Kicking bodies and damning souls: The danger of harming “innocent” individuals while punishing “delinquent” states

The problem with trying to punish an institution that is judged to be “delinquent” – whether a “rogue state,” the United Nations (UN), Shell Oil, or the U.S. Army – might be understood as one of responding to an entity that (to invoke Edward, First Baron Thurlow's eighteenth-century account of the corporation) “has no soul to be damned and no body to be kicked.” Perhaps this seems a fairly obvious point. After all, even if one can draw some carefully qualified analogies between individual human actors and institutions (as I attempt to do in the first part of this chapter), the two types of entity are different in important ways. One might thereby conclude that the corporeal – and, depending on one's beliefs, even the spiritual – nature of individual human actors renders them vulnerable to forms of punitive harm to which institutions, in the sense of formal organizations, are simply impervious. Alternatively, one might maintain that such an observation has little relevance when we are talking about “delinquent” institutions in international relations. We do not, one might argue, need to be able to anthropomorphize formal organizations to be able to punish them. Indeed, we frequently justify actions toward states, multinational corporations, and intergovernmental organizations in terms of punishment, and these actions often serve successful deterrent, retributive, and even rehabilitative functions. In this chapter, I want to take a path somewhere between these two responses to the idea of punishing institutions.