Humanitarian intervention, while controversial, has become more acceptable as a reason for using military force in the last twenty years. But humanitarian intervention may be giving way to a related, yet distinct, form of intervention. This new form of intervention is characterised by a desire to punish wrongdoers, whether they are individual leaders or whole states, a phenomenon I call punitive intervention. Punitive intervention can be defined as the use of military force across national boundaries to alter the internal affairs of a state that has violated international law or other widely recognised international norms. A punitive intervention aims to deter future violations, to rehabilitate the offending state (usually by replacing its government), or to exact retribution.

US interventions in Panama (1989), Haiti (1994) and Somalia, especially to capture Mohammed Farah Aideed (1993), could be called punitive, as could the use of air power in Libya (1986) and Iraq (1993, 1998). The ongoing Russian intervention in Chechnya has a punitive dimension. The belated French intervention in Rwanda (1994) had punitive aspects. The NATO intervention in the former Yugoslavia has generated debate over whether or not the major powers should be in the business of capturing war criminals. The use of coercive air power by NATO against Serbia in 1999 sought to halt the violations of Albanian human rights but also to punish those responsible, particularly Slobodan Milosevic. The Israeli incursions into Lebanon (1982, 1996), like its campaigns since 2000 in the occupied territories, were partly designed to punish those who threaten Israeli security. The calls for intervention in Liberia in 2003 were in part humanitarian, but there was also an underlying desire to capture and punish President Charles Taylor. Finally, the US interventions in Afghanistan and Iraq following the attacks of 11 September 2001 have been couched largely in terms of punishing the states that allowed terrorists to operate on their territory and capturing those directly responsible. Indeed, the war on terrorism, which the Bush administration argues will be a long-term conflict, is punitive as well as preventive.

This use of military force to punish reflects an important normative shift in the international system. International law prohibits the use of force to punish; indeed, the concept of punishment is largely absent from international law.

The crime of genocide deserves punishment, but should natural persons be punished for a crime that requires an organized, political structure? The Nuremberg legacy and creation of international criminal courts since the 1990s suggests that people should be punished for genocide. Is this legacy preventing the international community from considering alternative sanctions? Should states be sanctioned for the crime of genocide? What institutional changes would be necessary to punish states for crimes such as genocide? This chapter probes these questions through a critical reading of the February 2007 judgment from the International Court of Justice (ICJ) concerning the responsibility of Serbia for genocide in Bosnia and Herzegovina.

My answer is that states should be subject to punishment for the crime of genocide, but this necessitates understanding how states are corporate agents and then recasting the international legal order such that these agents can be formally tried and sentenced for the violations they commit. In the first part of the chapter, I review the distinction between collectives and corporations through an engagement with other chapters in this volume, arguing that the former cannot be punished in the way that the latter can. The next section examines the logic underlying the ICJ decision to support the point that states qua corporate entities should be subject to punishment. Although the ICJ did not hold Serbia responsible for genocide in this particular case, they did affirm that states can be held responsible for genocide.