Violence of war

Arguably, there is no other attribute of human interaction that has had a greater impact upon politics and societies than violence of war. Despite preoccupying many great minds from Heraclitus to Machiavelli, from Clausewitz to Hegel and Arendt, to whose works present writers make continuous reference, when it comes to understanding the phenomenon of war, or drawing lessons from a war, or contemplating consequences or alternatives therein, the preliminary questions: ‘What is violence?’ and ‘What is war?’ remain challenging to address. It is therefore necessary to back up one step and engage meaningfully with the interpretation of key terms, namely, violence and war. At an elementary level, violence may be understood as ‘an intentional act designed to cause harm [to an individual or a group] which is direct and physical or psychological’.Footnote ¹⁰ It bears emphasising that violence comes with intent, the wilful decision to harm another. If someone is hurt in an accident, that accident is not described as violence. Hence, ‘it is the intent … that defines violence and its relationship to political will’.Footnote ¹¹

War itself is a form of violence in the sense that war belongs to a category of human experience, more specifically human contests, whose activity is intense, reciprocal injuring with the goal of out-injuring the opponent.Footnote ¹² War is a contest that entails ‘reciprocal activity for nonreciprocal outcomes, with the weight of intention and motive located in the final facts, the nonreciprocal outcome, the unique form of “ending” that, more than any other part of war, makes it what it is and compels people to seek it as a form of arbitration when all else has failed’.Footnote ¹³ As Christine Sylvester argues, ‘war is a politics of injury; everything about war aims to injure people and/or their social surroundings as a way of resolving disagreement or, in some cases, encouraging disagreement if it is profitable to do so’.Footnote ¹⁴ Like Scarry, Sylvester understands injury to be the content of war, not a regrettable consequence of the ‘normal’ violence of war.Footnote ¹⁵ Injury is war’s product and its cost, it is what every exhausting piece of strategy and every single weapon is designed to bring into being; it is the relentless object and outcome of all military activity, of all violence of war.Footnote ¹⁶ ‘Violence of war’ in the context of this contribution is a broad term that includes collective and individual violence in the course of war, intense and reciprocal fighting in war, asymmetrical violence against civilians – such as genocide, ethnic cleansing, rape, and other dehumanising acts of war, and their ensuing effects. It is intentionally a broad term that captures a wide range of violent acts that are constitutive of war.

Forty-eight years ago, Hannah Arendt lamented ‘a certain deafness to linguistic meanings’ pertaining to the interchangeable use of key terms such as ‘power’, ‘force’, and ‘violence’, which she thought results ‘in a kind of blindness to the realities they correspond to’.Footnote ¹⁷ Although realising that force, power and violence are ‘the means by which man rules over man’Footnote ¹⁸ she was adamant to differentiate among these terms. Force, for instance, she suggested, should be reserved for the ‘forces of nature’, or the ‘force of circumstances’Footnote ¹⁹ – a suggestion that has not been embraced by students of violence and/or war as they indeed continue to use interchangeably ‘violence’ and ‘force’.Footnote ²⁰ Arendt insisted – too – on a strict demarcation of ‘violence’ and ‘power’. Unlike C. Wright Mills who, echoing Max Weber, viewed violence as the most flagrant manifestation of power, the ultimate kind of power,Footnote ²¹ Arendt suggested that violence and power are opposites, ‘where the one rules absolutely, the other is absent’.Footnote ²² Contrary to Hegel and Marx, who endorsed the dialectical power of negation according to which opposites do not destroy each other but smoothly develop into each other, Arendt stressed that violence cannot be derived from its opposite, which is power. ‘Violence can destroy power’, she wrote, ‘it is utterly incapable of creating it.’Footnote ²³ Clearly for Arendt boundaries of violence and power are not permeable, a claim that will be questioned in this article. Power, for Arendt, is like peace – an absolute, an end in itself. But unlike power and peace, violence ‘always stands in need of guidance and justification through the end it pursues’.Footnote ²⁴ The most obvious distinction between power and violence is that ‘power always stands in need of numbers, whereas violence up to a point can manage without them because it [violence] relies on implements’,Footnote ²⁵ which ‘like all other tools, increase and multiply human strength’.Footnote ²⁶

In Arendt’s understanding the very substance of violent action is ruled by the means-end category, whose main characteristic is taken to be that the end is in danger of being overwhelmed by means which it justifies. Violence is by nature instrumental.Footnote ²⁷ This emphasis on the instrumental aspect of violence is the most illuminating observation Arendt made on how violence may be understood. By viewing violence as instrumental, she shared a common ground with Carl von Clausewitz, who nearly a century and a half before her, came to the conclusion that the essence of war is fighting.Footnote ²⁸ Indeed, fighting is central to the ontology of war. Fighting and violence of war is that which thematically unifies war in general and in particular – ‘war’ with ‘wars’.Footnote ²⁹ Violence of war cannot be understood outside its instrumentality.

Even the legislation of a substantial body of international law such as the Hague Conventions on the Laws of War and the Genocide Convention – that aim to prescribe and guide conduct of armed forces in war, how they could treat each other as well as populations in occupied, enemy territories – has not managed to wrest the centrality of the instrumentality of violence from the common understanding of fighting/war.Footnote ³⁰ A snapshot of the literature on war makes clear that instrumentality of violence is the single most pervasive theme in considerations of any war, be it in the form of concerns for security, military necessity, or bureaucratisation of violence. Indeed, violence of war is constantly justified and interpreted through the prism of instrumentality.

It is not unreasonable to suggest that the primacy granted to instrumentality of fighting has led to an understanding of fighting and violence of war as ‘kinetic exchange’, as the test of arms, and at the same time it has rendered the study of war – as a discipline – into a strategic, instrumental, rather than political and social, science preoccupied with how to prevail in war, and how to use implements of violence to attain interests and ends sought.Footnote ³¹ For Hannah Arendt – too – violence is a marginal phenomenon in the political realm, because violence is incapable of speech. What makes a human a political being is the power of speech, and it is due to violence’s speechlessness that, she thinks, political theory has little to say about violence. Because Arendt conceives violence as constituting the limit of silence and spelling the end of power, she opines that violence should be situated outside the arena of political thought.Footnote ³²

The interpretation of violence as speechless is, however, curious. It may even be considered as ‘inexcusable, for it is as if professional political theory is incapable of learning to think in pain or even that it has forgotten the experience of pain’.Footnote ³³ Violence of war may produce an immediate, yet temporarily, silencing effect among those subjected to its cruelty. But survivors do seek a way of resistance. Speech and writing was forbidden in the concentration camps, ‘yet also withheld, preserved, protected against all … violent abuse that might have exposed it to the suspicion of playing along with boundless violence’.Footnote ³⁴ Never is physical visibility of violence silent. Violence, always, has signalling effects; it communicates messages. Violent acts carry symbolic and performative effects, which those subjected to violence – unlike some (unaffected) observers – usually do not miss out. So, to the question: what does instrumentality of violence occlude? An immediate answer is: the performative effects of that very violence. Instrumentality overlooks the capacity of violence to transmit messages, to signal effects, to act as a communication tool.

There is a continuum of surfaces and spaces through which messages of violence are communicated: from the violence of speech to the bodies of individuals, to territory, to the bodies of (inactive) international organisations that form part of the international community. Ann Norton likens acts of violence to acts of speech and writing in the sense that acts of violence invest the material with meaning. ‘In its inscription of will on the world, violence is a significant act, giving expression and authority to identity and will.’Footnote ³⁵ A few examples suffice to contextualise this point. When advancing armies burn houses, kill and rape a group of civilians in a captured village, the message to the survivors is: ‘Leave!’ Rape is not only intended to assault the body; it also conveys an emotional trauma, ‘an attack against family, dignity, self-worth’.Footnote ³⁶ Defrocking of a priest and burning of liturgical books upset a system of symbols that peasants use as a bridge between spirituality and everyday existence.Footnote ³⁷ Violent targeting of a church, a mosque, or a synagogue in a multi-ethnic community undermines communal coexistence and politicises inter-ethnic differences. Dehumanisation of the victim/s can be a path to mass killing, legitimation of violence, or control of a population and territory.

The human body – which is itself a repository of meaning – provides a medium for transmitting a message of hegemony, territorial or otherwise, by acts that offend human dignity, infliction of pain and humiliation, or by draining life out of it sometimes on public display for terror effect. Violence is inscribed in the body. Indeed, the human body fulfils an array of functions. It can be a locus for violence and domination through stigmatisation and/or penetration, a site for the expression of suffering through identification, or a vehicle for the manifestation of the effects of domination.Footnote ³⁸ Christine Sylvester has compellingly argued that the human body is a biopolitical and physical fact of war, ‘a performative arena, an imagined presence in war, and a key target and site of collective violence’.Footnote ³⁹ War is experienced through the body, ‘a unit that has agency to target and injure others in war and is also a target of war’s capabilities’.Footnote ⁴⁰

The purpose of violence of war, injuring of human bodies and minds, past its instrumentality to include performative, symbolic and/or communicative effects. The idea of performativity draws attention to the fact that reiterative practices of violence – physical and discursive – contribute to producing the effects that such practices name or vest with higher value, be it: breaking and recasting of existing social/communal relations; acquiring new forms of control over a territory and population; creation of a new nation; or extermination of a dehumanised group. Violence of war consists not only in injuring and annihilating persons, but as Emmanuel Levinas opined also ‘in interrupting their continuity, making them play roles in which they no longer recognise themselves … [in an] order from which no one can keep his distance’.Footnote ⁴¹ This is because violence of war makes it difficult for one to remain a bystander or avoid taking sides; at the same time it makes one more aware of one’s ties with a larger community outside one’s immediate vicinity. Violence can be viewed as a boundary-creation mechanism; it unmakes an old order to remake a new one. Hence, the generative powers of violence of war, in terms of transforming polities and identities, and even conditioning systems of knowledge about war as will be shown below.

This section has considered how violence of war may be best understood. Hannah Arendt (and Carl von Clausewitz) suggested that central to the understanding of violence of war is its instrumentality. But instrumentality is not all that violence of war is about. An insistence on the understanding of violence as exclusively a relation between means and ends overlooks the performative aspect of violence, its capacity for communication and for being a generative force – a mechanism for unmaking and remaking of sociopolitical orders, a mechanism for change. Instrumentality, with its focus on the instrumental function of violence, is an elitist intellectualisation of war that excludes and silences the lived experience.Footnote ⁴² With Sylvester, I understand experience as ‘the physical and emotional connections with war that people live’.Footnote ⁴³ And it is through the human body that war is experienced. Bodily injury is the interior content of war not merely its unfortunate consequence.Footnote ⁴⁴

Making explicit the centrality of the body in the war experience helps offset the elitist intellectualisation of war with its disproportional focus on statist and structural factors. Moreover, the body provides a potential venue for linking levels of analysis in ways that offer a more complete picture of the war phenomenon, not least because war, body, state, and political community – the nation – are all interwoven. In times of peace – and frequently in times of war – human bodies reside, have a physical presence, within the boundaries of their respective state (this is what one’s citizenship entails). In addition, the nation is ordinarily registered in the human body and speech – the native language, music, dance, a particular kind of handshake or salutation. In the course of war, the body is the site and target of violence. Bodies kill and die motivated by care for the nation and duty of service to the state. Yet, despite bodily injuries constituting war’s content, and the interweaving of war, body, nation, and state, IR interpretations of war – and violent conflictFootnote ⁴⁵ in general – are virtually devoid of direct considerations of performative aspects of violence of war. The ensuing analysis aims to explain what counts for this neglect.

Ontopological formulations of conflict analyses and responses

In the prevailing interpretations of conflict and war there is a limited realisation that violence of war, on which construction of the political community is grounded, is enabled by a settled, modern norm of international society, namely the norm of territorial and cultural alignment with its nexus between sovereignty, security, and identity.Footnote ⁴⁶ The congruity of territorial boundaries of modern states with the cultural identity of their population is an attribute of the ideology of nationalism. Progressively consolidating its dominant position in western Europe since the French and American revolutions, this ideology has swept the globe injecting into politics a profoundly significant ideal, the principle that national and state boundaries should coincide, that is, that the state should be nationally homogenous, and the nation should be politically united.Footnote ⁴⁷

What needs emphasising is that the ultimate goal of nationalism – the establishment of a nation-state – requires political and social processes that cannot easily be detached from violence. This is because instituting the primacy and will of the nation as a source of political legitimacy requires social homogenisation – cultural, linguistic, and frequently religious unity – which can be attained only by violent means, physical, and/or symbolic.Footnote ⁴⁸ The naturalisation of the nexus of territory and identity requires a great deal of work and necessitates the worst violence. David Campbell rightly notes that the idea that the national community requires the nexus of demarcated territory and fixed identity has been complicit in, and necessary for, the conduct of war. The reason for this is that ‘inscribing the boundaries that make the installation of the nationalist imaginary possible requires the expulsion from the resultant “domestic” space of all that comes to be regarded as alien, foreign, and dangerous. The nationalist imaginary thus demands a violent relationship with the other’.Footnote ⁴⁹ It is this conjunction of territory with population identification that gives rise to an order of representation that – with Jacques Derrida – Campbell understands in terms of ontopology.Footnote ⁵⁰

Reflecting on the violence ensuing the end of the Cold War, Derrida opined that:

This section emphasises the circular nature of the relationship between ontopology and the instrumental aspect of violence, in the sense that not only has ontopology inspired some of the most exclusivist and instrumentally violent forms of human behaviour, but ontopology has been applied – too – to justify use of violence to enact an ontopological goal. For example, ethnic cleansing – forced expulsion of minorities, even genocide – intentional extermination of targeted ‘others’ – have been a result of the above logic, that is, the ontopological conjunction of territory and identity driven by the conceptual phantasm of national community, in most cases justified on the grounds of securing security of the state and the nation that provides its (that is, state’s) source of political legitimacy. The twentieth century may be characterised as an ethnic cleansing century given the massive forced movement of peoples, and genocides from that of the Armenians, to the Holocaust, to the Tutsis, to the Bosnian Muslims – virtually all rationalised by ontopological interpretations that essentialise congruence of territory with identity of population that control it, interpretations that are justified by a conception of security that prioritises the nation state as the referent of security.Footnote ⁵² What is even more perplexing is the fact that the privileging of the nation state in terms of the provision of security has not only been embraced as a policy option, but has found the backing also of international legal experts. For example, according to International Law Professor Ian Brownlie, the expulsion of fourteen million Germans in the aftermath of the Second World War ‘may be justified as a part of the sanctions and measures of security imposed by the principal members of a coalition which had fought a lawful war of collective defence against Nazi Germany’.Footnote ⁵³ In his view, the act of expulsion was justified because the Allied Powers sought to prevent future threats to peace and security.Footnote ⁵⁴

The ontopological rationale of violence has permeated both the structures of intelligibility and response strategies that are supposed to contain violence. In point of fact, adherence to ontopological assumptions has frequently underlined international community’s responses to violent conflicts which, in turn, have either been conducive to more violence or have strengthened the nationalists’ imaginary of phantasm of national community, borders, native soil, blood, body in general – as Derrida noticedFootnote ⁵⁵ – and its (implied) nexus between territory and identity. International diplomacy and Great Powers’ foreign policies have been among the most important sites via which nationalised conceptions of political community have affirmed and materialised. Suffice it to mention two representative categories of policy responses, namely the so-called population exchanges/transfers, and partition of territory.

Mass uprooting of peoples, and consequently mass refugee movements, as a strategy of political control is a very old policy practice.Footnote ⁵⁶ But it is in the nineteenth century, with the advent of nationalism, that it became imperative for governments to ‘bond together disparate sections of restless peoples’ and an effective approach to achieving this was to ‘unite them against outsiders’. The largest mass migration within and between states in recorded history took place between 1880 and 1914.Footnote ⁵⁷ The idea of a population exchange – as a matter of policy – featured for the first time in a protocol annexed to the peace treaty between Bulgaria and Turkey at the end of the Second Balkan War signed at Constantinople in September 1913.Footnote ⁵⁸ This idea was endorsed – too – at the Paris Peace Conference following the end of the First World War. A special Convention concerning Reciprocal Emigration between Greece and Bulgaria was ratified in August 1920.Footnote ⁵⁹ Furthermore, the 1923 Lausanne peace treaty that ended the Greeco-Turkish War provided for a compulsory exchange of Turkish and Greek minorities, a brutal practice that affected more than two million people who, under duress, crossed national frontiers.Footnote ⁶⁰ These policies of population ‘transfers’ set a dangerous precedent for the future. Adolf Hitler himself embraced with zeal this idea and became one of its leading advocates and practitioners, seeking to populate the occupied territories with German kin.Footnote ⁶¹ The notion of population transfers resurfaced in Bosnia and Croatia during the Second World War and also in the early 1990s following the disintegration of the former Federation of Yugoslavia with further untold suffering and bloodshed.Footnote ⁶² This brief historic overview shows that the logic of ontopology has been used consistently to rationalise violence as a means to enacting an ontopological goal.

Not only ontopological understanding and explanation of violent conflict – and, generally, war – have informed international policy responses, but ontopological assumptions have underpinned – too – certain academic propositions about (so-called best) responses to war. One such proposition was postulated in relation to the Bosnian War by two Professors of International Relations – John Mearsheimer and Robert Pape – who argued that saving Bosnia required shrinking, that is, partitioning it.Footnote ⁶³ An ardent advocate of partition, Mearsheimer extended his partition thesis also to the case of Kosovo, as his response to the heightened conflict between the Albanians and the Serbs in late 1990s.Footnote ⁶⁴ Furthermore, with his colleague Stephen van Evera, Mearsheimer extended this prescription to the conflict in the Republic of Macedonia in the light of the clashes there between Macedonian and Albanian communities in 1999.Footnote ⁶⁵ Moreover, partitions in the former Yugoslavia appear to have influenced the possibility that Iraq would be divided too by shaping international attitudes therein.Footnote ⁶⁶ At the height of the Iraqi Civil War (2006–7), faced with intensifying violence against civilians, distrust among Sunni, Shiite, and Kurdish groups, and feeble progress with state building, policymakers, and analysts turned to ideas about partitioning the country.Footnote ⁶⁷ In addition, interpretation of the ongoing Syrian War as an intractable conflict – not related to the national interest of the Western Powers – has led not only to lack of meaningful intervention, but also to calls for partition. The former US Secretary of State – John Kerry – stated on 23 February 2016 in the US Senate Committee on Foreign Relations: ‘it may be too late to keep Syria whole’ and suggested that ‘Washington would support partition if ceasefire is unsuccessful’.Footnote ⁶⁸

The problem with the scholarly and diplomatic partitionist logic that adheres to ontopological assumptions is that they enforce the nationalist and extremist imaginary of the nexus between identity, body, and territory. Partitioning countries and redrawing maps are not likely to put a break to violence; rather they are conducive to it. Redrawing borders rarely resolves conflict.Footnote ⁶⁹ Even when partitions resolve one particular source of conflict, they create several others. In particular, partitions always leave behind residual members of the rival ethnic group within boundaries of the new state which in numerous cases has led to further resistance, violence, and ethnic cleansing.Footnote ⁷⁰ This indeed is the case with partitions following disintegration of empires or federal states.Footnote ⁷¹ The ontopological academic and policy prescriptions for redrawing boundaries misrepresent a world characterised by cultural heterogeneity. At the same time, in their elusive drive toward the fleeting dream of ethnic purity, such prescriptions miss the fact that maps are more than the territory they purport to represent. The notion of an objective map, especially one that claims to represent ethnic groups in situ, is pure fiction. The maps are depictions and, by implication, assertions of territoriality.Footnote ⁷²

A map, as an apparatus of territoriality, when applied to the principle of national determination, creates nothing less than the spatial definition of a nation – its ‘geo-body’ – not necessarily its current shape but the territory it should occupy. As Tongchai Winichakul convincingly argues, maps do not follow the social reality of a nation dispersed across delimited domains; they are not depictions of something that already exists but predictions of it.Footnote ⁷³ The boundaries on a map – drawn through the destruction of human bodies they incur in the process – are constitutive of the reality they purport to represent. Styled in the image of an unfortunate but necessary realism – that advocates the (fictitious) view that partition will resolve conflict permanently – the partitionist logic embodies instead a dangerous idealism that is likely to produce the very outcomes it seeks to avoid, namely more disputes, bloodshed, and destruction of bodies.

Instrumentality of violence is embedded in ontopological understanding and interpretations of violent conflict that reify the congruence of national identity, state security, territory, and human bodies that inhabit it. Ontopology has both inspired some of the most exclusivist practices of human behaviour and justified violence to enact an ontopological goal. In particular, ontopology has naturalised instrumental violence as a means of constitution of the political community defined in national terms. At the same time, ontopological interpretations of war and ontopological rendering of policy responses have occluded the role that violence has played – as an independent variable – in the constitution of the political community, in particular obscuring the performative aspect of violence in the creation of the most pre-eminent community – the nation/state. It is not implied here that the ontopological narrative can be easily dismissed, but that its foundation, its ground, is performatively constructed through reiterative violence and constative declarations that render violence central to policy and diplomacy.Footnote ⁷⁴

The body and violence of war, peace, and law

The overlooking of violence’s performative power can be traced to an important omission within the hegemonic IR interpretations of war, namely the human body and the role of bodily injury in war and its aftermath. In point of fact, for many scholars bodily experience seems as a ‘distinctly unIR-like place’ to begin contemplating about war ‘despite the many hints across the IR canon that war is peopled and not just an abstract politics and technology of extreme disagreement’.Footnote ⁷⁵ Indeed, that IR canon in general has not been interested in the human and its body ‘is evident in … habitual exclusion of the … corporeal from most of its theories’.Footnote ⁷⁶ This is a consequential omission which directly undermines the very understanding of the essential structure of war, namely the juxtaposition of the extreme facts of body and voice, or said differently, the relation between the interior content of war, the collective casualties that occur within war, on the one hand, and, on the other hand, the verbal issues (claims pertaining to sovereignty, security, authority, identity, and ideology) that stand outside war, that exist before the act of war begins and after it ends.Footnote ⁷⁷

Any dispute that leads to war involves a process wherein each side seeks to question the legitimacy – and erode the reality – of the opponents’ beliefs, self-worth, and self-conception. War is not only an intensification of dispute, it is also a correction and/or reversal of it. This is so because the injuring ‘provides, by its massive opening of human bodies, a way of reconnecting the derealised and disembodied beliefs with the force and power of the material world’.Footnote ⁷⁸ Put differently, at the end of the war the injured bodies provide the material base for the winning, or dominant, construct until there is time for war parties to consent and enact that winning construct, make it real. Scarry is right to note that injuries-as-signs point backward and forward in time: in the first instance, they make visible an activity that is past and hence have a memoralisation function; in the second instance, they refer to the future, to what has yet to come and therefore have a reality-conferring function.Footnote ⁷⁹ Injuring, thus, can be thought to rely on a form of legitimisation because wounding is ‘able to open up a source of reality that can give the issue force and holding power’. In other words, the outcome of war has its substantiation in ‘a process of perception that allows extreme attributes of the body to be translated into another language, to be broken away from the body and relocated elsewhere at the very moment that the body itself is disowned, made to disappear’.Footnote ⁸⁰

In the course of war, violence destroys material culture, bodies, and (elements of) consciousness – a destruction that facilitates a perceptual reversal of (some) claims, issues, or elements of self-understanding that had previously grounded comprehension of national identity. This surrogate form of contest – surrogate because it differs from violence of war as there are no injuries to bodies or their surroundings – enables the work of war to be accomplished in the interior of human consciousness. In the aftermath of war, warring populations – via this surrogate contest – begin to re-imagine, re-understand, re-experience themselves, and re-believe in themselves. Therefore, the performative violence of war remains active in moulding the political community even after the guns fall silent. If in the course of war violence deconstructs, unmakes an old order, in the aftermath of war effects of violence – particularly as manifested in the surrogate contest of re-imagining community – become part of a constitutive process that remakes and/or justifies the new postwar order. This is the mark of the generative force of war, its capacity to confront those who experience it with ‘the need to create – and contest – its meaning in ways that do not terminate with cessation of physical violence’.Footnote ⁸¹ It is through the creation of meaning of war, for instance via commemorations of suffering as well as narratives of crimes and other conduct in the course of fighting, that war violence continues to contribute to the constitution of political community in the postwar setting.

Numerous works have emphasised the power of commemorations to draw upon the sacrifice and loss occasioned by war as a means of shaping national identity and preserving, or challenging dominant elites and ideologies within a given state.Footnote ⁸² Suffering caused by violence of war can be central to the identity and symbolic continuity of a nation. A nation ensures its symbolic continuity by construing its members as forming an imagined community that surpasses death and suffering of war, whereby the living generations feel their connection with the dead co-patriots thus securing the nation’s imagined continuity and transcendence of ti19me.Footnote ⁸³ Memory and commemoration are crucial to the production of this context. The ceremonies and heroes they venerate are the embodiment of values that constitute the postwar order.Footnote ⁸⁴ Narratives of war generate knowledge that can play an essential role for the survival, or contestation, of the polity. The narrativisation of war events is central to the performative constitution of identity, community, polity. As postwar Bosnia and Rwanda show the political order emerging in the aftermath of war is grounded on nationalist narratives pertaining to violence of war, narratives that are conditioned by both the tragedy of opening of human bodies in war, and political circumstances of the present, that is, current power relations.Footnote ⁸⁵

The narrativisation of violence of war is not only done via nationalist discourse. A distinct – yet overlooked – arena in which bodily injury enters the language of constitution of the political community is the courtroom. Indeed, in recent times, one of the most decisive production of knowledge about violence of war has taken place in court proceedings of criminal tribunals established by the international community to account for atrocities. Proceedings at fora such as the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Court of Justice (ICJ) provide perceptive examples of coup de force in a legal setting. The establishment of a new political order in the aftermath of war is always accompanied by enactment of a new legal structure and new laws. As Jacques Derrida notes:

It is necessary to recall at this juncture that law and justice are not synonymous. Law is enabled by justice. As John Finnis – a leading legal theorist – notes, the authority of law depends on justice, on its [law’s] ability to secure justice.Footnote ⁸⁷ But law is not justice. Because justice is an aporetic experience that cannot be experienced; justice is an experience of impossible. Another element of differentiation between law and justice pertains to calculation, in Derrida’s sense that: ‘Law is the element of calculation … but justice is incalculable.’Footnote ⁸⁸ In other words, justice surpasses law and calculation; it is beyond the possible and calculable.

The inauguration of a new law occurs always in interpretative, performative violence. Derrida: ‘In these situations said to found law or state, the grammatical category of the future anterior all too well resembles a modification of the present to describe the violence in progress. It consists, precisely, in feigning the presence or simple modalisation of presence.’Footnote ⁸⁹ The founding moment of law is the moment in which the foundation of law remains suspended

Crucial, therefore, is the issue of interpretation of the law, the performative act of legal interpretation. Many of the paradoxes of law are a function of (mis)interpretation of its provisions, or lack of provisions thereof. Let us refer to (the interpretation of) one of the most important laws related to the violence of war, the Genocide Convention, with regard to two particular aspects, namely, the limited assertion of genocidal intent and state responsibility for this heinous crime, in order to provide two concrete examples of the link between the performative role of war violence and law – violence of law.Footnote ⁹¹ The Convention provides that genocide is an international crime against groups (as opposed to individuals) that are defined on national, ethnical, racial, or religious terms; a crime that perpetrators commit with the intent to destroy the targeted group in whole or in part.Footnote ⁹² What sets genocide apart from any other crime is the perpetrators’ intent to destroy the targeted group as such. In the two most recent cases of genocide, namely Rwanda (1994) and Srebrenica (1995), the ICTR found 52 cases and the ICTY found 5 cases of accused persons – respectively – that acted with the intent to commit genocide. This at a time when genocide in Rwanda brought about the end of over 800,000 Tutsi lives in just over three months and genocide in Srebrenica claimed more than 7,000 lives of Bosnian Muslim men and boys in just a few days.Footnote ⁹³ If we recall – with John Finnis – that the authority of law depends on its ability to secure justice,Footnote ⁹⁴ given the record of genocide convictions, it is reasonable to surmise that the authority of genocide law has been compromised by its inability to secure at least a modicum of justice for the victims. While the legal findings that genocide occurred – in both cases – recognises violence of war and concomitant human suffering in its most severe form, judicial decisions have been structurally finite. Punishment meted out has been completely disproportionate to the harm and suffering incurred by victims and their communities.

It may seem an elementary notion that responsibility for genocide be vested not only with individuals, but also with states – understood in institutional terms – given that genocide virtually always occurs with direct or indirect state involvement. The Convention, however, does not provide for this; it does not state explicitly that states may commit, or may be responsible for, genocide. The importance of this matter resurfaced with full force in a case filed in 1993 in the International Court of Justice (ICJ) by the Bosnian government against the Federal Republic of Yugoslavia (then comprising Serbia and Montenegro), asserting that Serbia was responsible for violating the Genocide Convention. In drawing up its judgement, the ICJ relied heavily on ICTY evidence, which shows the very large extent of financial and military assistance that the Serbian government offered to its ethnic kin in Bosnia during the entire war, including July 1995 when genocide in Srebrenica took place. The ICJ acknowledged the massive Serbian assistance offered to Bosnian Serbs but decided that Serbia had only breached the Convention’s obligation to prevent genocide rather commit, or be complicit in, genocide.Footnote ⁹⁵ The ICTY – on whose evidence the ICJ relied – had worked with the concept of Joint Criminal Enterprise (JCE) to establish genocidal intent of individual perpetrators who operated as part of a(n official) group sharing such intent.Footnote ⁹⁶ Although JCE – in ICTY setting – provided evidence of official (group) criminal intent to commit war crimes, the ICJ did not make reference to the ICTY’s JCE concept and evidence that could have paved the way to establish the Serbian government’s intent and involvement in the perpetration of genocide in Srebrenica and war crimes in Bosnia. Nor did the ICJ rule on commission of lesser crimes than genocide – such as ethnic cleansing and rape – despite abundant ICTY evidence, due to the fact that the Genocide Convention does not allow for such determination.

These paradoxical interpretations of law give expression to Derrida’s elucidation that the performative function of law – that depends on who interprets the law – can be viewed as violence without ground. Moreover, paradoxes of legal interpretation make clear that for victims of violence of war, justice remains an impenetrable (hence aporetic) experience of impossible. Legal interpretation is always an interpretative force, a coup de force, which maintains a complex relation with violence and power. The two examples considered above show that readability of law, in our case of genocide law, is as little neutral as it is non-violent – at least from the point of view of victims. The paradoxes involved in the readable unreadability of violence is intrinsic to the symbolic order of law, which signifies ‘a juridico-symbolic violence … at the very heart of interpretative reading’ of law,Footnote ⁹⁷ a performative violence of law which is directly linked to the performative violence of war.