1 If we understand references to the ‘international community’ as an epistemic community producing knowledge about the world, it will produce knowledge about violence. This production of knowledge is bounding violence in the most basic sense. ‘To speak of epistemological violence in the 21st century might feel almost tautological. When the dominant strands of scientific, but especially technological, knowledge have not only served but also – perhaps more significantly – driven the development of military epistemologies and technologies, then one cannot talk of knowledge without evoking violence.’ Ryan Bishop and John Philips, ‘Violence’, (2006) Theory, Culture, Society 377 (emphasis in original).
2 Recent examples are Orakhelashvili, A., ‘Legal Stability and Claims of Change: The International Court's Treatment of Jus ad Bellum and Jus in Bello’, (2006) 75 Nordic Journal of International Law 371, arguing that the consistent jurisprudence of the International Court of Justice undermines the argument of alleged legal changes in the legal regime governing armed conflicts pursuant to the conflicts in Kosovo, Afghanistan, and Iraq; and E. Benvenisti, ‘The US and the Use of Force: Double-Edged Hegemony and the Management of Global Emergencies’, (2004) 15 EJIL 677, explaining that the ‘Bush doctrine’ upsets the UN regime for managing global security risks. Michael Byers's War Law deserves mention, because the author discusses humanitarian intervention as a potential third exception to the prohibition of the use of force only to discard it. M. Byers, War Law: International Law and Armed Conflict (2005).
3 Report of the Secretary-General's High-Level Panel on Threats, Challenges and Change. A More Secure World: Our Shared Responsibility, UN Doc. A/59/565 (2004), at 13. For detailed statements, see para. 192 at 63; para. 198 at 65. The text quoted above is programmatically reproduced in the introduction to the ‘Chatham House Principles’, infra note 4.
4 Wilmshurst, E., ‘The Chatham House Principles of International Law on the Use of Force in Self-Defence’, (2006) 55 International and Comparative Law Quarterly 963.
6 Another area of international law intimately dealing with the question of violence is human rights law. States have generated a saturated body of treaty law and a complex institutional environment in the same period in which the UN Charter has regulated the use of force. Yet my claim is not that the law on the use of force is extraordinary in some sense. The paucity of positive law is quite evident in it, which is why it makes a nice case for observing gestures of referral, as explained below.
7 This construction draws on apophatic traditions in theology, assuming that language is largely or totally incapable of stating what God is. For an overview see Milem, B., ‘Four Theories of Negative Theology’, (2007) 48 The Heythrop Journal 187. The Greek term ‘apophasis’ means ‘denial’, and the apophatic mode of thinking about God is most prominently associated with the works of Pseudo-Dionysius the Areopagite.
8 M. N. Shaw, International Law (2003), 1013.
9 Whether the author fell for a metaphor or consciously wove a view on international law into the text I cannot tell. His ascription softens the link between law and human volition, sketching an autonomy and personality of the law which transcends the aggregate will of the human lawmakers. This kind of language is collusive. It serves to make the relationship between man and law harder to understand. Seen from a Girardian perspective, it serves the purposes of generative violence well, as we shall see below.
10 The terminological choice between ‘force’ and ‘violence’ and the conceptual differentiation that comes with it is particularly pertinent in English as well as in the Latin languages. Germanic languages do not readily allow for this terminological differentiation. The German term ‘Gewalt’ may denote force, violence, or power. The Swedish ‘våld’ denotes violence, but is used to describe the international use of force as well (‘internationell våldsanvändning’).
11 H. Arendt, On Violence (1969).
14 Ibid., at 46. Arendt understands strength as an individual property, essentially independent of other things or persons. This term does not have a bearing on the problems dealt with in the present article.
15 Ibid., at 45. Her circumscriptions replicate the older distinction between the king's potestas and the pope's auctoritas.
16 Shaw's excerpt would ultimately lead us to the trite conclusion that violence is volition by the maleficent and international law is volition by the righteous. This would make plausible that violence that calls for punishment, while force merely calls for containment. This raises an issue of cognition. Either one ascribes to the primary sources of international law transcendent qualities, in which the exegesis of doctrine partakes, or one accepts that doctrinal texts such as Shaw's are obscuring moves veiling the relation of knowledge to power.
17 R. Girard, Violence and the Sacred (1977), 24.
20 More than a century ago Sorel remarked that the ‘problems of violence still remain very obscure’, which can be taken as an involuntary confirmation that the central condition for the functioning of generative violence thrived in 1906, as well as in 1969, when Arendt approvingly quoted Georges Sorel. G. Sorel, Reflections on Violence (1961), ‘Introduction to the First Publication’, 60, as quoted in Arendt, supra note 11, at 35.
21 ‘[S]ociety is seeking to deflect upon a relatively indifferent victim, a ‘sacrificeable’ victim, the violence that would otherwise be vented on its own members, the people it most desires to protect.’ Girard, supra note 17, at 4. ‘The celebrants’ of the sacrificial process ‘do not and must not comprehend the true role of the sacrificial act. The theological basis of the sacrifice has a crucial role in fostering this misunderstanding. It is the god who supposedly demands the victims; he alone, in principle, who savours the smoke from the altars and requisitions the slaughtered flesh. It is to appease his anger that the killing goes on, that the victims multiply.’ Ibid., at 7.
22 Following Arendt, ‘every decrease in power is an open invitation to violence – if only because those who hold power and feel it slipping from their hands, be they the government or be they the governed, have always found it difficult to resist the temptation to substitute violence for it.’ Arendt, supra note 11, at 87.
24 Anne Orford argues that the veiling of Picasso's Guernica tapestry at the entry of the Security Council premises on the occasion of the appearance of the then US Secretary of State Colin Powell before the Council on 5 February 2003 made the foundational violence of war visible. ‘Guernica is . . . troubling, . . . because it freezes time at that moment when the violence that may yet found a new law is not yet “buried, dissimulated, repressed”.’ A. Orford, ‘The Destiny of International Law’, (2004) 17 LJIL 441, at 459. In Girardian terms, the veiling incident is an avowedly failed attempt to render the displacement of violence obscure.
25 And therewith, of course, to the generation of violence.
27 ‘Polarized by the sacrificial killing, violence is appeased. It subsides. We might say that it is expelled from the community and becomes part of the divine substance, from which it is completely indistinguishable, for each successive sacrifice evokes in diminishing degree the immense calm produced by the act of generative unanimity, by the initial appearance of the god. Just as the human body is a machine for transforming food into flesh and blood, generative unanimity is a process for changing bad violence into stability and fecundity.’ Ibid., at 280–1.
28 ‘All sacrificial rites are based on two substitutions. The first is provided by generative violence, which substitutes a single victim for all the members of the community. The second, the only strictly ritualistic substitution, is that of a victim for the surrogate victim. As we know, it is essential that the victim be drawn from outside the community. The surrogate victim, by contrast, is a member of the community. Ritual sacrifice is defined as an inexact imitation of the generative act.’ Ibid., at 284.
30 Girard himself has used his own model to denounce sacrificial practices from a Christian position and presented a ‘non-sacrificial reading of the Gospel texts’, culminating in a new Christology in his Things Hidden since the Foundation of the World (1987).
31 F. Rosenzweig, The Star of Redemption (1985), 96.
33 When using the term ‘reductive judicial formalism’, I think of an international lawyer interpreting a treaty entirely ‘in accordance with the ordinary meaning to be given to the terms of the treaty in their context’ and terminating an interpretive operation without involving the ‘light of its object and purpose’. See Art. 31(1) of the 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331.
34 Considering, the ‘ends’ enumerated in the preamble of the UN Charter can be invoked to support teleological arguments. Indeed, were the world delivered into a state of tolerance, peace, security, and economic and social advancement, the UN Charter's preamble would be related to as a portent of that state.
35 Much of this debate followed a pattern in which all kinds of state practice were enumerated and the condensation of that practice into a legal concept of humanitarian intervention then denied. This retains the miraculous function of humanitarian intervention, while acknowledging the portents predicting it. See, e.g., S. D. Murphy, Humanitarian Intervention. The United Nations in an Evolving World Order (1998).
36 In a Newsweek interview published in the issue of 19 April 1999, Fischer was quoted as saying ‘My generation was brought up with two experiences. The first is “Never Again War.” And the second is “Never Again Auschwitz.” It means standing up against genocide.’ What might have seemed as a dilemma to some was neatly dissolved in the conclusion, suggesting that standing up against genocide cannot qualify as waging war. The sequential logic of this quote correlates with that employed by those international lawyers justifying the use of force by NATO on grounds of legitimacy. It is not without significance that a reference to Auschwitz was introduced at a time when the generation witnessing the annihilation policies of the German authorities in 1933–45 was thinning out and knowledge of its systems of homicide became increasingly mediated and institutionalized. Fischer's own formative experience was seeing images of Adolf Eichmann in his glass cage during the Jerusalem trial (Süddeutsche Zeitung, 25 January 2005).
37 G. Agamben, Potentialities. Collected Essays in Philosophy (1999), 77.
38 Ibid., at 78 (emphasis in original).
39 ‘Beyond the Conceivable’ is the title of Dan Diner's book on the Holocaust, published in May 2000 and discussing inter alia various strategies of debating the ‘final solution’. D. Diner, Beyond the Conceivable. Studies on Germany, Nazism and the Holocaust (2000).
40 D. Diner, ‘Haider und der Schutzreflex Europas’ [Haider and the protective reflex of Europe], Die Welt, 26 February 2000. He elaborated this argument in D. Diner, ‘Restitution and Memory: The Holocaust in European Political Cultures’, (2003) New German Critique 36.
41 The steps of this reading draw inspiration from the title of the third Melbourne Legal Theory Workshop at the Institute for International Law and the Humanities, University of Melbourne, 22–4 November 2006.
42 Is the 2006 National Security Strategy merely a domestic policy instrument? Any analysis of customary international law on the use of force or of pertinent treaty law would have recourse to such instruments in the determination of opinio juris. In using the text as an example, I do not wish to take a position on the confluence of some or all of its express content with valid international law.
43 National Security Strategy 2006, at 23.
44 ‘[T]he surrogate victim constitutes both a link and a barrier between the community and the sacred’. Girard, supra note 17, at 286, where he also uses the term ‘monstrous double’ to describe the victim.
45 National Security Strategy 2006, at 9.
46 Girard, supra note 17, at 289–96.
48 See Wilmshurst, supra note 4, at 970, asserting such a right to self-defence against a state unable or unwilling to assert control over a terrorist organization located in its territory.
49 International law as stated in the Chatham House Principles does not accept that a state may defend itself against a non-imminent threat. See ibid., at 968. This extension of international law with a transcendental normativity is necessary mainly to stretch the temporal perspective from imminence to uncertain timing.
50 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996,  ICJ Rep. 66; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996,  ICJ Rep. 226.
51 Legality of the Threat or Use of Nuclear Weapons, supra note 50, at 263. Martti Koskenniemi explained the Court's abstention from knowing the answer in terms of respecting a taboo: ‘By lifting the matter onto the level of judicial reason, the Court would have broken the taboo against any use of nuclear weapons’. M. Koskenniemi, ‘The Silence of Law/The Voice of Justice’, in L. Boisson de Chazournes and Philippe Sands (eds.), International Law, the International Court of Justice and Nuclear Weapons (1996) 488, at 496. By violating the taboo, by making divine violence profanely cognizable, the potential for miracular appeasement is cancelled out, too.
52 Nuclear Weapons Advisory Opinion, supra note 50, para. 105.2.E.
53 In the translation of the New American Standard Bible, 2 Thess. 2: 6–7 reads as follows: ‘And you know what restrains him now, so that in his time he will be revealed. For the mystery of lawlessness is already at work; only he who now restrains will do so until he is taken out of the way.’
54 C. Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (1950), 28–9.
55 Carl Schmitt's description of ‘acclamation’ as the most authentic form of democracy by a ‘truly assembled people’ in a street demonstration or a political meeting on a public square needs to be explored in its correlation to Girard's unanimity amongst community members on the sacrifice of the scapegoat. See C. Schmitt, Verfassungslehre (1970), 243.
56 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 (2001), at 43.
57 The US president's introduction to the 2006 National Security Strategy describes it as the government's ‘most solemn obligation’ to protect the security of its citizens.
58 Article 26 reads, ‘Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.’
59 Using the principle of the non-use of force as a test case, Ulf Linderfalk has shown that it is impossible properly to delimit norms of jus cogens and norms of jus dispositivum. U. Linderfalk, ‘The Effect of Jus Cogens Norms – Whoever Opened the Pandora's Box, Did You Ever Think about the Consequences?’, (2008) AJIL 853. It is precisely this margin left by the malleability of jus cogens that allows international lawyers to make the signifying gestures discussed in section 2 of this article. Unsurprisingly, jus cogens has its roots in Catholic thought. Alfred Verdross might be named here as one of the main proponents of jus cogens as a concretization of natural law's jus necessarium. Bruno Simma commented that Verdross's ‘Catholicism . . . provided a fitting, if not essential, foundation for his natural law philosophy as well as for his universalistic view of international law’ on which his substantial contributions to the development of jus cogens must have rested. B. Simma, ‘The Contribution of Alfred Verdross to the Theory of International Law’, (1995) 6 EJIL 1, at 5.
60 ‘Necessity’ can take us far indeed. John Rawls's ‘Supreme Emergency Exemption’ allows states to ‘set aside – in certain special circumstances – the strict status of civilians that normally prevents their being directly attacked in war.’ Using the example of the British bombing of Germany in a period of the Second World War up to the battle of Stalingrad, he believes that threats of the kind Nazism posed justify the invocation of this exemption. J. Rawls, The Law of Peoples (1999), 98–9. Rawls acknowledges that his teaching differs from that of the Christian doctrine of just war, which would not allow for such an exemption. Rawls, 104. Extrapolating and comparing eschatologies from Rawls's liberal treatise and the just war doctrine would be a worthy enterprise.
61 Spiermann, O., ‘Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens’, (2002) 71 Nordic Journal of International Law 523. Spierman is, however, more thoughtful in developing his argument than Thomas Franck, who believes that an international lawyer asked to advise on a ‘future Kosovo’ should state the following: ‘If a genocide is about to occur but the Security Council is incapacitated by a veto, the lawyer should advise that the law will not hold a government hard to account for doing what is palpably necessary to stop the commission of an imminent and greater wrong.’ T. M. Franck, Recourse to Force: State Action against Threats and Armed Attacks (2002), 191.