Financial Penalties: Punitive Sanctions and Confiscation

Another way to do so, in some contexts, is via financial penalties, of which there are broadly two kinds: the confiscation of property on the one hand, and punitive sanctions on the other hand. I reject the latter, but cautiously endorse the former.

Punitive sanctions extracted via taxes might seem a better way to distribute the punitive costs of participating in an unjust war through a democratic citizenry.[1] They differ from reparations in that they go beyond what is owed to victims on ground of fault or unjust benefit. In principle, adding them to the reparation bill might seem a morally justified way to reflect the judgement that many more agents than can feasibly be punished through war-crime trials are responsible for war-related crimes.

I am sceptical, for reasons similar to those adduced against implementing the Reparative Principle (s.6.3.2). Taxpayers who are wholly innocent of participating in war-related crimes will inevitably be harmed by punitive sanctions, at least to the extent that the taxation system will not be able properly to discriminate between those who are liable to punishment and those who are not. This will be so whether the tax base is contributors’ ability to pay or (regressively) a flat levy on purchases. Either they will have to pay more taxes for the same level of state provision than they would have had to pay absent punitive sanctions, or they will pay the same amount of taxes but will receive less by way of state provision than they would have done otherwise. Being innocent of war-related crimes, those taxpayers have not forfeited their rights to those resources and thus are not liable to be so harmed.

To be sure, as a matter of fact, it may be possible to identify taxpayers who are liable. I shall argue presently that their estate ought to be confiscated. When identification is not possible, the question is whether it is permissible all things considered to catch the innocent in the net of punitive sanctions. Here, we are presented with two options. Either we respect the rights of the non-liable and do not impose punitive sanctions at all, at the cost of letting wrongdoers go unpunished; or we confer priority to the punishment of wrongdoers at the cost of infringing the rights of the non-liable. We encountered a similar problem in s.6.3, when discussing non-punitive sanctions. There, I argued that some taxpayers are likely to have been victims of the war—and not just innocent of its wrongdoings—and that it is not appropriate to ask them to pay up. The point applies here too.

Contrastingly, punitive confiscation is not vulnerable to this charge. It can range from complete confiscation such that the property owner permanently loses all her rights over the property, to partial confiscation where she temporarily loses some of her rights (notably rights to use and to derive income from the property) but retains other rights, or temporarily loses all and regains them a few years later either unconditionally or against payment. Partial confiscation of the latter kind was carried out by the English Parliament against Royalists during the Civil War, partly as a way to finance the war, partly as a punitive measure against those it called ‘delinquent’ but who were allowed to recover their estates subject to paying for it at (a rather generous) 10 per cent of their market value. Wrongdoers who are liable to imprisonment but whom there are good (aforementioned) reasons not to send to jail are not wronged by the confiscation of their property (so long as they are not left wholly destitute). Wrongdoers who are liable to punishment lesser than imprisonment may well be liable to the loss of some or all of their property rights. In principle, there seems to be nothing particularly problematic about this particular punitive measure.

It is however a targeted measure, whose implementation depends on being able to identify who committed which wrongdoings, how many assets they have, and so on. The example of the English Civil War is particularly illuminating on this point: the two committees set up for, respectively, organizing confiscation and processing back-purchases morphed into a rather cumbersome bureaucracy funded by resources which might and should have been better deployed elsewhere, for example towards the relief of poverty.[2] Hence a final, cautionary note: punitive confiscation is a morally justified alternative to imprisonment so long as its implementation does not unduly divert resources away from the reconstruction effort.

  • [1] See, e.g., Walzer, Just and Unjust Wars, 296—7.
  • [2] For a discussion of this example, see D. L. Smith, Constitutional Royalism and the Search forSettlement (Cambridge: Cambridge University Press, 1994), 202—8. I am grateful to Noel Malcolm fordrawing my attention to this case.
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