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[Page i]Religion • Society • Polity • Arts

WORLD ORDER

The International Criminal Court Building block for a global community

In this issue...

The International Criminal Court: A Step toward the Peace, Security, and Well-Being of the World Editorial

Pursuing World Order through International Justice and the International Criminal Court Lloyd Axworthy Robert Adamson

Negotiating the Rome Statute of the International Criminal Court John L. Washburn

Introduction to the Rome Statute of the International Criminal Court Arash Abizadeh

Is a Common Conscience Possible in the Modern World? Jim Stokes

AfterWord

Justice as Aberration: Reflections on the Historical Significance of the ICC Payam Akhavan

2002-03 Volume 34, No. 2 [Page ii]Religion • Society Polity • Arts WORLD ORDER 2002-03 VOLUME 34, NUMBER 2

WORLD ORDER IS INTENDED TO STIMULATE, INSPIRE, AND SERVE THINKING PEOPLE IN THEIR SEARCH TO UNDERSTAND THE RELATIONSHIPS BETWEEN CONTEMPORARY LIFE AND CONTEMPORARY RELIGIOUS TEACHINGS AND PHILOSOPHY.

EDITORIAL BOARD

Betty J. Fisher Arash Abizadeh Monireh Kazemzadeh Diane Lotfi Kevin A. Morrison Robert H. Stockman Jim Stokes

CONSULTANT IN POETRY Herbert Woodward Martin

INFORMATION FOR AUTHORS

World Order is published quarterly by the National Spiritual Assembly of the Bahá’ís of the United States, 536 Sheridan Road, Wilmette, IL 60091-1811. The views expressed herein are those of the authors and do not necessarily reflect the opinions of the publisher or of the Editorial Board.

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COPYRIGHT INFORMATION

Copyright © 2003 by the National Spiritual Assembly of the Bahá’ís of the United States; all rights reserved. World Order is protected through trademark registration in the U.S. Patent Office. Printed in the U.S.A. ISSN 0043-8804.

ART CREDITS

Cover design by Richard Doering, cover photograph, courtesy Jodie Coston; pp. 2, 6, Steve Garrigues; p. 18, Michael Winger-Bearskin; p. 28, Harry A. Taylor, Sr.; pp. 36, 50, Steve Garrigues; and p. 55, Della L. Marcus. [Page 1]2002-03 VOLUME 34, NUMBER 2

CONTENTS

3	The International Criminal Court: A Step toward the Peace, Security, and Well-Being of the World Editorial
4	Interchange: Letters from and to the Editor
7	Negotiating the Rome Statute of the ICC John L. Washburn
19	Introduction to the Rome Statute of the ICC Arash Abizadeh
27	Proclamation a poem by Paul Mantle
29	Pursuing World Order through International Justice and the ICC Lloyd Axworthy and Robert Adamson
35	The Song a poem by Victorino D’Araujo
37	Is a Common Conscience Possible in the Modern World? Jim Stokes
51	AfterWord—Justice as Aberration: Reflections on the Historical Significance of the ICC Payam Akhavan
53	AfterWord—A Short Bibliography for Further Study of the ICC
56	A Lover’s Song a poem by Michael Fitzgerald

[Page 3]

The International Criminal Court: A Step toward the Peace, Security, and Well-Being of the World

Looking back at the twentieth century, one can see a century of war, revolution, and genocide. It would be easy to characterize it as an epoch of horror and misery, notable for world wars, ethnic conflicts, terrorism, and mass destruction. While correct to an extent, this would be a shortsighted view because, in the midst of the devastation, humanity was also generating-however tentatively-ideas, notions, sentiments, and even institutions that are indispensable for creating a new society and a new social order based on peace. Even as much of humanity seemed intent on mutual (or self-) destruction, deliberate steps were taken to stop and even reverse the strife and conflicts. Not all of the efforts have been successful, of course. One can point, for example, to the pitiful failure of the League of Nations, to the manifest weaknesses of the United Nations, to the problems of the World Trade Organization. While many of the institutions and ideas created in the twentieth century have proven ineffective, while many have failed entirely and others will fail, enough progress has been made to assure successes in the future. The failures, as well as the signs of hope, should only serve to spur humanity into working ever harder for collective security, universal peace, and economic justice.

Among the most significant institutional developments of the closing years of the twentieth century was the formation of the International Criminal Court, which became effective on 1 July 2002, by ratification of the required minimum of sixty Member States of the United Nations. The ICC's unprecedented mandate is to bring to justice those individuals who have perpetrated crimes against humanity, war crimes, and genocide—crimes that "shock the conscience of humanity.” Never before has a truly global and permanent tribunal had jurisdiction over individuals; never before has the world been willing to accept that war crimes, genocide, and crimes against humanity are global crimes that threaten the entire world regardless of where or against whom they are committed.

Recognizing that "such grave crimes threaten the peace, security and well-being of the world," the ICC seeks to "put an end to impunity for the perpetrators of these crimes." The ICC's potential is even greater than this, however, for by bringing such crimes to light and, for the first time, to justice, the ICC may well become one of the key means of preventing the further perpetration of crimes against humanity. One can only hope that, as time goes on, the International Criminal Court will enhance its procedures, increase its prestige, and achieve its noble goals. [Page 4]

Interchange

Letters from and to the Editor

The International Criminal Court (ICC) is one of the more interesting international developments in recent history. In some quarters its formation has given rise to a great deal of hope. In others, it has caused a good deal of controversy. Students of world history and governance and those preoccupied with changing the ways in which the peoples of the world interact are finding much to ponder in the process by which the ICC came into being, the stumbling blocks the new Court faces, and the prospects it offers.

World Order is pleased to add to the discourse by offering you an issue devoted to the ICC. This issue offers a series of articles introducing the International Criminal Court, and the Rome Statute that gave it life, and several commentaries on the Court from various perspectives that highlight this remarkable achievement and explore its ramifications.

The story of how the ICC came into being in the remarkably few years between 1995 and 2002 is told from the personal perspective of a participant, John L. Washburn, the convener of the American NGOs Coalition for the International Criminal Court. He takes us behind the scenes and shows us how a major treaty is negotiated; how one keeps such a huge and complex process moving forward; how one overcomes cultural and political differences; how, through a nongovernmental coalition, civil society took its place among other key players in guiding the ICC to fruition; how a covenant forged among the players resulted in raising the art of international consultation on behalf of justice for all humanity.

Arash Abizadeh, an assistant professor of political theory, provides an overview of the distinguishing features of the Rome Statute of the International Criminal Court. Among other things, the Statute established the first permanent international court in human history to try individuals for genocide, crimes against humanity, and war crimes, thus presupposing "the notion of a global community of which all human beings are subjects, if not citizens." Abizadeh’s introduction discusses major Articles in the Rome Statute, including those covering the crimes under the ICC's jurisdiction, the scope of jurisdiction, and the ICC's judicial process.

Some of the challenges that lie ahead for the International Criminal Court are examined by Lloyd Axworthy, the former Foreign Affairs Minister of Canada and the director and CEO of the Liu Centre for the Study of Global Issues at the University of British Columbia, and Robert Adamson, the director of the International Justice Program at the same Centre. Far more worrisome than the possibility of the Court's politicization, Axworthy and Adamson argue, are the [Page 5]

INTERCHANGE

actions of the United States, which has repudiated its signing of the Rome Stat- ute and refused to cooperate with the new Court. Nonetheless, the "rule of law" and its instruments such as the ICC, the authors say, "are the most effective tools that we have to counter international criminality generally and global terrorism specifically."

In After Word, Payam Akhavan, the first Legal Adviser to the Prosecutor's Office of the International Criminal Tribunal for the former Yugoslavia at The Hague, reflects on the historical significance of the ICC. Justice, he says, can no longer be seen as an aberration. Justice is now the norm, while crimes against humanity are the aberration. From that perspective, the ICC can be seen more as a monument to humanity's dismal past than as a tribute to its per- spicacity about the future.

After Word concludes with a brief annotated bibliography of electronic and printed sources for further study of the ICC.

Rounding out the issue is yet another perspective on governance and global cooperation written by a professor of English literature at the University of Wisconsin, Stevens Point. Using Homer's Odyssey, Jim Stokes explores whether a common conscience is possible in the modern world, whether it is possible "to leave the house of war" and "to inhabit the house of peace." In many ways the war and strife, "the issues of honor, disputed territory, and religious and cultural competition" that fueled Odysseus' problems were the same prob- lems that faced those who found in 1995 that the time had come to find a better way to organize human justice.

The Editorial Board would also like to draw its readers' attention to a recent book by Brian D. Lepard, an associate professor at the University of Nebraska College of Law, where he teaches inter- national human rights law. His recent book touches on an aspect of interna- tional law that has very much been in the news of late: the legality and ethics of international intervention. Rethink- ing Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions (Penn State UP, 2002) approaches the topic by attempting to integrate international law and ethical principles shared by the world religions, including the Bahá’í Faith. We are confident that it will be of interest to our readers.

[Page 7]

Negotiating the Rome Statute of the International Criminal Court

JOHN L. WASHBURN

The life of the International Criminal Court (ICC) has begun. Certain crimes committed after 1 July 2002 will be eligible for its jurisdiction. This essay tells the story of the extraordinary achievement of the international community and particularly of the United Nations in creating (despite the odds and the conventional predictions) a new permanent global court to try the worst criminals for the worst atrocities.

In September 2002 the Secretary-General of the United Nations swore in the officers of the Assembly of States Parties, the governing body of the Court. It is composed of the countries that have ratified the Rome Statute, which is the Court's charter. The Assembly then adopted two additional documents—one on precise definitions of the crimes the Court will try (called the Elements of Crimes) and one on the Rules of Procedure and Evidence. It also approved a series of resolutions on the administrative, managerial, and budgetary procedures the Court will need to begin full operations. These documents and resolutions were prepared by the United Nations Preparatory Commission for the International Criminal Court.

The Dutch government, host to the ICC, has provided a building in The Hague where an advance team is already at work. The judges and senior staff were officially chosen in early 2003, and the judges were sworn in on 11 March 2003 at an historic gala international celebration in The Hague. This celebration included the first session of the Court at which the new judges elected their President, Philippe Kirsch of Canada, and assigned themselves to the Court's three chambers of six judges each.

The Court is expected to be acting on its first cases by the middle of 2003. A distinguished lawyer, Luis Moreno Ocampo, was elected Prosecutor of the ICC by consensus on 21 April 2003 during the first session of the Assembly of States Parties.

The United States did not take part in the Assembly of States Parties or in any of the activities in The Hague in March 2003. There are no Americans among the

Copyright 2003 by John L. Washburn.

JOHN L. WASHBURN is Convener of the American Non-Governmental Organizations Coalition for the International Criminal Court, a program of the United Nations Association of the USA. He is a lawyer and has been a United States Foreign Service Officer and a director in the Executive Office of the Secretary-General of the United Nations. [Page 8]first judges of the Court. On 6 May 2002 the United States government issued a formal statement of its position on the International Criminal Court, declaring that the United States would turn its back on the Court, would not be involved in any of its governance or other activities, and would not assist the ICC in any of its cases.1 In July 2002 the United States succeeded, after acrimonious negotiations in the Security Council, in obtaining a resolution providing for a one-year exemption from the Court's jurisdiction for all peacekeepers in operations authorized or deployed by the United Nations.2

The swearing in of the Court's officers and judges marked the end of the negotiations to create the Court. The process and dynamic of the negotiations represent the most significant achievement to date of multilateral legislation through parliamentary diplomacy. The negotiating techniques that resulted in the International Criminal Court are likely to be used more often as the focus of multilateral negotiations moves from establishing norms and standards of international behavior, by the adoption of legal instruments such as the Universal Declaration of Human Rights and the Convention on Genocide, to creating international institutions, such as the International Criminal Court, designed to implement them.

The Rome Statute

The documents that establish, express, and define the ICC include both the Rome Statute with its accompanying resolutions and Final Act (adopted 17 July 1998 in Rome at the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court) and the Elements of Crimes and the Rules of Procedure and Evidence (adopted 30 June 2002 by the Preparatory Commission for the ICC).³ The Rome Statute with 13 parts, 128 articles, and 106 pages in the official text—constitutes one of the most complex and comprehensive documents ever negotiated at the United Nations. It is simultaneously a blueprint for the governance and organization of the court; a detailed codification of its jurisprudence covering war crimes, genocide, and crimes against humanity; a statement (in its Preamble) about the human experience with these crimes and their affront to "the conscience of humanity," which made the court

1. See Under Secretary of State for Political Affairs Marc Grossman, "American Foreign Policy and the International Criminal Court," remarks, Center for Strategic and International Studies, Washington, D.C., 6 May 2002 <http://www.state.gov/p/9949.htm> (last visited on 10 Apr. 2003). 2. See Security Council Res. 1422 (12 Jul. 2002). 3. For the Rome Statute and the Final Act, see United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court, Official Records, A/CONF.183/13, vol. 1 [of 3] (New York: United Nations, 2002) 1–79. For the Elements of Crimes and the Rules of Procedure and Evidence, see Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, ICC-ASP 1/3 New York, 3–10 Sept. 2002, New York, 10–107 (Rules), 108–55 (Elements). [Page 9]painfully necessary; and a detailed guide for the conduct of trials and judicial processes, including the rights of the accused.4

The Elements of Crimes document elaborates in great detail the nature and definition of the three categories of crimes. Together with the relevant sections of the Rome Statute, the Elements of Crimes provides the court with the guidelines and detailed jurisprudence necessary to enable judges from various cultures and legal systems to reach consistent verdicts. In much the same way, the requirements of the Rules of Procedure and Evidence should guide judges in making practical, consistent, and enduring procedural decisions and in drafting further detailed regulations for their work.

The negotiating history of the Rome Statute began with a surprise, and surprise continued to be a characteristic of all the stages that followed. In 1995 the UN General Assembly met as a committee of the whole in an atmosphere of considerable doubt to discuss the possibility of negotiating a charter for a permanent international criminal court. This meeting had as a guide a draft charter for an international criminal court prepared by the General Assembly’s International Law Committee. Very little of this draft ultimately survived in the Rome Statute.

In reviewing the crimes such a court might try, the members of the committee found that they were in remarkably broad agreement only on war crimes, genocide, and crimes against humanity. They quickly recognized that the twentieth century provided many examples, worldwide and intense, of the atrocities involved in these three categories of crimes. Moreover, the existing treaties and general state of international law covering them were extensive and already widely accepted. The three types of crimes would, therefore, provide a clear and firm foundation for a new court. Although some countries were disappointed that crimes such as narcotics trafficking and hijacking were not included, there was consensus that the three primary categories of crimes should be the foundation for the new court. The work of the negotiations, therefore, would be to build on the existing foundation a complex structure for an international criminal court. To their own considerable surprise, the members of the committee of the whole were quickly able to turn themselves back into a plenary meeting of the General Assembly. This meeting authorized a subordinate body of the Assembly—the United Nations Preparatory Committee of the International Criminal Court (1995-98, hereafter referred to as the Committee)—to conduct negotiations for a permanent criminal court. Later the General Assembly would authorize the 1998 Rome Diplomatic Conference (17-19 July 1998, the Conference), which adopted the Rome Statute, and thereafter the United Nations Preparatory Commission

4. Preamble, Rome Statute of the International Criminal Court, in United Nations Diplomatic Conference of Plenipotentiaries 3. [Page 10]sion for the International Criminal Court (1998-2002, the Commission). The Committee, the Convention, and the Commission are also referred to as the governmental negotiating bodies.

In the Committee, painful emotions and a powerful psychology drove the negotiations and the consensus behind them. Historic memories of atrocities on all continents and the inability of governments individually and the international community as a whole to cope with them were constantly before the negotiators. Again and again in the negotiations powerful and moving statements by countries such as Sierra Leone, Germany, South Africa, Argentina, Israel, Mexico, and South Korea pushed and sustained the progress that led to the remarkably rapid completion of the Rome Statue in three years. From such statements and from other more technical discussions in the Committee there also emerged the image of the criminals the new court was being designed to try: leaders who seek, gain, and keep power through atrocities designed to destroy or terrify their opponents and to bind their followers to them in a way that perpetuates their control.

Such feelings and experiences were also behind the early formation and quick growth of the Like Minded Group, a caucus that eventually included more than sixty countries that resolutely supported the formation of an international criminal court. The nations in the Like Minded Group were bound together by a conviction that was both strategic and passionate: that the court should represent a decisive and historic departure from past indifference or political reluctance to prosecute war crimes, crimes against humanity, and genocide. This conviction and the breadth of membership of the Like Minded Group also enabled it, by and large, to neutralize the dominance of traditional regional groups in negotiations at the United Nations.

Between 1995 and 2000 the United States, through an expert and very able delegation, made fundamentally important contributions to both the substance and the technical aspects of the Statute and the Court. The United States also campaigned strenuously to control the Court in a way that other countries believed, as shown ultimately by their votes at the Rome Conference, would unacceptably limit the independence, viability, and legitimacy of the ICC.

The powerful conviction that the world needed an international criminal court affected the special interests and motives of the four main actors in the negotiations: the government delegations; the governmental negotiating bodies (the respective officers of the Committee, the Conference, and the Commission); the United Nations; and Non-Governmental Organizations (NGOs). These principal negotiating players were able to draw on procedures the United Nations had developed during its fifty years' existence and on some of the traditional features of diplomatic conferences and multiparty treaty negotiations used by the UN and other international organizations. The three subordinate bodies of the UN General Assembly [Page 11]

NEGOTIATING THE ROME STATUTE

that conducted negotiations on the ICC were its Preparatory Committee, its Diplomatic Conference, and its Preparatory Commission.

THE UNITED STATES CAMPAIGNED STRENUOUSLY TO CONTROL THE COURT IN A WAY THAT OTHER COUNTRIES BELIEVED WOULD UNACCEPTABLY LIMIT THE INDEPENDENCE, VIABILITY, AND LEGITIMACY OF THE ICC.

Sessions of the Preparatory Committee and later of the Preparatory Commission were convened several times a year in New York and consisted of plenary meetings held once or twice a week during those sessions, working groups devoted to specific subjects, and a variety of informal meetings and caucuses in support of the working groups. The chairs of the Committee, the Conference, and the Commission appointed individuals known as "focal points" to confer with participants in the negotiations on issues considered too limited or not yet ready for the working groups.

Outside of the official sessions, the international NGO Coalition for the International Criminal Court (CICC) sponsored a large variety of meetings. 6 Many of these included both members of government delegations and representatives of nongovernmental organizations. Governments also met among themselves in regional groups, in caucuses such as the Like Minded Group, and as members of regional organizations, such as the European Union.

The 1998 Rome Diplomatic Conference had the same general organization as the Preparatory Committee and the subsequent Preparatory Commission, with the exception that the Conference consisted of two general bodies. The senior body was the plenary of the Conference that met for ceremonial purposes and to adopt the final text of the Rome Statute. The junior general body was called the Committee of the Whole, which (like the plenary meetings of the Committee and the Commission) monitored the progress of the working groups and received agreed-upon texts to be incorporated in the final version of the Rome Statute. The Conference also had a Drafting Committee composed of government representatives from countries the national languages of which are the six official languages of the United Nations (Arabic, Chinese, English, French, Russian, and Spanish) in which the Rome Statute would have to be rendered as an authoritative text. For the Committee and the Commission, drafting and translating of texts was done by the United Nations Secretariat.

All meetings of the Committee and the Commission and especially of the Conference experienced a shortage of time and heavy pressure to fulfill ambitious agendas. Many of the numerous meetings of the Committee and the Commission and those at the Conference had to take place simultaneously. It was impossible for any delegation, no matter how large, to cover all of the meetings in which it had

5. Meetings of the Committee were held in New York in 1996 (25 Mar.-12 Apr. and 12-30 Aug.); 1997 (11-21 Feb., 11-15 Aug., and 1-12 Dec.); and 1998 (16 Mar.-3 Apr.). Meetings of the Commission, also held in New York, took place in 1999 (16-26 Feb., 26 Jul.-13 Aug., 29 Nov.-17 Dec.); 2000 (13-31 Mar., 12-20 Jun., 27 Nov.-8 Dec.); and 2001 (26 Feb.-9 Mar., and 24 Sept.-5 Oct.). 6. See <http://www.iccnow.org>. [Page 12]a serious interest. Hence meetings of groups to share information, and the reports and analytical papers issued by the CICC and individual NGOs, were indispensable in helping nongovernmental organizations and government delegations alike keep abreast of events and information they needed to know.

The Role of Governments

While all the actors were indispensable to the final success of the negotiations, the government delegations had the final decision-making and implementation power and, therefore, were most important to giving life to the International Criminal Court. The other three actors—the United Nations; the elected officers of the governmental negotiating bodies (the Committee, the Convention, and the Commission); and NGOs—drew their importance from their respective abilities to guide and direct, assist, and influence the government delegations. A special feature of the negotiations was that all four actors came to share many common commitments, goals, and understandings.

In the judgment of many observers, the members of government delegations were, on average, considerably younger than in those other meetings at the United Nations. They included experts on international law, national prosecutors and defense counsel, conflict-resolution experts, and specialists in administering and managing international organizations, including courts. Many of the career diplomats in government delegations also had one or more of these qualifications. A considerable number of government representatives took part in all or most of the negotiations between 1995 and 2002. Since these characteristics were also true of representatives of nongovernmental organizations and of members of the United Nations Secretariat, they tended to bond from their shared experience in ways that further promoted a shared sense of process and purpose.

The official instructions given to government delegations varied widely in their comprehensiveness and detail, but charges that they were improvising on their own were, for the most part, not true. Delegations from almost all developed countries and from a surprisingly large number of developing nations had clear instructions and were in constant dialogue with their capitals as the negotiations progressed. Many delegations were able to get instructions on emerging developments almost immediately by cell phone and e-mail.

The Role of Officers of the Governmental Negotiating Bodies

The respective elected officers of the three governmental negotiating bodies—the Committee, the Conference, and the Commission—and their appointees, collectively known in each case as "The Bureau," constituted the least known of the principal actors and, after the government delegations themselves, the most powerful ones. The Bureau of each negotiating body consisted of the chair, the vice-chairs, [Page 13]a rapporteur who wrote the final reports of the reporting sessions to the UN General Assembly, the chairs of the various working groups, and the focal points and special-contact persons. The success of the negotiations depended very much on the ability and powers of chairs to propose practical work programs; impose time limits without offending individual countries; detect, create, and propose agreements and compromises; and maintain credibility and objectivity. This, of course, required special personal qualities and high professional skills. The compelling nature of the ICG, and the commitment that it aroused, inspired persons with such skills to undertake the exhausting, and sometimes thankless, work of chairing. The negotiations were fortunate in having the personalities and capabilities of Adriaan Bos, a diplomat from the Netherlands who chaired the UN Preparatory Committee of the ICC, and Philippe Kirsch, a diplomat from Canada who led the Rome Diplomatic Conference and the UN Preparatory Commission for the ICC. Kirsch was at the center of the success of the Rome Diplomatic Conference. In particular, he drafted and redrafted a package of compromises on the central issues over which the conference seemed to be at an impasse in its final week and skillfully devised techniques of debate on those proposals that finally produced agreement.

The Role of the United Nations

The United Nations was a party to the negotiations through its institutional commitment to bringing the ICC into being; through the technical and diplomatic support and services from the chief and staff members of the Codification Division of the Office of Legal Affairs; and through the work of the conference officers from the Department of General Assembly Affairs and Conference Services. Secretary-General Kofi Annan made it clear to the public and to the UN staff members engaged in the negotiations that the UN as an organization, and he personally as the Secretary-General, were totally committed to an effective international criminal court. He recognized that success would be a compelling demonstration of the relevance and effectiveness of the UN in the new millennium. Failure, however, would seriously damage the credibility and stature of the United Nations in a time of fundamental transition for itself and for the world. The Secretary-General closely and constantly watched the negotiations, pushed his subordinates to make sure they delivered everything the negotiations needed, and associated himself personally with the success of the Rome Diplomatic Conference and later with the entry into force of the Rome Statute. In 1998 he made a twelve-hour, last-minute journey from Latin America to Rome to be present on 17-18 July at the celebration of the adoption of the Rome Statute.

The ICC could only have been created through negotiations under the auspices of the United Nations, because of the unique expertise and services of the UN [Page 14]Secretariat. The long experience and accumulated knowledge of the members of the UN Office of the Legal Adviser were not available elsewhere. These officials also had long and constant experience in UN meetings and conferences on various aspects of international law. Their skills in multilateral diplomacy, conference management, drafting, and rapidly producing documents provided crucial support for those attending the various meetings of the Bureaus of the Committee, the Conference, and the Commission. These abilities were particularly important to chairpersons in creating and drafting compromises and persuading governments to accept them. An important logistical part of the support provided by the Office of the Legal Adviser was the UN Secretariat's ability to produce in a few hours, or overnight, documents in all the required languages, an effort essential to keeping debates moving and minimizing the time in which governments could change their minds about an agreement. Delegates were reminded of the value of such support on the few occasions when it failed because of reduced staff or antiquated equipment resulting from the UN's lack of funds.

UN staff members also handled other logistical and parliamentary aspects of the conference with impressive skill and stamina. Staff members on the dais with chairpersons made sure that delegations wishing to speak were recognized and that notes were kept for the chairs to help them direct the debate and to make summations at the end of each session. Conference personnel overcame the primitive conference technology of the United Nations by keeping careful records of alternative proposals from governments and by distributing the huge quantities of papers and documents that were generated. The simultaneous interpretation at the United Nations fully earned its reputation with skillful translation of complicated and technical legal expressions and concepts.

The Role of Civil Society

Among the several breakthroughs and advances made by the ICC negotiations, the most important may well have been the organization of civil-society activities and representation in them. The Coalition for the International Criminal Court (CICC) represented eight hundred member organizations at the Rome Conference in 1998 and more than two thousand as the ICC began its life in 2002 when the officers of the ICC's Assembly of States Parties were sworn in. The CICC participation in the creation of the ICC marks the high point so far of the ability of NGOs to operate at international conferences and negotiations through coalitions, focusing their power and influence on particular issues. The secretariats of international organizations can no longer cope with the large number of NGOs that are interested in their work and wish to attend their meetings. Coalitions provide a single inter- locutor for such organizations on matters ranging from access and facilities to substantive issues in negotiations.

The founders of the CICC, especially William R. Pace of the World Federalist Movement, who has been the Convener from its inception, recognized at the onset

7. The Bahá’í International Community is a founding member of the CICC's Faith-Based Caucus. [Page 15]that the ICC was especially well suited for the work of a coalition. An international criminal court would be a familiar, easily imagined, and attractive institution. It would have the drama, newsworthiness, and concreteness of criminal trials. NGOs with diverse interests and agendas would recognize an important common and similar interest in a court that would promote their respective causes in a new and powerful way.

As it started in 1995 and consistently in the intervening years, the CICC prudently asked its members to commit themselves only to the creation of a fair, free, effective, and independent international criminal court. It was careful not to interfere in the individual positions or programs of its members. It did, however, constantly enlarge its members' sense of common commitment and bonding with each other through the joint practical activities that it coordinated for them at various ICC meetings. The CICC was able to draw on this sense of common dedication and mutual confidence in getting its members to accept a few carefully chosen substantive positions toward the end of the Rome Conference and thereafter. In devising its joint activities, the CICC intended to make itself indispensable to the other actors in the negotiations, thereby gaining their confidence and support, contributing to the rapid progress and eventual success of the negotiations, and helping to establish a court that would be as powerful, independent, and effective as possible.

The CICC organized teams to cover and report on specific key issues. This usually meant one team to cover each of the working groups. The teams took notes and prepared overnight reports on the progress of the working groups or issues. These served both to help participants keep up to date and to create the raw materials of the legislative history of the court. The latter was especially important because the United Nations no longer has the resources to maintain records of most meetings. The notes and reports of the teams, which the CICC has archived, will be an indispensable resource for researchers in the future.

At meetings the CICC also supported the lobbying of its members with government delegations and increasingly, over time, influenced delegations through its own work as well. The CICC convened or sponsored many meetings, formal and informal, between government delegations and NGOs. In particular, its briefing of the European Union and the Like Minded Group became a customary and much appreciated feature of every ICC meeting.

The CICC frequently supported the Bureaus of the Committee, the Conference, and the Commission and the UN Secretariat in their diplomacy with government delegations and especially in persuading delegations to accept compromises and texts that the Bureaus had proposed. The CICC support was especially important during the last few days of the Rome Conference when chairman Kirsch made proposals to break an impasse on a few key and politically difficult issues. Although the CICC as a whole did not take positions on the proposals, its members coordinated their [Page 16]individual efforts to circulate and explain the positions. Later, when Kirsch required delegations to state briefly their position on the proposals, the CICC kept and published daily tallies of the positions. These demonstrated the support among government delegations for the chairman’s proposals and thus helped greatly to create a “join-the-majority” momentum in their favor.

Between meetings the CICC encouraged and supported the so-called “intersessional meetings” attended by government representatives and NGOs at various levels and on different subjects. The intersessional meetings often produced understandings and informal drafts on difficult and disputed subjects. These drafts, in turn, often became the basis for agreement on such subjects in subsequent ICC meetings. In addition to the expert papers of CICC members, the Coalition also prepared a wide range of briefing or analytical papers on subjects as diverse as the crime of aggression (those drafting the Rome Statute were not able to agree on a definition of this crime) and the first budget of the ICC. The papers were widely used by delegations that recognized their quality, comprehensiveness, and valuable information.

A particularly innovative and important CICC activity was to organize lobbying for the ICC in national capitals of UN members through its networks of member NGOs. This was especially vital in accelerating ratifications so that the Rome Statute came into force much earlier than expected. The CICC closely tracked and maintained current country-by-country reports of ratifications. The Coalition and its members also helped countries struggling with ratifications. In contacts with individual countries and also through conferences, they helped in developing solutions to technical and legal problems and in overcoming political reservations by promoting mutual support among nations in the same region or with similar legal and governmental systems.

Through its many activities, the CICC earned the respect, the acceptance, and, finally, the admiration of the other actors in the negotiations. The CICC came to be accepted as a virtual peer by the UN Secretariat, government delegations, and the Bureaus of the Committee, the Conference, and the Commission, all of which had been skeptical or hostile about a coalition of NGOs at the beginning of the negotiations.

The success of the CICC will carry civil society into an accepted and influential place in the work and governance of the new International Criminal Court, and it will be a precedent for future such coalitions. However, such coalitions will probably not have the benefit of some of the special characteristics of the ICC negotiations. For in most negotiations NGOs will have to work with governments and others to achieve, painfully and laboriously, the foundation agreement upon which a legal framework is then constructed. In contrast, the CICC benefited greatly in its internal politics and in its work from the clear, compelling, familiar, and concrete nature of a criminal court. Given the universal condemnation of the crimes in question, the governments were able to agree early in the negotiations that the [Page 17]statute should focus only on genocide, war crimes, and crimes against humanity. In the future, on issues such as global warming, governments may never reach such unanimity, or, if they do, reach it so quickly. Moreover, future negotiations will probably be working toward institutions that will not be so naturally attractive and have such clear national models (domestic criminal courts) as the International Criminal Court.

Conclusion

Considering how the negotiations for the ICC progressed overall, they took on certain characteristics that are of special interest. Many of the participants developed a sense of common involvement with one another and with the enterprise of creating an ICC that perhaps may best be understood as a kind of tacit, but deeply felt, covenant. They came to feel that they were working together on a shared and distinctly spiritual journey. They recognized that they were turning away from the past apathy and lack of political will of governments and societies in the face of, in the words of the Statute, "grave crimes" and "unimaginable atrocities that deeply shock the conscience of humanity.” In their speeches and their actions, some of them extraordinarily moving, nations told each other that certain offenses against human life and the human spirit, and the persons responsible, must be stopped. They declared this not in a spirit of punishment but in the service of values and beliefs that, to their surprise, they realized they shared more deeply and widely than they had thought.

The Spring 2000 issue of World Order began with an editorial essay entitled "The Century of Light?" The essay describes, in terms this author found especially helpful for one who is not a Bahá’í, the Bahá’í view of the nature of our time. It points out that the Bahá’í writings describe this era as "the dark heart of an age of fundamental change" but also as "a century of light." The message of the editorial is that this is not a contradiction but a conviction, both pessimistic and optimistic, that humanity is struggling to advance from the darkness of past evil into the light of spiritual illumination that this evil has obscured. In the Bahá’í conception, the editorial reports, we are advancing toward the light of new possibilities and new potentials as humanity comes of age. The negotiations for the ICC have provided powerful and moving evidence for the truth of this concept. This truth requires that all those who share that belief must now commit themselves to make sure the International Criminal Court becomes what so many have worked so hard and so well to make it.

8. Preamble, Rome Statute of the International Criminal Court, in United Nations Diplomatic Conference of Plenipotentiaries 3. 9. "The Century of Light?" World Order 31.3 (Spring 2000): 2.

[Page 19]

Introduction to the Rome Statute of the International Criminal Court

The Rome Statute of the International Criminal Court establishes, for the first time in human history, a permanent international court with jurisdiction to try individuals for genocide, crimes against humanity, and war crimes.¹

The possibility of such a permanent court had been envisioned by the United Nations shortly after World War II and the Nuremberg trials.² In Resolution 260, dated 9 December 1948, the General Assembly invited the International Law Commission to study the desirability and possibility of a permanent international criminal court. The Commission then codified the principles established in the Nuremberg trials and prepared draft statutes for a permanent court. The intensification of the Cold War in the late 1940s quickly paralyzed the effort, but it received renewed impetus after the end of the Cold War in 1991 when, in response to widespread atrocities in Rwanda and the former Yugoslavia, the UN Security Council established ad hoc criminal tribunals to try the perpetrators. By 1994 the International Law Commission submitted to the General Assembly its final draft statute for a permanent international court.

On 17 July 1998, after four years of negotiations, the Rome Statute was approved. by a vote of 120 to 7 (with 21 abstentions) by the state-delegates to the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. The statute came into force on 1 July 2002, after it was ratified by the required minimum of sixty states.

The significance of the International Criminal Court (ICC) does not lie solely

Copyright ©2003 by Arash Abizadeh.

1. The full text of the Rome Statute is available at <http://www.un.org/law/icc/statute/99_corr/cstatute.htm>. 2. For a history of war crimes tribunals, see the excellent study by Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton UP, 2000).

ARASH ABIZADEH is an assistant professor at Wesleyan University, where he teaches contemporary political theory and the history of political philosophy. He received his M.Phil. from Oxford University as a Rhodes scholar in 1994 and his Ph.D. from Harvard University in 2001. He has published in Political Theory, Review of Metaphysics, American Political Science Review, and Senses of Cinema. In July 2003 he will join the faculty at McGill University in Montreal, Canada. [Page 20]in its promise as a mechanism for helping prevent repetition of the massive atrocities to which the twentieth century was witness. It also lies in the nature of its jurisdiction: unlike the International Court of Justice at The Hague, which has jurisdiction only over states, the ICC has jurisdiction over individuals. In other words, this is the first permanent international court that recognizes the individual as a subject of international criminal law and, as such, seems philosophically to presuppose the notion of a global community of which all human beings are subjects, if not citizens. The Preamble to the Rome Statute makes explicit reference to the "common bonds" that unite all peoples and to "the conscience of humanity"—a conscience deeply shocked by the "unimaginable atrocities" of the twentieth century.³

Crimes Under ICC Jurisdiction

Article 5, § 1, of the Rome Statute states that the "jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.” It thus grants the ICC jurisdiction only over “(a) The crime of genocide; (b) Crimes against humanity; (c) War crimes" and envisages, pending agreement on its definition, future jurisdiction over "(d) The crime of aggression."4

Article 6 defines the crime of genocide as involving acts such as "killing," “[c]ausing serious bodily or mental harm," and "[f]orcibly transferring children” that are "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group." Article 6 thus reproduces the language of the 1948 Geneva Convention, which does not include acts directed against social or political groups, an omission criticized by some groups.

Article 7 defines crimes against humanity as involving acts "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack." The "acts" include murder, extermination, enslavement,

3. See Preamble, Rome Statute, at <http://www.un.org/law/icc/statute/99_corr/cstatute.htm>. 4. The delegates to the Rome Convention were unable to agree on a definition of the crime of aggression. Thus the inclusion of the crime of aggression, left undefined by the statute, is only a statement of intent and does not at present grant the Court jurisdiction. The Court will gain jurisdiction only if there is an amendment to the statute, following the regular procedures and subject to the regular restrictions as outlined in Article 121. 5. See Diane F. Orentlicher, "Putting Limits on Lawlessness: From Nuremberg to Pinochet," Washington Post 25 Oct. 1998: C1. 6. According to Human Rights Watch ("5. THE CRIMES: Thresholds," Summary Of The Key Provisions Of The ICC Statute, Sept. 1998 <http://www.hrw.org/campaigns/icc/docs/icc-statute.htm>, accessed 28 Jul. 2002), "There was extensive debate in Rome as to whether the attack should instead have to be widespread AND systematic, and as to the definition of 'attack'. . . . consistent with established international law, the 'or' language prevailed...." [Page 21]

INTRODUCTION TO THE ROME STATUTE

deportation, illegal imprisonment, torture, enforced disappearance, and apartheid.

Significantly, Article 7, § 1, also includes: (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . ., or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.

The inclusion of sexual crimes (such as rape) and of persecution on the basis of gender was an extremely contentious innovation and was considered a major victory by many human-rights and women's groups. (According to Human Rights Watch, "the Holy See, backed by the Arab League nations, mounted a concerted attack against" their inclusion.) The other source of controversy was the inclusion of persecution on "other grounds" (Art 7, §1.h) beyond those specified in the statute.³

Article 8 defines war crimes. Section 2.a describes as a war crime violations of the Geneva Convention's prohibitions on acts such as willful killing, torture, extensive property destruction with no military purpose, and improper treatment of prisoners of war. The remainder of Article 8 discusses additional war crimes of two types: war crimes in international armed conflict (Art 8, § 2.b) and war crimes in “armed conflict not of an international character" (Art 8, § 2.c-f). In other words, the statute grants the ICC jurisdiction over war crimes committed in internal armed conflicts as well, though the list of these crimes is more restricted than the list for international armed conflicts.

War crimes in both international and internal conflicts include pillaging towns (Art 8, § 2.b.xvi), outrages upon personal dignity (Art 8, § 2.b.xxi), sexual crimes such as rape and enforced prostitution (Art 8, § 2.b.xxii), and the conscription or enlistment of children as combatants (Art 8, § 2.b.xxvi). The list also includes, in the case of international armed conflict, the "transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory" (Art 8, § 2.b.viii), 10 and, in the

7. Human Rights Watch, "5. THE CRIMES: Enumerated Acts," Summary Of The Key Provisions. 8. Human Rights Watch, "5. THE CRIMES: Enumerated Acts," Summary Of The Key Provisions, criticizes the adopted language, which specifies that "persecution must be committed in conjunction with another crime under the statute," for removing "the prosecution of persecution per se from the Court's jurisdiction, which is inconsistent with the clearly stated position of the International Criminal Tribunal for the Former Yugoslavia (ICTY) that persecution is in itself a crime against humanity." 9. Where a clause is shared, I only give the paragraph numbers for the definition as war crimes in international conflicts. 10. Human Rights Watch, "5. THE CRIMES: War Crimes (Article 8)," in Summary Of The Key Provisions, states that, "While the language of 'directly or indirectly' is new, the crime of transfer by an occupying power of parts of its own civilian population into the territory it occupies is taken directly from the 4th Geneva Convention and the grave breaches provisions of Protocol I (Art. 85(4)(1))." [Page 22]case of internal conflict, displacing the civilian population for military purposes unrelated to their own security or to military imperatives (Art 8, § 2.e.viii). In both international and internal cases, war crimes also include intentionally directing attacks against civilians (Art 8, § 2.b.i), against humanitarian or peacekeeping personnel and installations protected under the international law of armed conflict (Art 8, § 2.b.iii), and against hospitals and buildings or monuments of cultural significance that are not military objectives (Art 8, § 2.b.ix).

Several acts that constitute war crimes in international armed conflicts are not covered under internal conflicts. Article 8, § 2.b.iv, for example, defines as a war crime:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

The inclusion of certain types of incidental civilian damage as a war crime was controversial, and its exclusion from the list for internal armed conflicts is significant. Other crimes included in cases of international but not internal conflict include attacking or bombarding undefended habitations that are not military objectives (Art 8, § 2.b.v), killing or wounding combatants who have surrendered (Art 8, § 2.b.vi), intentionally starving civilians as a method of warfare (Art 8, § 2.b.xxv), and using civilian presence to shield areas or forces from military operations (Art 8, § 2.b.xxiii).

The Rome Statute also criminalizes the use of certain weapons in international conflicts, but the list of prohibited weapons was the source of considerable difficulty at the Rome Conference. The list in Article 8, § 2.b.xvii-xx, includes poison or poisoned weapons but does not include nuclear, chemical, or bacteriological weapons. According to Human Rights Watch, when it became apparent that including nuclear weapons would be impossible, due to opposition from some states, many other states favoring their inclusion insisted that chemical and bacteriological weapons be removed as well.11 The list of prohibited weapons is not included in the section on internal armed conflicts.

The Scope of ICC Jurisdiction

Articles 12 and 13 of the Rome Statute allow the ICC to exercise its jurisdiction over the specified crimes under three scenarios. Article 13 states that exercise of jurisdiction may be triggered by a party to the statute (a “State Party"), by the UN Security Council, or by the Court’s own Prosecutor. 12 Referrals by the Security Council are not restricted in terms of where or by whom the crimes were committed. This means that, if the Security Council refers a case to the Prosecutor, the Court can exercise jurisdiction even if the state in which the crimes were committed is

11. Human Rights Watch, "5. THE CRIMES: WAR CRIMES (Article 8)," Summary Of The Key Provisions. 12. Article 42, § 1, establishes an Office of the Prosecutor, which "shall act independently as a separate organ of the Court." [Page 23]

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not a State Party to the statute. However, cases triggered by a State Party or independently by the Court's Prosecutor must, according to Article 12, meet one of two conditions: the crimes were either (a) committed in a state that is a State Party or (b) committed by a national of a State Party. The first condition means that, even if the accused is a person whose state is not party to the statute, the Prosecutor may still trigger the exercise of jurisdiction if the crimes are alleged to have taken place in a State Party's territory. But the ICC cannot independently, through its Prosecutor, exercise universal jurisdiction over crimes committed in non-State Parties by nationals of non-State Parties.

Articles 12 and 13 are among the most controversial in the Rome Statute. On the one hand, many states and human-rights groups who favor a strong court pushed for granting the ICC universal jurisdiction. That the statute falls short of this has led to criticism by groups such as Human Rights Watch. 13 On the other hand, groups and states fearful of an overly powerful court, one that might fail to respect state sovereignty adequately, demanded further restrictions of the Court's jurisdiction. Most notably, the United States pushed for allowing the permanent members of the Security Council veto power in any particular case. The defeat of this proposal, which was overwhelmingly opposed by the delegates to the Rome Conference, has been one of the most important sources of current United States opposition to the ICC.14

The jurisdiction granted by Articles 12 and 13 is limited to some extent by other provisions of the Rome Statute. In particular, Article 17 of the statute is important because it sets out a principle of subsidiarity: the ICC shall not accept jurisdiction in any case where a State with jurisdiction is already investigating and prosecuting the case, or has investigated and decided not to prosecute, unless the State is genuinely unwilling or unable to carry out the investigation and possible prosecution. Article 11, § 1, specifies that the ICC "has jurisdiction only with respect to

13. Human Rights Watch, in "1. ACCEPTANCE OF JURISDICTION," Summary Of The Key Provisions, notes that "in cases other than Security Council referrals, the ICC will only be able to act where the state on whose territory the crimes were committed or the state of nationality of the accused have ratified the treaty or accept the court's jurisdiction over the crime. The deletion of 2 crucial elements of an earlier proposal (the Korean proposal) that would have allowed a state with custody of the accused or a state of nationality of the victims to provide the necessary jurisdictional link, is the major disappointment of the conference. As the state of territory and nationality of the accused will often in practice be one and the same state, and that state may well not be state party, this is likely to be the greatest impediment to the Court's ability to make a difference in the real world."

14. It is one of the key reasons behind the United States' unprecedented renunciation of its signature on the Rome Statute on 6 May 2002 (see BBC News, "US renounces world court treaty," 6 May 2002, <http://news.bbc.co.uk/1/hi/world/americas/1970312.stm>), and its threat in early July of 2002 to veto all UN peacekeeping missions unless U.S. soldiers were granted immunity from the Court. For the renunciation letter, see "International Criminal Court: Letter to Secretary General Kofi Anan," 6 May 2002, <http://www.state.gov/r/pa/prs/ps/2002/9968.htm>. For U.S. Under Secretary for Political Affairs Marc Grossman's explanation, see "American Foreign Policy and the International Criminal Court: Remarks to the Center for Strategic and International Studies," 6 May 2002 <http://www.state.gov/p/9949pf.htm>. For the threat over peacekeepers, see BBC News, "US Criticised in UN Debate," 11 Jul. 2002 <http://news.bbc.co.uk/1/hi/world/americas/2121520.stm>, and footnote 16 below. All sites accessed on 28 Jul. 2002. [Page 24]crimes committed after the entry into force of this Statute,” which was on 1 July 2002.

Two other articles that limit the ICC’s exercise of jurisdiction have acquired much political significance, especially in the United States, since the ICC’s inception. Article 16 allows the Security Council to order the ICC to defer an investigation or prosecution for twelve months (which is renewable) by adopting a resolution under Chapter VII of the UN Charter. This article became the basis for UN Security Council Resolution 1422 of 12 July 2002, which exempts U.S. peacekeepers worldwide from prosecution for a year.¹⁵ Resolution 1422 constitutes the compromise reached between supporters of the ICC and the United States over the latter’s threat to veto all future UN peacekeeping missions unless U.S. soldiers were granted immunity from the Court.¹⁶ Article 98, § 2, states that the ICC will not request the surrender of an accused if it “would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State” without the consent of the sending State. The United States has, in effect, used this article to gain immunity for its soldiers by signing bilateral agreements with States that are Party to the Rome Statute, according to which they agree not to surrender Americans to the ICC.¹⁷

The Judicial Process and Principles of Criminal Law

The process of investigation and prosecution envisaged by the Rome Statute affords the accused many of the standard legal protections familiar in liberal democratic constitutions and legal systems. Article 55, § 1. a,b,d, for example, provides that during investigations persons shall not be “compelled to incriminate” themselves, be “subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment,” or be “subjected to arbitrary arrest or detention.” The same article also allows the accused to remain silent without implying guilt (Art 55, § 2.b), requires that the accused be provided with legal assistance (Art 55, § 2.c), and provides the right to be questioned only

---

15. The text of the resolution is available at <http://www.un.org/documents/scres.htm> (Accessed 28 Mar. 2003). 16. See BBC News, “Dispute over war crimes court settled,” 13 Jul. 2002 <http://news.bbc.co.uk/1/hi/world/americas/2125829.stm>). Many human rights groups as well as a number of states have objected to the compromise Resolution on the grounds that “Chapter VII of the UN Charter . . . mandates the Security Council to act only when there is a threat to or breach of international peace and security or an act of aggression” (Coalition for an International Criminal Court, “UN Security Council Passes ICC Resolution in Contravention of UN Charter,” press release, 12 Jul. 2002, available at <http://www.iccnow.org/html/PressAntiICCProposalPassesSC.pdf>). Others argue that the article was [Page 25]in the presence of counsel (Art 55, § 2.d). Article 66, § 1,2,3, requires that trials be conducted on the basis that "Everyone shall be presumed innocent until proved guilty" and places the "onus" on the Prosecutor "to prove the guilt of the accused" beyond "reasonable doubt" to secure conviction. Article 67 specifies in detail the rights of the accused to a fair and impartial hearing. The maximum penalty allowed for under Article 77 is life imprisonment.

The Rome Statute also addresses the issue of individual responsibility. Article 27, § 1, explicitly rules out "official capacity"—including "official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official"-as grounds for exemption from prosecution or reduction of a sentence. Article 28 holds military commanders and superiors responsible for crimes committed by forces under their command or authority when they either knew or reasonably should have known that the forces were about to commit those crimes. Article 33 denies exemption for criminal responsibility for genocide and crimes against humanity on the grounds that the accused was following the orders of a Government or military or civilian superior. Exemption is granted for war crimes only if the person was under a legal obligation to obey orders, the person "did not know that the order was unlawful," and the order was "not manifestly unlawful" (a rather exacting standard in the case of war crimes). Article 29 provides that no statute of limitations shall apply to crimes within the jurisdiction of the ICC.

Conclusion

The final clauses of the Rome Statue contain miscellaneous provisions about such matters as the amendment procedure and the time of the Statute's entry into force.

only intended for specific cases, not blanket grants of immunity. Canada's Ambassador to the UN, Paul Heinbecker, has argued that it is not "in the mandate of the Security Council to interpret treaties that are negotiated somewhere else"" (quoted in BBC News, "Dispute over war crimes court settled"). The U.S. deems immunity necessary to prevent politically motivated prosecutions of its soldiers in view of its status as the world's only superpower.

Article 16 of the Rome Statue was controversial even before the July 2002 peacekeeping dispute. Human Rights Watch notes in "2. DEFERRAL UPON SECURITY COUNCIL REQUEST," Summary Of The Key Provisions, that, during the Rome conference, "Security Council ability to suspend or delay ICC prosecutions was adamantly opposed by a strong contingent of states throughout the conference. The role of the Security Council, as well as the exclusion of nuclear weapons, was the subject of the Indian motion to amend the Chair's final package, defeated at the eleventh hour of the conference." Human Rights Watch goes on to say that "The final text of the statute (Article 16) strikes a compromise between this view and the text of the ILC draft that would have given permanent members veto over which cases went before the Court. . . . Deferral would require a decision of the Council, and therefore excludes the possibility of one state's veto blocking jurisdiction, but it does leave open the possibility of unlimited renewal and perpetual deferral. Before the Rome conference the U.K. was the only permanent member to support this approach, with the other four [China, France, Russia, and the United States] and Israel supporting permanent member veto power. The opponents gradually revealed their willingness to accept a version of the compromise proposal, the final version of which is in the statute."

All sites accessed 28 Jul. 2002.

17. See BBC News, "US rejects EU criminal court guidelines," 2 Oct. 2002 <http://news.bbc.co.uk/ 1/hi/world/europe/2291451.stm>. Accessed 17 Dec. 2002. [Page 26]Article 120 does not allow signatories to make reservations to the statute—that is, a State that becomes a party to the Rome Statute must abide by all provisions without exception. Article 124 allows a transitional period of seven years after the ICC's inception during which a State Party can withhold granting jurisdiction specifically over war crimes by its nationals or on its territory. Article 121 provides the amendment procedure, which comes into play seven years after the Statute's entry into force. An amendment can be adopted by a two-thirds majority of States Parties, though amendments concerning the specification of the crimes under the ICC's jurisdiction come into force only for those States Parties that have accepted the particular amendment.

As of March 2003, the ICC had 139 signatories and 89 ratifications. 18 Countries of note that are not signatories of the Rome Statute include Algeria, Azerbaijan, Belarus, China, Cuba, North Korea, Ethiopia, Guatemala, India, Indonesia, Iraq, Japan, Kazakhstan, Lebanon, Libya, Malaysia, Myanmar, Nepal, Nicaragua, Pakistan, Qatar, Saudi Arabia, Singapore, Tunisia, Turkey, Turkmenistan, and Vietnam. The United States of America repudiated its signature on 6 May 2002.

There are already signs that the very presence of the ICC is having an impact on the conduct of world politics. Even as I write this, for example, the British military is jointly engaged with U.S. forces in a military assault on Iraq. That British military plans and tactics are first subjected to intense scrutiny by a battery of lawyers reflects in part the fact that the U.K. is party to the ICC and its war-crimes provisions and that the British are keenly aware of (and committed to) the ICC's consequent jurisdiction over their soldiers and civilian commanders in the conduct of the war. 19

But perhaps more important than such immediate and tangible effects is the philosophical assumptions to which the ICC gives expression. The ICC aspires to a radical departure from the traditional model of humanity's political organization under international law. This traditional model is of a society of states each of which enjoys supreme sovereign authority over its respective population and territory. But insofar as the ICC claims universal jurisdiction over individuals as such, across state boundaries, and insofar as such jurisdiction is justified by claiming to derive from the will of humanity as a whole, the ICC claims to give expression to a sovereign authority above the state. It claims, in other words, that humanity itself is a collective political

18. See Coalition for the International Criminal Court, at <http://www.iccnow.org/countryinfo/worldsigsandratifications.html>. The Coalition maintains a detailed “Country-by-Country Ratification Status Report" on its website at <http://iccnow.org/countryinfo.html>.

19. See CBC News Online, "Legalities of War," 27 Mar. 2003, <http://www.cbc.ca/news/iraq/issues_analysis/legalities.html> (accessed 9 Apr. 2003). The presence of the ICC arguably has had an impact on the way in which the United States has conducted the war as well. (The U.S., like the U.K., has also sought extensive advice from lawyers about the conduct of the war.) On the one hand, the ICC Statute has codified norms about military conduct that the United States itself by and large accepts as legitimate, despite its refusal to recognize the jurisdiction of the ICC. On the other hand, the United States is demonstrably concerned about winning over public opinion, both domestically and internationally. The Rome Statute helps to shape moral sensibilities about military conduct by adding further weight to the international conventions and declarations that have become so important for winning over public opinion in military campaigns. [Page 27]

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subject: the ICC grounds its legitimacy in a direct appeal (in the words of the Rome Statute's preamble) to "the conscience of humanity," to "the international community as a whole," and to the "common bonds" by which "all peoples are united." If the ICC is successful, it will give institutional articulation to humanity as a collective political subject. The International Criminal Court ultimately refers not to a society of sovereign states but to a sovereign humanity. 20

20. See Olivier de Frouville, "La Cour pénale internationale: Une Humanité souveraine?” Les Temps Modernes 55.610 (2000): 257-88.

Proclamation

trees to forest sands to beach sun to sky flowers to Spring color to eye salt to sea a needle to sew arrow for bow bell to ring songbird to sing a clock to mark the hours bees to flowers

-PAUL MANTLE

Copyright © 2003 by Paul Mantle.

Paul Mantle works on the help desk at Information Services at the Bahá’í National Center, Evanston, Illinois.

[Page 29]

Pursuing World Order through International Justice and the International Criminal Court

LLOYD AXWORTHY AND ROBERT ADAMSON

More than a quarter of a century ago one of Canada’s greatest political leaders, Pierre Elliott Trudeau, published in this magazine an essay titled "A View of the World Order." In it, he reflected on how interconnected the world had become: "My message... is a simple one,” Trudeau said. "It is that the world is our constituency: yours, mine; governmentally, personally. That world is not just a physical planet with immutable physical laws and finite limits; it is as well a single, interdependent community."¹ This reality of interdependence was no revelation, even almost thirty years ago. Goods and people flowed across borders. Cultures interacted and sometimes collided. It was already a big world getting smaller.

What was new was the understanding of the possible consequences of failing to act in a way that respected that interdependence, that interconnectedness, that sense of what Trudeau referred to simply as a "responsibility." He knew, as did others who then spoke and wrote eloquently about these issues, that we would collectively face serious problems if we failed to conduct ourselves responsibly with the resources of the planet, if we failed to provide for the poor, and if we failed to create meaningful social justice in all corners of the world. Social justice must be available

1. Pierre Elliott Trudeau, "A View of the World Order," World Order 9.2 (Winter 1974-75): 10.

LLOYD AXWORTHY is the Director and CEO of the Liu Centre for the Study of Global Issues at the University of British Columbia and holds positions on several boards and companies, including the MacArthur Foundation and Human Rights Watch. His political career included service in the Manitoba Legislative Assembly and the Canadian Federal Parliament. In his Foreign Affairs portfolio Axworthy became known internationally for his work on the Ottawa Treaty, a landmark document banning antipersonnel land mines. For his efforts in establishing the International Criminal Court and the Protocol on child soldiers, he received the North-South Institute’s Peace Award.

ROBERT ADAMSON is Director of the International Justice Program at the Liu Institute for the Study of Global Issues at the University of British Columbia. A lawyer, he has worked for international law firms, governments, businesses, and nongovernmental organizations. His current interests include risk and liability assessment for international corporations; best-practices initiatives, human rights law, and conflict management; and international criminal law, including the International Criminal Court and universal jurisdiction. [Page 30]to all, Trudeau said, and he emphasized that, “In these final decades of the twentieth century, social justice can no more be compartmentalized than can quality of life be isolated. Justice is found everywhere, or it is found nowhere. Contamination in one community taints every other."2

   Trudeau’s words were prescient and continue to guide us as we attempt to fulfill this challenge: to make justice available everywhere. It is difficult to tell whether we are further ahead or further behind in responding to this challenge. Many would probably suggest that we are further behind. They would point to the increased disparity in wealth around the globe, the ongoing hunger and suffering, the environmental degradation, and the ominous threat of global warming. Others, the more optimistic, would point to the greater number of democratic governments, the improvement of living conditions in the Third World, and the dozens of international treaties on subjects ranging from environmental protection to human rights.

   There are, indeed, reasons to be optimistic. Some important progress has been made. The international community is getting a little closer to promoting the culture of responsibility and international justice to which Trudeau referred. One reason to be more optimistic is that we now have an international institution created to deter the most egregious abuses of human rights and to bring to justice those who have not been deterred. That institution is the International Criminal Court.

   The International Criminal Court (ICC) was the product of many governments, many lawyers, many scholars, over many years, with much negotiation, but with one vision: promoting international justice in all corners of the world, among all people regardless of whether they were political leaders. The purpose was to make sure that justice is found everywhere and that no community has to suffer the contamination of injustice.

   At present, more than 89 states have agreed to take part in the International Criminal Court and are in the process of assuming the obligations that participation requires. Almost 140 states in total have agreed in principle to participate and are considering what that will mean. The Court came into existence on 1 July 2002. As of its 11 March 2003 inauguration, it has eighteen elected, well-respected international jurists and practitioners of international law. In April 2003 the Member States of the Rome Statute establishing the International Criminal Court selected a Prosecutor and continued to build the rest of the Court’s machinery so that it can begin hearing its first cases. Those first cases will address the most egregious violations of human rights: war crimes, genocide, and crimes against humanity and, perhaps, in coming years, the yet-to-be-defined crime of aggression. In principle,

   2. Trudeau, "View of the World Order," World Order 9.2 (Winter 1974-75): 6, 9.

[Page 31]there will be no immunity from prosecution for even the most powerful political and military leaders if there is evidence to suggest that they are responsible for these types of atrocities.

The goal of bringing to justice any one who has committed international crimes that fall under the ICC’s jurisdiction, regardless of that person’s position or privilege, is an integral part of the Rome Statute. The question is whether the goal can be translated into practice. Already there are signs that the exercise of translation that has derailed many an inspired idea may also derail the Court.

First, a powerful opponent of the Court is exerting its political and diplomatic influence to oppose the Court. Although the U.S. government took part in the diliberations about the Court, negotiated and received concessions, and ultimately became a signatory to the Rome Statute, albeit in the final hours, its support of the idea of the Court was only lukewarm and based somewhat more on strategy than on principle. More recently the U.S. government, giving voice to that segment of its population that has always been deeply suspicious of international involvement and jealously proprietary of its own sovereignty, has “unsigned” (that is, repudiated its signature on) the Rome Statute, refused to participate in the Court, and is exerting pressure on countries to grant exemptions to ensure that no U.S. citizen, soldier, or military or political official is ever subjected to the Court’s scrutiny. The U.S. government claims that the ICC will be a political tool of anti-American ax-wielders.

Particularly as the United States pursues its war against terrorism, it is concerned that countries will attempt to use the Court to admonish and indict its soldiers as they attempt to rid the world of the scourge of international terrorism.

THE ACTIONS OF THE U.S. GOVERNMENT, NOT THE POSSIBILITY OF THE COURT’S POLITICIZATION, ARE THE MOST PRESSING THREAT TO THE COURT.

Institutions of justice, including courts, have not always met the highest standards for principled and good governance. Many of these institutions have, indeed, fallen prey to the types of partisan tactics that infect all politics, including democracies such as the United States. Bargains are made. Whom you know often trumps what you know. This should not be much of a surprise. It is pervasive. It is rather presumptuous and pessimistic, however, to assume that the International Criminal Court will follow this path. The Rome Statute that created the Court, drafted by able negotiators who knew the stories of how these types of things fail, is based on strong principles and is designed with many checks and balances. The Court will not, necessarily, be politicized. It can be effective, and it can be a champion of international justice for all and not the tool of anti-American political agendas. The election of its eighteen highly respected and qualified jurists is an illustration of this point.

The actions of the U.S. government, not the possibility of the Court’s politicization, are the most pressing threat to the Court. On 12 July 2002 the U.S. government convinced members of the Security Council to unanimously grant the United States exemptions from the Court’s jurisdiction over its soldiers taking part in UN-sponsored peacekeeping missions. Security Council Resolution 1422 is valid for a [Page 32]year and will soon be considered for renewal. This Resolution has not been the U.S. government's only challenge to the ICC's jurisdiction. Under Article 98 of the Rome Statute the United States has been negotiating bilateral agreements with countries to ensure that they will not hand over U.S. citizens to the Court. The U.S. has already negotiated agreements with more than twenty countries including India, Israel, and Romania. The U.S. government has also communicated its intention to use these agreements to protect its soldiers from an International Criminal Court. Even more recently, the European Union agreed that its members could negotiate bilateral agreements with the U.S. government to transfer to the United States jurisdiction over American individuals who may potentially come before the ICC's jurisdiction. In an attempt to negotiate even more concessions, the U.S. government sent Ambassador Marissa Lino to European capitals to try to ensure that no Americans would be prosecuted by the Court. Fortunately, there has been little success in these diplomatic efforts among EU members.

None of those who have worked for the Court's success should be terribly surprised by the actions of the U.S. government. It is even more set in its view that noneconomic international initiatives are never successful, that they are controlled by political hacks, and that they compromise American sovereignty.

What is more surprising is the willingness of so many countries to acquiesce to the American demands for immunity. After all the years of negotiating, after bringing to life an international institution to prosecute the most egregious of human-rights crimes, after resisting the nonbelievers before, is the international community now going to allow the U.S. government to defeat the aspirations and efforts of so many? For all those who have suffered at the hands of the Idi Amins, the Pol Pots, the Milosevics, the Saddam Husseins, and others who will unfortunately come our way, the world needs the International Criminal Court. If we ever have a hope of bringing peace to the world, stopping the atrocities, deterring the oppressors of humankind, we must first have some way to bring justice to the world. The International Criminal Court is not the only way, but it is an important and credible way.

It should be already be evident to many countries around the world that the International Criminal Court is one of the few potentially effective international legal institutions that have been set up to deal with international criminality. It should also be evident that the Court can be an effective weapon to deter and prosecute the most flagrant forms of international criminality. What may not yet be evident is that the Court is potentially the most effective weapon in the current international war on global terrorism. Although the Court's statute does not explicitly mention international terrorism as a crime, it does mention the types of acts that are committed during an act of terror. Article 7 of the Rome Statute outlines the criteria for a crime against humanity, which includes acts such as murder, [Page 33]extermination, torture, among others, that are "part of a widespread or systematic attack directed against any civilian population." It can certainly be argued that the kind of event that happened on 11 September 2001, the bombing in Bali on 12 October 2002, and the vast array of ongoing global terrorist activities are crimes against humanity. This is something that the international community needs to acknowledge and pursue.

THE RULE OF LAW AND ITS INSTRUMENTS SUCH AS THE INTERNATIONAL CRIMINAL COURT ARE THE MOST EFFECTIVE TOOLS THAT WE HAVE TO COUNTER INTERNATIONAL CRIMINALITY GENERALLY AND GLOBAL TERRORISM SPECIFICALLY,

The rule of law and its instruments such as the International Criminal Court are the most effective tools that we have to counter international criminality generally and global terrorism specifically. The ICC will provide a useful and crucial pressure valve that will permit countries to transfer prosecution of a crime that, if tried domestically, would have potentially destabilizing or violent consequences. For example, the bombings in Bali have further exacerbated the already explosive domestic situation in Indonesia, the world's largest Muslim country. The government of Megawati Sukarnoputri has come under much pressure both from the United States and Australia to pursue the prime suspects in the bombings: Abu Bakar Bashir and the group Jemaah Islamiyah. The prospect of trying a popular Muslim cleric in a country that has already seen a great deal of ethnic and religious violence and is likely to see more is very unpalatable. The prospect of transferring jurisdiction of Bashir to Australia would also be unacceptable as the relations between the two countries remain strained in the aftermath of the violent separatist struggles in the Indonesian province of East Timor. Although the United States continues to exert pressure on the Indonesian government to take action and to be an effective participant in the war against global terror, it does not want to further destabilize Indonesia and perhaps the entire Southeast Asian region.

The International Criminal Court presents an avenue to relieve the domestic pressures in Indonesia while ensuring that acts of terrorism do not go unpunished or undeterred. Although Indonesia has not yet agreed to participate in the Court, it could make arrangements to agree to the Court's jurisdiction, if only for this case. In so doing, the Court, with judges from around the world, would become an instrument of international justice and would deal with an incident of international terrorism in a way that could not be dismissed as politically motivated.

The International Criminal Court can also be important and necessary to the United States. Not only would it be important as a method of dealing with politically explosive cases such as the one in Indonesia, it could also be a necessary component in America's own war on global terror. Although the United States has been successful in capturing some of its terrorist foes, holding them in detention, calling some of them unlawful combatants, creating special criminal procedures for dealing with them, and modifying its legal system to respond to the terrorist threat, it is unclear whether these efforts will eventually be deemed to be in contravention of the United [Page 34]States' own legal system, including its Constitution. Various important cases have already been heard at the trial and appellate court levels and are making their way to the Supreme Court. Some cases are already on the Supreme Court's docket. It may very well be the case that the steps that have been taken and the way at least certain individuals have been held-with charges being laid and without access to legal counsel will be deemed contrary to U.S. domestic law. It may also be the case that a U.S. court will decide that, under the U.S. Constitution and in the current environment, it would be impossible to guarantee a fair trial to suspected international terrorists in the United States. Therefore, having an International Criminal Court may provide a more effective prosecutorial avenue for the government of the United States as it conducts its war on global terrorism.

Terrorism is an international crime with which neither the United States nor any other nation can deal alone. The International Criminal Court has a great deal of promise, some of which the international community has not yet assessed or embraced. Although the Court has judges and a staff and soon will have a Prosecutor, it is still very much in its infancy. Before it can prove itself to the world as an effective and apolitical foundation of the international justice system, the ICC must rely on and convince others of its powerful principles. Hence, if we are going to remain steadfast in our commitment to these principles and to the promise of an International Criminal Court to deter and punish the most inhumane acts of criminality, we cannot allow the Court to die the death of a thousand wounds. We cannot acquiesce again in the way that the some members of the international community have through the Security Council Resolution 1422 negotiations. We cannot acquiesce and accept a proliferation of Article 98 agreements. The attempts of the U.S. government to get countries to sign those agreements and to reject participation in the Court must be resisted.

Unfortunately, the Court cannot speak for itself on these issues. As yet, the Court has no spokesperson. It has no face. It has taken on no cases. It has not been able to illustrate to the world what it can do. It has no way to prove to the world, and to the United States, that it will not be an incompetent group of hacks wielding a political ax against America. But that was not the nature of the process that created the Court. That was not the intent and does not have to be the reality. If all governments take the Court seriously, it can fulfill the promise of the design. Bringing justice to all regardless of place or privilege always has its challenges. It will, admittedly, be a challenge for the International Criminal Court as well. But there will be no opportunity whatsoever for success if the international community allows all of the Court's power and credibility to dissipate before it even embarks upon its job. For all those who have worked for the Court's creation, for all those who have agreed to participate, and for all those who sincerely want to ensure that there is no impunity for those who unleash unspeakable human carnage, there is a moral and legal responsibility not to acquiesce. Without this commitment, we will squander one of the most important opportunities ever to promote international justice, the rule of law, and the freedom from fear for which we all yearn. [Page 35]

The Song

The nightingale sings a jubilant song Touch my hand filled with desires, Endowed with divine grace, and armed with the Power of Thy Name to break the chains and fetters, passing through clouds of Glory, blowing away shadows of darkness, following destiny at daybreak. How weak I am, Oh God! How weak! I have myself to change, only this, one self; on hearing the nightingale sing, setting in motion stars on the breezes of spring!

-VICTORINO D’ARAUJO

Copyright 2003 by Victorino D’Araujo. Victorino D’Araujo is a retired hotel manager living in the Netherlands.

[Page 37]JIM STOKES

IS A COMMON CONSCIENCE POSSIBLE IN THE MODERN WORLD?

I would we were all of one mind, and one mind good. -Shakespeare, Cymbeline

THE MODERN DILEMMA

In the final pages of Homer's Odyssey, after ten years of war in Troy followed by ten years of wandering in a quest to find his way home to Ithaka, his island kingdom in the seas of western Greece, Odysseus has returned, cleared his house of Penelope's usurping suitors, and been reunited with his wife and son. But a blood feud now rages between him and the relatives of the suitors whom he has slaughtered. As the vengeful relatives approach, bent on attacking the palace of Odysseus, Athena, the Greek goddess of wisdom who has guided Odysseus in his battle with the suitors, anxiously seeks enlightenment from Zeus, "Father of us all and king of kings.'

"What," she asks him, "is your secret will?" There is only one proper way, Zeus answers, now that the honor of Odysseus has been satisfied. All should enter into a pact naming Odysseus legitimate king; if they do, Zeus, for his part, will blot out the memory of earlier bloody deeds. "Let men of Ithaka henceforth be friends; / [and] prosperity enough, and peace attend them," he says.¹

Copyright © 2003 by Jim Stokes. An earlier version of this article was presented as part of a program, "Peace and Conflict: An Invitation to Expression," sponsored by the Social Justice Committee of Marian College of Fond du Lac, Fond du Lac, Wisconsin, in April 2002. The author would like to thank the H. F. Guggenheim Foundation, which sponsors research that seeks to "increase understanding of the causes, manifestations, and control of violence, aggression, and dominance," for a 1992 grant to study the causes of social violence in seventeenth-century Somerset, England. The grant provided the impetus for the thinking and research that made this essay possible.

1. The Odyssey, trans. Robert Fitzgerald (New York: Doubleday, 1961), rpt. in The Norton Anthology of World Masterpieces, 6th ed., vol. 2 (New York: Norton, 1992) 538 (24.488-89, 502–03). Page, book, and line numbers are those in the Norton edition.

A professor of English at the University of Wisconsin, Stevens Point, Stokes published in 1996 with the University of Toronto Press a two-volume work entitled Somerset: Records of Early English Drama. He is currently on a fellowship at the Institute for Research in the Humanities in Madison, Wisconsin, finishing a similar volume on early English drama in Lincolnshire. [Page 38]But peace is not at hand. As the vengeful relatives approach the palace of Odysseus, Laertes, the father of Odysseus, preemptively lets fly a spear, killing the ancient leader of the troop of the suitors' relatives; then the forces of Odysseus attack their approaching enemies, intent on slaughtering them all, and beginning to achieve that end. Horrified, Athena cries out, “end your bloodshed, Ithakans, and make peace." But Odysseus is filled with a bloody rage. Like a ravening eagle, he begins to pursue his enemies as they flee. At that point, from within the clouds, Athena delivers a stern and earthshaking counsel: "Odysseus, master of land ways and sea ways, / command yourself” [emphasis added]. When Odysseus listens and yields to her, Homer says "his heart was glad." Later, both camps swear to terms of peace set by Athena; and she, the poet tells us, remained with them, disguised as Mentor (the wise counselor).3

Homer's magnificent poem addresses one of the deepest yearnings and most elusive goals of war-weary peoples everywhere: achieving a peace that can weather the tempests of war, time, and human passion. But while permanent peace descended upon the poetic world of Ithaka, our actual world still seeks a way to usher in such a golden age.

The final pages of The Odyssey seem strikingly contemporary in that they offer both a picture of a world the dilemma of which mirrors our own and a timeless paradigm of the process, one might argue, that we, too, must follow if we hope to bring about that longed-for peace and collective security. The principles that the final pages of The Odyssey encapsulate, together with their modern equivalents, would seem to be these:

1. Like the wars of our own times, the feudal wars that bedeviled the world of The Iliad and The Odyssey are driven by issues of honor, disputed territory, and religious and cultural competition. Above all, they are driven by memory of earlier wrongs.

2. Then, as now, God chooses to communicate indirectly through intermediaries. In Homer's work, Zeus speaks to Athena, who in turn counsels Odysseus but speaks to the Greeks collectively in the voice of a human intermediary, the wise counselor Mentor. In our time, God speaks, we generally believe, through the texts of the various religions, through the greatest poets (whose works constitute a kind of secular scripture), and through a chorus of spokesmen who claim to be able to interpret those texts, traditions, and voices. But God's will (through these voices) is generally clear: Humanity would be well advised to seek to establish peace. The exceptions, of course, are the apocalyptic nihilists presently using the pages of scripture as an argument for just the opposite—the justification for attacks upon peoples, cultures, and religions other than their own.

3. Then and now, accepting a legitimate governing authority, however imperfect it may seem, is the essential prerequisite to peace. That is the decree of Zeus

2. Odyssey 539 (24.552). 3. Odyssey 540 (24.564–65, 567). [Page 39]in The Odyssey, and our own world is coming to recognize that it, too, must seek out some system of collective governance that all could accept as legitimate and that can ensure peace. This required epochal shift from war to peace, from rage to reason, follows from the basic insight, the sudden perception that the present mindset is leading to imminent extinction and that a previously unthinkable action is necessary: One world view must give way to another.

4. The acceptance of that legitimate authority opens the door to previously unimaginable developments. Acceptance, Homer says, brings with it Zeus' promise of what would, in effect, be a collective miracle-the descent of a great forgetfulness, blotting out the memory of earlier deeds and misdeeds. In our own time a superior vision would somehow have to eclipse the memory that drives rage-filled mindsets and actions, thereby consigning them to a perpetual shade.

ACCEPTING A LEGITIMATE GOVERNING AUTHORITY, HOWEVER IMPERFECT IT MAY SEEM, IS THE ESSENTIAL PREREQUISITE TO PEACE.

5. The acceptance of that authority amounts to a collective departure from rage to reason. In The Odyssey the warring Ithakans, including Odysseus, acknowledged the possibility of turning toward peace, but they could not give up their bloody rage. In our own time national, ethnic, religious, and cultural angers occupy the foreground of human minds in deciding which course of action to take. The sheer noise of anger dominates the world scene.

6. As yet, there seems to be no mechanism for effecting that profound change. In The Odyssey, working through Athena, Zeus places the matter squarely in the hands of the Ithakans themselves, limiting himself to a warning that is almost apocalyptic in its gravity: Decide to stop fighting, or you will be doomed to endless war and certain death; follow your rage, or make a decision that will open your hearts to a new way. In our own time, analogically, all paths to peace must pass through the human mind, the thoroughfare to the conflicted human heart.

Riven by ten years of war, followed by ten years of intrigue, Ithaka faced extinction. Our own ideologically riven age labors in a maze of competing interests. The solution embedded in the words of Zeus is that factionalism must give way to a single vision, a set of understandings to which all can subscribe. Ithakan society, and our own, must somehow arrive at a common set of agreements about what constitutes the collective good; they, and we, must, in effect, construct a common conscience.

IMAGINING PEACE

The problem today, as it was for the Ithakans, is not with the goal; nearly everyone except apocalyptic nihilists wants peace. Nor is it with the responsibility. People generally agree that human beings, not God, will have to construct the great peace; it probably will not arrive by divine fiat in a way that would displace the need for free will and human judgment. God does not seem to work that way. [Page 40]

JIM STOKES

Instead, the problem seems to be a massive failure of imagination and thought—the inability to realize a new vision, one both appropriate to the moment and capable of reflecting a fundamental change in the perception of reality. Homer makes it abundantly clear that, preceding consultation among the warring factions, or accepting a governing authority, or crafting a permanent peace, there must occur a primal act of individual and collective will, the conscious choice, inspired by a voice from within, to listen, to yield, and to be glad. He might as well be giving advice to our own world. But listen to what? Yield to what? What is the qualitative change in the perception of that which is essential (and, therefore, true)?

For Bahá’ís, as for many other people, there is no more compelling, urgent matter facing humanity than the need to create a stable and lasting peace that encompasses the globe. As do many other concerned people, Bahá’ís recognize that creating peace—in effect creating a new world—requires a collective change in thinking of the most fundamental kind, at once more simple and more complex than any other event in their lives.

Such primal revolutions in thinking and belief—the kind that usher in a new age, create a new consciousness, inspire ways to build a just and peaceful society, and create a new idea of culture that subsumes what had gone before—are extremely rare in history. They differ in magnitude and kind, and are more comprehensive and systemic, than the lesser progressive changes that endlessly take place in human history.

Primal revolutions involve a change in the perception of principle that is new conceptual bedrock but is also accessible to any dispassionate mind. They reflect ideas that are as intellectually strong as spun steel, yet so flexible that they attract rather than compel allegiances. They articulate a set of first principles from which all others thereafter flow but which resonate with (and often echo) earlier principles. Above all, they address and subdue the essential causes of conflict in the world at the time when they are written, even as they create new conflicts. Moreover, they function as correctives, beneficially and benevolently linked to the traditions of the past, rather than as strange, unrecognizable, and un-contextually new initiatives that disdain the past. Yet at the same time they must be so fresh and new that they eclipse those selfsame traditions. They must, in short, be the finest new ideas of their age, but they must also have something approaching the spiritual authority of tradition.

Such revolutions in thinking seem to be the culminating moment of a long historical process. Scholars generally agree that The Odyssey, for example, compresses the events of a vast range of history, religion, and myth into a few pages of sublime poetry. Many even question whether an actual poet named Homer existed, arguing, instead, that we should see the poem as a kind of summation of Greek wisdom about the human condition. In his simple comment that Odysseus listens, yields, and is glad, Homer seems to be describing, in extremely condensed fashion, such [Page 41]an intellectual, spiritual, and ethical revolution in Ithaka (and, therefore, in the paleo-Greek world for which he was writing). This is a poem about the most serious theme in the world: how a human community finds a way to survive.

One can locate other examples of such culminating moments in history. The words of Christ in the Gospel according to St. Matthew, for example, do the same thing. In an astounding spiritual and intellectual tour de force, as related by Matthew, Christ systematically, but succinctly, reinterprets and refines every single important principle of Jewish law as it relates to personal spiritual life. The spiritual genius in His words, as reported in the Gospels, is so acute that His observations become what amounts to an apocalyptic critique of the Jewish worldview, an act of perception that permanently changed the world, both for those who accepted it and those who did not. Christ's words do not generally reject the earlier principles of Judaism; they refine them in ways that require their adherents to perceive the older principles in a new light-one that requires a new perception of their inner, as well as their literal, application. For example, in the Sermon on the Mount, Christ reaffirms the Old Testament prohibition against taking a life ("Thou shalt not kill") but modifies it to mirror a new way of thinking: "But I say unto you, That whosoever is angry with his brother without a cause shall be in danger of the judgement. . . . Agree with thine adversary quickly, whiles thou art in the way with him...." (Ex. 20:13; Matt. 5:22, 25).

Six hundred years later Muhammad committed no less a revolutionary conceptual act in the Qur'an. That mighty work systematically reinterpreted the earlier holy stories and traditions of Christianity and Judaism so compellingly that its insights unified traditionally warring polytheistic tribes and infused them with a new belief in pervasive monotheism and the concept of spiritual nationhood, both of which drive Islamic beliefs and actions to this day.

VISIONS OF A NEW WORLD

Our own quest for a new conception of society can also be seen as the culmination of a vast historical process. The fall of Rome in the early fifth century brought the permanent end of both the Pax Romana and of a single unifying system of civil government in Europe. For nearly sixteen hundred years thereafter, the West, like other civilizations, has sought to realize a world governed by a newly unifying vision, universal principles, spiritual unanimity, and collective social peace. That quest is preserved in literary, historical, and religious documents of many kinds.

Responding to the terrors arising from the collapse of Rome, Augustine's Neoplatonic City of God, for example, envisioned parallel cities, one celestial, the other an earthly mirror of the celestial one. In the harsh reality of the post-Roman world, those early earthly Christian communities often took the form of spiritual fortresses-self-contained abbeys, monasteries, and priories, offering refuge from the horrors afflicting the rest of society.

Eventually the vision articulated by Augustine succeeded, however imperfectly, on a spiritual, if not a political, level. Though Western Europe lacked political unity, it did develop a single religious civilization inspired by Christ's teachings, unified by the Latin language, and guided by Christian teachings and practices as [Page 42]promulgated by the Church of Rome. The Byzantine Christian Church of the East, of course, had its own line of authority, language, and understanding of those teachings. Until the Reformation any Christian could go anywhere in Western Europe, it has often been observed, and worship at the same mass, share the same fundamental metaphysical conceptions, and agree concerning the essential obligations to one's God, one's master, and one's self. It was a world that generally accepted the idea of an endless hierarchical chain of order and degree, an assumption that truth lay hidden in the world, and an enforced agreement that the right and obligation to interpret that reality lay with the ecclesiastical hierarchy.

The vision of the world as a shining city on a hill recurs throughout Western utopian and religious literature, reflecting the endless quest to transform society into a city of peace that would mirror the celestial city. One can see that vision in Dante's Paradiso and in the English medieval poem The Pearl, whose dreamer is allowed to glimpse that city across a river but is not allowed to cross over to it. In both cases the pilgrim-dreamer's guide is an idealized and beatific maiden. One can see the same vision in Langland's Piers Plowman and Bunyan's Pilgrim's Progress. As an image, this ideal world effloresces in the Renaissance, notably in More's Utopia, Bacon's New Atlantis, and Spenser's Faerie Queene, with each of those works developing its own vision of that spiritual city in the context of that particular author's other purposes (political, philosophical, or aesthetic). It remains a central image of the Western visionary mind, inspiring its dreams.

THE HISTORICAL SEARCH

For almost a millennium governments and inspired leaders in the West have also drafted successive political documents reflecting the attempt to identify and articulate the principles upon which a just society and a practical peace might be built and then to incorporate them, with varying degrees of success, into systems of laws, codes, statutes, and traditions. Among them are "the three great landmarks of the English constitutional tradition”—the Magna Carta (1215), the Petition of Rights (1628), and the English Bill of Rights (1689).4 Others include, of course, the U.S. Bill of Rights (1791), the French Declaration of the Rights of Man and of the Citizen (1789), similar documents subsequently written by many nations, and the United Nations Universal Declaration of Human Rights (1948). Each of these documents (and many others) has brought incremental improvement to the human condition. The U.S. Constitution and Bill of Rights remain one of the finest conceptual beacons of hope, politically speaking, to the peoples of a suffering world.

But if one looks at these documents closely and objectively, as if seeing them for the first time, one cannot help but see that, while they reflect and are inspired by a collective yearning for societal structures that will provide safety and protection and a more balanced distribution of power, they are essentially practical and political rather than utopian or spiritual and that they are surprisingly circumscribed in their language and vision. They are essentially the assertion of individual and constituent

4. See <http://gi.grolier.com/presidents/ea/side/bilright.html> #4. [Page 43]rights in opposition to an overbearing central authority. They are less the articulation of a vision than the assertion of a political battle line. They are binary and oppositional, positioning "the people" in such a way that they can defend themselves against tyranny by governing bodies even while setting up a system of government based on the protection of individual rights. One can infer the principles that inform them, but the documents themselves are not mainly statements of religious or visionary principle. Every assertion in the Bill of Rights that "No one shall" infringe, violate, be held to answer, and so on is an enthymeme, implying a larger underlying principle, without actually articulating it. The sublime exception is the Declaration of Independence (1776), which asserts unequivocally that all "men" were created equal by God and that their rights, therefore, are divinely given.

THE UNIQUE ROLE OF RELIGION

Noble though they are, these documents represent a bare minimum. Though powerful and good, they are not fundamental and foundational in quite the same way as was, for example, what Christ said in the Gospel according to St. Matthew. The difference, as Matthew observes with some wonder, is that Christ (as would Muhammad later) articulated His principles with "authority," meaning with the certainty that they reflected the will (and to a Christian, even the voice) of God and were, therefore, not just nice ideas but necessities required in moving humanity from madness to sanity.5 They were the articulation of a kind of spiritual common law, a set of universally applicable first principles forming the cornerstone for a common conscience within that society. Athena (presumably a literary surrogate for one of God’s prophets) spoke with the same authority. So did Muhammad.

The foundational building blocks of a spiritual common law can come only from religion. But the onset of the Protestant Reformation, together with many other forces, brought to an end the traditional common conscience in Christian Western Europe. Since the time of Martin Luther (and, indeed, from the time of the English reformer John Wycliffe), the culture of Europe and of the world has increasingly been characterized by competing spiritual ideologies that hold profoundly differing views of the nature of human beings, their place in the universe, the nature of that universe and how to comprehend it, the role of God in the world of being, and the proper form of spiritual authority—all fueling seemingly irreconcilable social divisions. Islam and other great civilizations experienced similar conceptual splintering. The birth of the modern world in the sixteenth century ushered in the age of competing ideologies in Europe, a situation that continues to be the signature feature not only of the Christian West but of the entire world. The single greatest belief today, one held by many people, is that a common conscience is no longer possible or, for many, even preferable. But unless one is to despair, one has to believe that our age is capable of finding its own unique voice, its own grammar of survival, accessible and ultimately acceptable to everyone.

5. See Matt. 7:29. [Page 44]JIM STOKES

PRINCIPLE AS THE NEW FOUNDATION

Clearly the problems facing the modern world seem both utterly intractable and cataclysmically explosive. The need for a change in consciousness of equal magnitude seems obvious. But what is the nature of that change in our own time? What insights would be so revolutionary in their intellectual magnitude and so spiritual in their authority that they would initiate the building of an intellectual edifice within which the miracle of that great forgetfulness could appear, providing the underpinnings of a Pax Humanitas?

THE FUTURE MUST COMPETE WITH, AND EVENTUALLY DEFEAT, THE PAST.

One might return again to Homer for the beginning of an answer. The Iliad and The Odyssey represent the two great spheres of human activity—the process of war and the process of peace. If The Iliad proves that it is difficult to make war, The Odyssey proves that it is at least as difficult to make peace. The Iliad charts the ten years that it took to fight the Trojan War; The Odyssey charts the ten years that it took for Odysseus to find his way home, in every sense of the word; in recovering his ability to function in a peaceful society, Odysseus had to be reborn not once but many times. If he and his society are to survive, Odysseus must learn a new way to think and speak, a new mode of being. He must abandon the law of separation and opposition for the law of accommodation and inclusion. He must abandon the language and thinking of war and learn the language and thinking of peace. Undertaking any such fundamental change in thinking, for him and for anyone, must surely sometimes be terrifying because it can seem to threaten one’s most fundamental and cherished assumptions and beliefs.

But how might one find that particular language? The final lines of The Odyssey offer a key. The poet says that

Both parties later swore to terms of peace set by their arbiter, Athena, daughter of Zeus who bears the stormcloud as a shield— though still she kept the form and voice of Mentor.6

The passage seems to be saying that the framework—the language and the fact—of their peace emerged out of a collective search for, and fashioning of, that accord. Their deliberations took the “form and voice of Mentor,” meaning that they spoke not with passion but with reason and that their reason was suffused with wisdom. They learned peace (and its terms) through the process of making peace. Perhaps these words of the poet offer insights useful in our own desperate quest to find a language of peace, a common conscience.

The first insight would seem to be that undertaking their search required of the Ithakans (as it does of us) a growing belief that something new is not only genuinely possible but essential. The future must compete with, and eventually defeat, the past. There is no evidence that humanity has ever found its future by reverting to its past. Witness the present conundrum confronting fundamentalist Islam. The

6. Odyssey 540 (24.568-71). [Page 45]

IS A COMMON CONSCIENCE POSSIBLE?

world can return neither to a mythical golden age that never actually existed nor to an earlier historical period in which a given civilization enjoyed relative intellectual and spiritual hegemony. Any change in thinking must respond to the realities of the times, which in our own age means a century just ended of mind-boggling, uniquely revolutionary advancements in every sphere of human activity, with more occurring daily. For the first time, every part of the world is interconnected, interrelated, and interdependent. Any shift must acknowledge that changed reality and articulate universally applicable principles reflecting our newly, permanently integrated world. Only such foundational principles can induce the blotting "out of memory" that Zeus promised Odysseus.

It would seem to follow, then, that the discovery of such principles cannot be a syncretic exercise in which people of good will simply pluck the best ideas from every source and cobble a pastiche of idealistic sentiments, bromides, and pious assertions. On the face of it, the discovery of the spiritual operating principles for our age cannot be a mere process of recovery because some of those necessary principles would not have been applicable, or even conceivable, in an earlier age. Rather, one believes, they reflect necessities nascent in the realities of our own age. Such a view implies a belief that history is not over, that truth continues to unfold, and that seeking truth is our essential activity as human beings.

But neither should the search for a common conscience encourage rejection of the truth in one's inherited beliefs. The search for a common conscience requires a kind of dual sensibility. One should retain an absolute belief in and commitment to the truth that occurs in one's own religion but also develop an equally absolute certainty that higher, more inclusive, equally essential—but suprasectarian—first principles exist to be discovered, a set of truths that transcend any given religious denomination and are grounded in necessity; they are spiritual without necessarily being "religious," in the sectarian sense. They are part of the spirit of the age.

Such a fateful enterprise, the Greek example implies, is far too big for any one person or group to claim exclusive ownership; by definition it requires collaboration of the highest kind. The message from the Ithakans, it would seem, is that no one among us is sole possessor of "the truth" but that a common conscience will arise and its principles will emerge from a collective search for them. Contributions will come from many quarters, and one must be willing to recognize the articulation of something genuine, whatever, and however surprising, its source. In that spirit, one finds the Bahá’ís, for example, freely and repeatedly addressing the matter of peace in the ongoing global discussion that must continue into the uncharted future. As a way of engaging with that process, a summary of some Bahá’í perspectives on humanity's collective search for a common conscience may offer useful insights into the sea-change in thinking and sensibility that must take place.

The quest to establish a stable and lasting peace has always been one of the principal concerns at the center of the Bahá’í Faith. Its perspective has been global since the moment of its inception. Its teachings, though originating in what was

7. Odyssey 538 (24.500). [Page 46]then an obscure and isolated corner of the world (mid-nineteenth-century Persia), have always been directed toward the entire world of humanity. Its teachings have always been based on a framework of universal principles that were first articulated between 1850 and 1892 by Bahá’u’lláh, the founder and spiritual wellspring of the Faith, and amplified by ‘Abdu’l-Bahá, Bahá’u’lláh’s son and successor as leader of the Faith; and promulgated by the Bahá’í community as core principles for establishing world peace.

The description at the end of The Odyssey makes clear that the Ithakans, in framing a peace, replaced passion with reason, unbridled emotion with careful thought. The teachings of Bahá’u’lláh place the human mind at the center of the world of being and identify sincere, unfettered thought and reflection, in the first instance, as the most important human act. "One hour's reflection,"" Bahá’u’lláh says, "is preferable to seventy years of pious worship.""8 In His own teachings Bahá’u’lláh articulated (among many other things) a set of announcements, each of which prescriptively unshackles the mind by replacing a convention that belongs to the language of separation, exclusion, and conflict (the language of war) with an inclusive, universal principle (the language of peace). Variously called principles, or candles, or pillars, or foundations of world unity, these principles vary in number depending on how one groups and classifies them. But each articulates a universally inclusive perspective on a problem of overwhelming concern to the modern world. Each contributes to an intellectual foundation on which a common conscience (and eventually a lasting peace) might be established.

In His tablet, or letter, entitled "Bishárát” (Glad-Tidings), for example, speaking with what the Bahá’ís believe is divine authority, Bahá’u’lláh abrogates (among other things) holy war, the destruction of books, and limitations on association and companionship with any peoples. The schismatic factionalizing of humanity on whatever grounds, He declares, belongs to an earlier age and is no longer appropriate. In His "Tarázát” (Ornaments), He announces that everyone should acquire knowledge, which by definition requires universal, intellectual suffrage, and with it the obligation to use that knowledge with integrity of character." In His "Kalimát- i-Firdawsíyyih” (Words of Paradise), He exalts the unity of humanity, mandates universal education, and counsels all to avoid strife, to use moderation, and to seek wisdom. Each of these letters-and many others-addresses the entirety of humankind (not just one or more of its factions) in terms of loving admonition, acting (if one may continue the Greek analogy) as a kind of divinely inspired Mentor to humanity.

8. Bahá’u’lláh, Kitáb-i-Íqán: The Book of Certitude, trans. Shoghi Effendi, 1st pocket-size ed. (Wilmette, IL: Bahá’í Publishing Trust, 1983, 1998 printing) 238. 9. Bahá’u’lláh, Tablets of Bahá’u’lláh revealed after the Kitáb-i-Aqdas, comp. Research Department of the Universal House of Justice, trans. Habib Taherzadeh et al., 1st pocket-size ed. (Wilmette, IL: Bahá’í Publishing Trust, 1988, 1998 printing) 28. 10. Bahá’u’lláh, Tablets of Bahá’u’lláh 39-40. 11. Bahá’u’lláh, Tablets of Bahá’u’lláh 60, 67 (unity); 73 (universal education); 60, 70, 73 (avoiding strife); 69 (moderation); 67 (wisdom). [Page 47]

IS A COMMON CONSCIENCE POSSIBLE?

Bahá’u’lláh not only annunciated such principles in numerous revelatory writings but also fearlessly proclaimed them in a series of letters written between 1866 and 1874 to the major rulers, religious leaders, elected oficials, and, collectively, all the peoples of the world. Except for the response of those individuals who were moved by His teachings to join His Faith, much of the nineteenth-century world ignored His call. His son ‘Abdu’l-Bahá found more receptive ears within the society of pre-World War I Paris, London, and America when He elucidated His father's teachings in a series of talks that were subsequently published. 12 In 1985, at a moment of great international urgency, the Universal House of Justice, the supreme governing and legislative body of the Bahá’í world, issued a classic statement entitled The Promise of World Peace, addressed to the peoples of the world, repeating the call of Bahá’u’lláh, rearticulating his principles, and showing the urgency with which those principles must be applied in human affairs. 13

In retrospect, one of the most notable qualities of The Promise of World Peace is not simply the palpable sense of urgency and concern that it expresses but the excitement and optimism that also pervade its pages. "The Great Peace towards which people of goodwill throughout the centuries have inclined their hearts," it begins, "is now at long last within the reach of nations." Later it asserts that the "source of optimism we feel is a vision transcending the cessation of war and the creation of agencies of international cooperation.”14 The optimism found in The Promise of World Peace is the optimism of those present at the birthing of a new world.

But, as was true of the poet of The Odyssey, The Promise of World Peace (based on writings of Bahá’u’lláh and ‘Abdu’l-Bahá) articulates the fearsome choice facing "all who inhabit the earth”: peace will come, it warns, either after horrors or through "an act of consultative will."15 The peace statement's other striking quality—aside from its uncommon eloquence and elegance of style-is its repeated challenge to the world's leaders in every facet of society to show intellectual courage and to take actions that will institute the process of peace.

However, the progress toward that great peace is proving to be excruciatingly tortured, and the Universal House of Justice continues to express its concern with an intensifying sense of urgency about the imminent dangers facing humanity. In

12. See, for example, ‘Abdu’l-Bahá, Tablets of ‘Abdu’l-Bahá Abbas, 3 vols. (New York: Bahá’í Publishing Society, 1909-16); ‘Abdu’l-Bahá, Foundations of World Unity: Compiled from Addresses and Tablets of ‘Abdu’l-Bahá (Wilmette, IL.: Bahá’í Publishing Trust, 1945); ‘Abdu’l-Bahá, Paris Talks: Addresses Given by ‘Abdu’l-Bahá in 1911, 12th ed. (London: Bahá’í Publishing Trust, 1995); and ‘Abdu’l-Bahá, The Promulgation of Universal Peace: Talks Delivered by ‘Abdu’l-Bahá during His Visit to the United States and Canada in 1912, comp. Howard MacNutt, new ed. (Wilmette, IL: Bahá’í Publishing Trust, 1982, 1995 printing); ‘Abdu’l-Bahá, ‘Abdu’l-Bahá in London: Addresses and Notes of Conversations (1921; London: Bahá’í Publishing Trust, 1982); ‘Abdu’l-Bahá, ‘Abdu’l-Bahá in Canada, rev. ed. (1962; Thornhill, Ontario, Can.: Bahá’í Canada Publications, 1987).

13. The Universal House of Justice, The Promise of World Peace: To the Peoples of the World (Wilmette, IL: Bahá’í Publishing Trust, 1985). The letter was also published in World Order 20.2 (Winter 1985-86): 5-17. For references to the urgency, see the introductory section of the letter, PP. 5-7.

14. The Universal House of Justice, Promise of World Peace 13, 34.

15. The Universal House of Justice, Promise of World Peace 13. [Page 48]2002 it released a statement similar to its earlier peace statement, but this time addressed specifically to the religious leaders of the world. In stark, uncompromising terms (similar to those used by Athena in her warning to the feuding Ithakans), the letter calls upon the leaders of the world's religions to take back the lead that should be theirs in eradicating the exclusionary thought that divides and enflames populations. They should, the letter says, replace it with a unifying recognition that "all of the world's great religions are equally valid in nature and origin." Religious leaders, the letter further affirms, must help people to see “themselves as the members of a single human race." Otherwise, "the rising fires of religious prejudice will ignite a worldwide conflagration the consequences of which are unthinkable.”16

What are these healing intellectual and spiritual building blocks, or principles of inclusion, articulated by Bahá’u’lláh, from which a common conscience might emerge?

The first principle of inclusion is the assertion that every person on the earth is a fully enfranchised member of a single human family, equal with everyone else in that family. This sweet and gentle-sounding principle seems wonderfully simple and easy to accept; however, it actually requires a transformative command of self as soul-shaking as the choice that confronted bloody-minded Odysseus. Its entailments are vast and difficult.

First it presumes that all human beings—man and woman alike—are entirely equal because they share the same essential feature that makes them human—a rational soul, the essential activity of which is to think and to make sense of reality.

To accept this particular principle of inclusion, as expressed by the Bahá’í scriptures, one must abandon one of the principles that govern the world's societies, all of which live by separating humanity into camps (the infidel, the damned, the believer, the saved, the unsavable, the elect, the gentile, the privileged, the clean, the other, the enfranchised, the ruling—to name a few of humanity's operative and divisive distinctions). It means that no one—man or woman—can be excluded from taking part in any sphere of human activity, whether science, or art, or commerce, or any other enterprise that one chooses, and that, indeed, any activity actually requires the possibility of universal inclusion. It means the end of the idea of woman as property, the caste system, the class system, female genital mutilation, the drowning of girl babies, honor killings, and so on. It means the end of holy war. It means the end, for example, of being surprised, in spite of oneself, if one encounters a black African who wishes to spend his or her life studying, say, medieval English manor farms (rather than something "African"). At the moment such a concept of

16. See The Universal House of Justice, "A Challenge to the World's Religious Leaders," World Order 33.4 (Summer 2002): 11, 9, 16. [Page 49]

IS A COMMON CONSCIENCE POSSIBLE?

universal inclusion is unthinkable to most of the world's population. But without it peace can never come, and humanity will continue to inhabit the kind of world that its divisive thinking deserves.

The second principle of inclusion, devolving from the first, is the universal right to explore reality for oneself. Put another way, it is universal intellectual enfranchisement, the right to think. Though it sounds no less benign nor less self-evidently true than the oneness of humanity, this principle is also no less capable than that one of inducing trauma. It elevates the activity of the individual human mind and consciousness above blind adherence to social authority, or tradition, or even organized religion. It asserts the right to think the unthinkable (if necessary). It does not, of course, inevitably elevate the product of one's thought to the status of truth; one can think deeply and produce volumes of idiocy. But it does elevate the search itself to the level of the sacred-a necessity in our time and, therefore, a universal right.

The obvious corollary to freedom of thought is the freedom to express those thoughts without fear of being suppressed or even killed. The law of war demands lockstep convention and a natural dividing of people into the roles of charismatic leader or dutiful follower. The law of peace requires the opposite-a different kind of unity based on the airing of diverse views leading to thoughtful acceptance of the consensus arrived at thereby.

The third principle of inclusion assumes that society, like humanity, is one. It recognizes that in our age, for all its differences of culture, custom, and local identity in its fabric and texture, civilization is inevitably global in that all share a common community of concerns. This principle acknowledges that all problems (whether having to do with disease, poverty, education, commerce, economics, collective security, or any other human activity) have a global dimension. Humanity, therefore, must develop mechanisms and structures to address those concerns in a unified way.

The fourth principle of inclusion asserts that all religions are legitimate shareholders in a larger truth and that religions are the only source of real peace because they are the only institutions the main purpose of which is to address issues of the spirit (and its principal faculty: the mind). So long as individual religions and their cultures hold to the belief that they are the unique repositories of "truth,” humanity is doomed to feed upon itself.

Homer makes clear that the geographical journeys and quests of Odysseus, his encounters with wonders and marvels, were as nothing compared to the epic journey within his mind and sensibility, the one that made him able to leave the house of war and worthy to inhabit the house of peace. It is obvious to any objective observer that, generally speaking, the life of the world at present is governed by the language of war (of contest, exclusion, advantage, tactic, self-interest, objectification of one's "opponent"). The contemporary equivalent of Athena's directive to Odysseus to "command" himself is that we should command ourselves, developing the will to take off the blinders of factionalism and to see an infinitely bigger and brighter and safer world. Is a common conscience possible in the modern world? Not only is it possible, it is essential and well within the realm of human possibility. But it will require uncommon courage and uncommon thinking.

[Page 51]

Justice as Aberration: Reflections on the Historical Significance of the International Criminal Court

The emergence of the International Criminal Court (ICC) onto the world stage is one of the most significant developments in contemporary legal history. It signals the dawn of a long-awaited transition from a culture of impunity to a universal system of international criminal justice. For the first time, accountability for the most serious international crimes is moving from the periphery to the mainstream. The prosecution of powerful rulers for abominations has been transformed from a distant and utopian aspiration to an immediate and viable prospect. Justice, long an anomaly in humankind's legacy of total war and genocidal violence, is gradually becoming the habitual norm, while crimes against humanity, long tolerated as an inescapable feature of political life, are increasingly viewed as aberrations deserving of reproach and punishment.

Despite the vast distance traversed, the blueprint for international criminal justice set forth in the 1998 Rome Statute of the International Criminal Court is far from being realized. Although a broad spectrum of almost 90 States are parties to the Statute, China, India, Russia, the United States, and most of the Islamic States are not. Thus, for the time being, the ICC's jurisdiction does not extend to a considerable portion of humanity, and its claims to universality are seriously circumscribed. Furthermore, for the most part, the States that have ratified the Statute are not those with the most appalling human-rights records. The Statute does allow for Security Council referrals under Chapter VII of the UN Charter, which provides that

PAYAM AKHAVAN is a Visiting Fellow at the Yale University Center for International and Area Studies and a member of the New York Bar. He was the first Legal Adviser to the Prosecutor's Office of the International Criminal Tribunal for the former Yugoslavia at The Hague and a Special Adviser on international criminal justice to the United Nations and sovereigns in Cambodia, East Timor, Guatemala, Peru, and Rwanda. He has been a visiting professor at the University of Toronto Faculty of Law and a visiting lecturer and research fellow in the law schools of Yale University and Leiden University in the Netherlands. [Page 52]the Council may impose enforcement measures for maintaining international peace and security irrespective of the consent of a particular State to such action. However, U.S. opposition to the fledgling ICC makes the prospect of such nonconsensual jurisdiction remote at present.

Notwithstanding such limitations, the primary significance of the ICC lies perhaps not so much in what it will achieve in the future but, rather, in what it reflects about our dismal past. To the extent that law mirrors existing mores of social conduct, the ICC is first and foremost a monument to humankind's gradual renunciation of atrocities as an instrument of statecraft. In the abiding shadow of total war, and in the midst of a global hyper-technological economy, the inexorable dictates of interdependence have radically redefined traditional conceptions of power. Conquest and supremacy through the annihilation of alien peoples, long the leitmotif of history, is increasingly a deviation from normal conduct, albeit one that still haunts our conscience with disturbing frequency. A system of international criminal justice is finally within reach because crimes against humanity are now regarded as aberrations rather than as acceptable behavior.

Thus the long-term efficacy of the ICC must be considered in the broader context of a historical momentum toward justice and accountability that is likely to embrace all nations in due course. It is instructive to note that in 1937 the League of Nations had already adopted a Convention for the Creation of an International Criminal Court. But it never entered into force, reflecting the mindset of an immature and anarchical age of nations that had not yet grasped the relentless march of history toward an interdependent and indivisible global society. The moment was to come in 1998 in Rome, when a community of nations, disabused of the modern world's amoral illusion of progress and chastened by the horrors of machtpolitik, in concert with a vigorous global civil society that had considerably democratized the otherwise rarefied international law-making process, finally brought this essential institution from the realm of naive idealism to that of practical reality. In this respect, the successful adoption of the Rome Statute in 1998 was a reflection of the world community's evolution from a State-centered culture of impunity to a new human-centered culture of accountability.

The birth and future prospects of the ICC cannot be understood in isolation from the dramatic, though haphazard, emergence of an international criminal justice system in the post-Cold War era. In this new political space, atrocities that would have been disregarded in the past gave rise to differing accountability mechanisms, including ad hoc international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR); hybrid or "mixed" tribunals, such as the Special Court for Sierra Leone; and unprecedented proceedings before national courts, such as those against former Chilean leader Augusto Pinochet. The indictment of sitting heads of state, such as former Yugoslav President Slobodan Milosevic, became a defining moment for the rule of law in its most stark sense, embodying the proposition—captured in the Nuremberg Judgment's aphorism—that "[c] rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes [Page 53]

AFTERWORD

can the provisions of international law be enforced."1

Whereas formerly an entrenched culture of impunity had countenanced the likes of Pol Pot and Idi Amin, the unprecedented recourse to judicial proceedings in the post-Cold War era surfaced and mainstreamed accountability, profoundly and irreversibly altering the conventional wisdom about the boundaries of power and legitimacy in international affairs. The imposition of individual criminal responsibility for gross human-rights violations, even for seemingly untouchable leaders, was now a distinct possibility in a transformed political calculus. These contemporaneous and mutually reinforcing developments became a laboratory within which abstract post-Nuremberg conceptions of justice took shape and became reality and provided the context for the unusually rapid rise and establishment of the ICC.

But, while the promise for the future is cause for celebration and optimism, the temptation to reduce genuine empathy with the downtrodden to the sanitized confines of legal process should be resisted. Institutional justice cannot become an expedient substitute for the more laborious engagement and intimacy with the acute suffering that continues to afflict much of humanity. The International Criminal Court can complement but not replace an effective system of collective security, alleviation of abject poverty, elimination of ethnic and religious hate-mongering, respect for cultural diversity, and the host of other measures and spiritual values that are vital for preventing the contexts that give rise to genocidal violence. At this stage of our historical evolution, meaningful justice cannot be achieved without a more profound sense of community and belonging, a wider loyalty, founded on the inescapable oneness of humankind.

1. Judgment, 1 Oct. 1946, International Military Tribunal, Judgment and Sentences, 41 AM. J. INT'L. L. 172, 221 (1947).

OFFICIAL SITE OF THE ICC

<HTTP://WWW.ICC-CPI.INT/INDEX.PHP>

The ICC's official website, which is in its preliminary stages of development. The "Basic Documents" section contains the Rome Statute, the Rules of Procedure and Evidence, the Elements of Crimes, and the Official Records of the Assembly of the States Parties. The "At a Glance" section links to a helpful page (Questions and Answers) answering frequently asked questions about the ICC, a page outlining the ICC's administrative structure, and a page containing ICC-related documents (at present containing only the Rome Statute itself). The main page also links to a list of States Parties. Perhaps the most interesting aspect of the site is the Video Archive (which currently only has the inaugural ceremony). In the future the site promises to document the ICC's ongoing cases. [Page 54]

UNITED NATIONS ICC SITE

<HTTP://WWW.UN.ORG/LAW/ICC/> Another valuable source for official documents related to the ICC and documents related to the 1998 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Preparatory Commission documents, and relevant Security Council resolutions. It also contains a database of the signatories to and ratifiers of the Rome Statute.

COALITION FOR AN INTERNATIONAL CRIMINAL COURT

<HTTP://WWW.ICCNOW.ORG/> The web site of the CICC, a network of more than one thousand nongovernmental organizations advocating for a fair, effective, and independent ICC. The site is an invaluable resource for like-minded organizations. Of particular interest is its "Resources and Tools" section, which contains a tool kit for NGOs promoting the ICC and tips on informing the media, planning events, and conducting outreach to governments and others. The section on "Ratification and Implementation Toolkit" provides information on the legislation enacted or being considered by various countries in their ratification and implementation processes. Other resources include analysis pieces and links to other web sites. The publications page provides a link to the ICC Monitor, a quarterly including the latest ICC-related news, and to ICC Update, a more frequent publication with ICC news.

INTERNATIONAL CRIMINAL COURT: RESOURCES IN PRINT AND ELECTRONIC FORMAT

<HTTP://WWW.LIB.UCHICAGO.EDU/-LLOU/ICC.HTML> An extensive list of ICC-related web links, journal articles, books, and other resources. The site is housed at the University of Chicago Library.

HUMAN RIGHTS WATCH: ICC PAGE

<HTTP://WWW.HRW.ORG/CAMPAIGNS/ICC/> The web site of the one of the ICC's strongest supporters. What distinguish this site from other ICC-related sites are the informative Human Rights Watch documents that explain the nature of the ICC and advocate its strengthening. The section on "Understanding the ICC" contains a "Handbook for Implementing the Rome Statute," a very helpful "Summary of the Key Provisions of the ICC Statute," and numerous advocacy pieces.

AMNESTY INTERNATIONAL: ICC PAGE

<HTTP://WEB.AMNESTY.ORG/WEB/WEB.NSF/PAGES/ICCHOME> The web site of one of the founding members of the CICC.

USA FOR AN INTERNATIONAL CRIMINAL COURT

<HTTP://WWW.USAFORICC.ORG/> The web site of a U.S. nongovernmental organization.

BASS, GARY JONATHAN

Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton UP, 2000.

A superb account of the history and politics of war-crimes tribunals. Indispensable for understanding the historical background of the ICC. [Page 55]

AFTERWORD

CASSESE, ANTONIO, PAOLA GAETA, AND JOHN R. W. D. JONES, ED. The Rome Statute of the International Criminal Court. 3 vols. Oxford: Oxford UP, 2002.

A thematic commentary with chap- ters written by many key players who worked to establish the ICC, the book analyzes the Rome Statute and inter- national criminal law as it has devel- oped since the Nuremberg Trials. Volume 1 includes four chapters on the path to Rome and beyond, the structure of the ICC, jurisdiction, and general principles of international criminal law. Volume 2 includes chap- ters on the Statute and general inter- national law; international criminal proceedings; international cooperation. and judicial assistance; enforcement; application and import of the Rome Statute; and final analyses and sug- gestions. Volume 3 contains the text of the Rome Statute of the ICC, the Rules of Procedure and Evidence, and the Elements of Crimes.

FRYE, ALTON, ED. Toward an International Criminal Court? Three Options Presented as Presidential Speeches. New York: Council on Foreign Relations, 1999.

Useful for understanding the argu- ments for and against ratification of the ICC in the U.S. context. Con- tains one essay that advocates endors- ing the ICC, one that advocates opposing the ICC, and a third one that advocates improving the ICC. Appendix A provides a summary of U.S. objections to the Rome Statute. [Page 56]

A Lover's Song

So may the Sun and Moon be with us, and the Changeless One- may our walk together be until the end of darkness, and the end of light— may our words be like pearls, and our days be like moonbeams- may the rivers we live be waters of much laughing— in our time, may the world forget to go to war-

may our song be the world's song- may our embraces deepen and ripen, until at last, we are taken into the deepness of God forever-

Copyright ©2003 by Michael Fitzgerald.

-MICHAEL FITZGERALD

Michael Fitzgerald, who teaches writing and literature at Shenandoah University in Virginia, has published fourteen books of poetry, nonfiction, and children's literature. [Page 57]

CALL FOR PAPERS

A Special Issue on Travel ABSTRACT DEADLINE: December 2003 SUBMISSION DEADLINE: June 2004 For publication in late 2004

In our modern world, growing numbers of people assume that it is their right (and increasingly their practice) to travel as they wish, sometimes over vast distances, and for any number of personal reasons. Travel has unarguably brought the world closer together. Travel contributes to greater understandings of cultures, histories, and peoples and has helped to shape an emerging sense of world citizenship. The term travel, like the term tourism, suggests freedom of movement and the desirable mixture of cultures and peoples.

But it wasn't always so. In earlier ages most people had no personal right to move from place to place. For most, travel meant short, sanctioned, carefully circumscribed journeys. The privileged few might, of course, travel greater distances, and do so for more diverse purposes than could the great masses of people. However, travel in those earlier times often had overtly symbolic social, religious, or governmental content. Travel almost always was, in part, an expression and exercise of power and social control, part of the exercise of governance. Today, mobility is one of the defining characteristics of our age. Submissions (articles, reviews, photo-essays, creative writing, poems, and the like) to this issue might wish to take up some of the following questions:

• Sacred travel in a secular modern world: How do the Bahá’í writings or those of other religious traditions speak of travel and mobility? How is pioneering or religious missionary work related to sacred writings on travel?
• Tourism and Ecology and Culture: Can one speak today of unspoiled beauty and authentic cultures if one only encounters it/them through travel and tourism? How has travel blurred cultural distinctions? What are the ecological implications of travel? How has travel contributed to either economic equality or increased poverty? What can travel writing teach us about new cultures and peoples? Do National Parks preserve nature or accommodate tourists?
• Meta, virtual, and imaginative travel: How do new technologies make it possible to travel without physically going anywhere? How has literature and, more recently, film already made such "travels" possible?
• Travel and suffering: How is travel linked to the exercise of power in the case of exiles, refugees, or those who have been banished? How might Bahá’u’lláh’s banishment and exile be related to conceptions of travel and place in the Bahá’í writings? How does immigration change ideas of nationality and identity? How has travel contributed to the recent explosion in exilic and diasporic novels and film? How does war change the way the terms travel and home are understood?

For a copy of the World Order style sheet for preparing a manuscript (and other tips), send an e-mail to <worldorder@usbnc.org>, or write the address below.

Submissions to the journal will be subject to external blind peer review if they fall outside the expertise of the editorial board or upon request by the author.

Manuscripts (in Word or WordPerfect) should be sent to World Order, Dr. Betty J. Fisher, Managing Editor, 4516 Randolph Road, Apt. 99, Charlotte, NC, 28211-2933, USA or <worldorder@usbnc.org>.

World Order has been published quarterly since 1966 by the National Spiritual Assembly of the Bahá’ís of the United States. [Page 58]

Spiritual Place and Space: Looking at Our Built and Physical Environment

Geoffry W. Marks reflects on the completion of the Bahá’í terraces, gardens, and buildings on Mt. Carmel in Haifa, Israel

Tom Kubala analyzes the impact of unity on architecture and planning

Robert H. Stockman reviews The Life and Death of Planet Earth

Monireh Kazemzadeh ponders Rivers and Tides: Andy Goldsworthy Working with Time

and...

Julio Savi reflects on Alessandro Bausani, an Italian scholar of Islam

Jim Stokes on Shakespeare as a touchstone in modern London Theater

Special issues on Global Cinema, Travel, Law from a Bahá’í perspective, and other topics of broad social concern