract

Conventional legal thought classifies state violence into two distinct categories: punishment and war. Each is governed by a separate legal regime – criminal law and the law of armed conflict – marked by divergent rationales, doctrines, and institutional frameworks. In recent years, however, scholarship has pointed to a certain convergence between these domains. This Article aims to map, assess, and critically examine this trend. It proposes to distinguish between three types of convergence: (1) hybrid legal tools introduced to address phenomena that resist clear classification, such as terrorism; (2) appropriation and borrowing of language and concepts from one domain into the other; and (3) parallel trends unfolding within each regime separately, possibly shaped by shared political logics. For each of these types, the Article also critically assesses the limits of convergence and shows how criminal law and the law of armed conflict continue to preserve distinctive features and maintain the boundaries between them. It concludes by suggesting that the degree of separation and distinction between these domains is historically contingent and depends on the perceived rigidity of the boundaries between communities. When such boundaries are viewed as fixed and impermeable, such as in a world order governed by nation-states, a clear division between punishment and war tends to hold. Conversely, when those boundaries are blurred, the two domains increasingly merge.