Rome Statute: The International Criminal Court

We are a group of US students striving for a deeper understanding of the International Criminal Court, the U.S., and The Hague Tradition



Where we had thought to travel outward, we will come to the center of our own existence. And where we had thought to be alone, we will be with all of the world -Joseph Campbell.



Pictured from left to right are: 1) Dustin Sigsbee (seated); 2) Megan Blue; 3) Josh Brown; 4) Jacob Comfort; 5) Erica Maylee; and 6) Kiel Martyn (seated)

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The Sentiment of Humanity

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1) The Relationship of Peace to Justice

The terms “Justice” and “Peace” each have multiple meanings and so it is necessary to clarify the different senses of these terms in order to more clearly understand the extent to which Justice and Peace are connected.  We need not enumerate every sense but just note that there are different notions of Justice.  Such as:

1) Distributive (pertaining to the ‘fair’ distribution of resources, benefits and burdens in a society)

2) Procedural (pertaining to the ‘fair’ application of laws and legal norms – a ‘justice system’)

3) Retributive (pertaining to the ‘fair’ redress of harms done to a victim – usually in the form of punishment (fines, jail time, etc.))

4) Restorative (pertaining to returning a party to her original state (status quo ante) before the harm occurred.

5) Transitional (pertaining to the development of a peaceful and stable society post conflict – which may involve ‘justice mechanisms’ like prosecutions, truth commissions, etc.)

There is actually one additional sense of justice that needs mention.  Assuming a very specific and important non-Cartesian theory of the soul, Plato defines Justice as a kind of harmony amongst the three different parts of the human soul: reason, desire and spirit (regarding spirit, think ‘passion’ or ‘energy’ ). The idea here is that passion should serve one’s reason, as should desire. So on this model desire is a willing tool of reason, and spirit is the zeal that pushes desire to serve reason. We can formulate this sixth notion of Justice more succinctly as:

6) Harmony amongst the three different parts of the human soul so that all work with each other rather than against each other.

As we will see, this 6th notion of Justice merges with that other important concept, “Peace”.

Like Justice, there are different notions of Peace. During  both Jan Techau’s and Steven van Hoogstraten’s sessions from the Bertha von Suttner Master Class that both focused on “Peace”, it was said that Peace is not just the absence of war – but the presence of respect for certain fundamental rights – such as the right to property.  On van Hoogstraten’s handout, this is referred to as “positive peace” – the notion that peace is the presence of something rather than the mere absence of war or “negative peace”.  Jan Techau also adopted a notion of “positive” peace with the notion of “peace as process” – i.e., of the fair balancing of interests.  Peace can be understood as the presence of something: respect for fundamental human rights and/or a process of ‘balancing of interests’, etc.  Even “positive peace” has different notions.

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Whilst at the symposium sponsored by Peace Museum Vienna, there was a discussion about how Peace was something ‘inner’ and attitudinal.   This is a gloss, an elaboration on “positive peace”.  For here the notion is that peace is the presence of something inner.  What is this ‘inner thing’?  What is present?  Respect for human rights? a balancing of interests?  At the very least this attitude involves a stance towards others.   The Other, as Martin Buber put it, is not an “It”, but a “Thou”.  And so the proper attitudinal stance towards The Other is not an “I/It” relationship (this objectifies The Other as a mere thing), but an I/Thou relationship (which acknowledges the Other as valuable center of consciousness and will.  I think that this I/Thou attitude – which is an interpersonal attitude – can grow into a personal respect for the formal institutional recognition of/respect for human rights.  In other words, this inner interpersonal attitude can extend into a respect for rule of law and also  to a respect for inner rules or ‘Categorical Imperatives’ which actually ground the formal institutional norms that enshrine human dignity and ‘peace as process’.

So to sum up, different notions of Peace include:

1) The Absence of War (“negative peace”);

2) The formal, institutional respect for & recognition of fundamental human rights and/or a fair process of interest balancing (“positive peace”);

3) The individual and ‘private’ presence of some ‘inner attitude’ like an I/Thou attitude

With these clarifications of the 6 different notions of Justice and 3 different notions of Peace, we are more prepared to address the extent to which Peace and Justice are related.

On Steven van Hoogstraten’s handout,  he says:

Peace and Justice are two different and distinguishable notions, and not 2 sides of the same coin. But they are intertwined.  There can be peace but no justice (a war has ended, society has not been restored, this is called the negative peace)….

So here he is referring to “negative peace” and hence to the first notion of Peace.  But what about Justice?  I do think there are several notions of Justice that can be found in the handout.  When he says “There can be peace but no justice” he seems to be referring to Justice in the second sense (“fair application of legal procedures” or “fair operation of legal machinery”).  I take him to be saying that you can have “negative peace” without a functioning “justice system”.   When he says “society has not been restored” I take him to be referring to the absence of a “justice system” post conflict.

He continues:

 There can be peace but no justice ( a war has ended, society has not been restored, this is called the negative peace)  but there can basically be no justice without peace. How can one have justice within the society if that society is at war. That is the equation. Transitional justice is the answer for peace without justice.

There is a lot in this text but I just want to focus on the different notions of Justice within this passage.  First, when he says “there can be no justice without peace”, I take the claim to mean that absence of conflict is necessary for a ‘functioning justice system’.  So here I think the notion of Justice is the second one.  But he also mentions “Transitional justice”  -  the fifth notion of Justice. And in fact, there is even a reference to Retributive Justice which is really what he means by “international justice”:

The experience of the International Criminal Court shows that the requirements of international justice (to prosecute criminals) can be at odds with the furtherance of Peace (when the alleged criminals happen to  peacemakers)  Such conflicts can only be addressed on a case by case basis, no easy answers there.

Here the notion of ‘international justice’ pertains to prosecution and hence punishment.  That is, notion #3 above, albeit administered via an international legal machinery.

So van Hoogstraten refers to at least three definitions of justice (n.b. this is me wresting with the text): 1) Procedural Justice (fair ‘justice machinery’); 2) Transitional Justice; and 3) Retributive Justice.  When he says

There can be peace but no justice

 he is referring to negative peace (notion #1) and procedural justice (notion #2).  But there are, as I will show, notions of peace and justice which yield the seemingly contradictory claim “There cannot be peace without justice”. 

To show this, I want to focus on the 6th notion of Justice (as harmony).  And say actually, this notion CANNOT exist without the third definition of Peace (“inner I/Thou attitude”).  I do not think van Hoogstraten refers to this third notion of ‘private peace’ on his handout.  But it is an important omission.  For this notion allows us to see a different logical relationship between peace and justice  - i.e., that they are inter-entailing and hence you cannot have Peace without Justice.  As long as both  Peace and Justice are construed as something ‘inner’, we can see them as inter-entailing: you cannot have the inner attitude of I/Thou without a kind of “psychic ordering” within – an order in which one’s ‘inner resources’ are used to support and sustain noble sentiments – at the very least.  Indeed, this kind of psyching ordering (i.e., when my inner resources are harnessed to build and sustain noble sentiments) is Justice in the 6th sense.  But Justice in this sense implies the I/Thou attitude.   The psychic ordering implies a deep respect for the Other – and in that is Peace through Justice.

2) The Relationship of Human Rights to Peace

We need to clarify which sense of Peace to which we are referring if we are to articulate the relationship between Human Rights and Peace.  Now, we have already noted that second notion of Peace is one which identifies “positive peace” with respect for fundamental rights.  So Steven van Hoogstraten says again (on the handout):

 The respect for Human Rights is part of what we may call a state of positive peace.

In this sense, human rights are actually constitutive of “positive peace”.   But recalling Charles Malik’s Talk on Human Rights,  let us remember that this state of “positive peace” cannot be realized without fight and struggle.  For:

 [S]ociety and the state under our modern conditions can take perfect care of  themselves: have advocates and sponsors on every side: their rights are in good hands. It is man, the real, existing, anxious, laughing, free and dying man, who is in danger of becoming extinct. It is man who is the unprotected orphan, the neglected ward, the forgotten treasure. And therefore it is good that the Declaration has not  lost sight of its main objective: to proclaim man’s irreducible humanity, to the end that he may yet recover his creative sense of dignity and reestablish his faith in himself.

This idea of PROCLAIMING and RECOVERING man’s ‘creative sense of dignity’ is  of course a fight against the state and, specifically, the totalitarian state:

The problem of human rights arose in recent years precisely because society and the state trespassed upon man, to the extent, in totalitarian states, of choking him altogether.

 Now I would just like to propose that we consider that this fight “against the totalitarian state” implies that existence of another type of struggle.  Those familiar with Islamic theology might refer to these two struggles as the “little Jihad” and the “big Jihad”.   The big Jihad is actually this second struggle and fight with oneself.  Here is an explanation :

What is the greater Jihad?” [The Prophet] said, “To fight against one’s inner passions, against the evil tendencies within oneself.” So, human beings should always be in an inner Jihad to better themselves, to overcome the iinfirmities and imperfections of our inner soul.

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Respect for Human Rights – Positive Peace – includes not only an external fight constituting the Great Effort of Ripening the Machinery of State so as to recover “man’s creative sense of dignity” (i.e.., ‘little Jihad),  but is also includes an INTERNAL fight against our “infirmities and imperfections” like Shame and Resistance (Big Jihad).  We cannot fall prey to these things if we are going to truly engage in the little Jihad.  Frankl alludes to this necessity of inner tension in man’s “creative act” of constructing meaning from a sea of infinite potentialities.   On the handout that we received when attending the lecture at the Frankl Zentrum in Vienna, we find:

Man’s search for meaning (read: recovering his creative sense of dignity) may arouse inner tension rather than inner equilibrium; Existential dynamics: in a polar field of tension where *one pole is represented by a meaning that is to be fulfilled *and the other pole by the mean who has to fulfill it.

 Frankl only says that ‘inner tension’ MAY* be present in the creation, but I say (in agreement with Pressfield) that it MUST be.  So amending Frankl:

Man’s search for meaning (read: recovering his creative sense of dignity) MUST arouse inner tension rather than inner equilibrium.

What is the essential ‘inner tension’?  Resistance and obstacles are inevitable  - but *they* are not the “inevitable tension”.  No.  The inevitable tension subsists in an intentional attitudinal act.  Namely -  to deal with obstacles in a crafted, thoughtful and graceful way that preserves and sustains THE SPONTANEOUS IMPULSE OF THE NOBLE HEART – i.e., the creative power behind one’s ‘creative sense of dignity’ and ‘authentic meaning’.  Put more bluntly, the necessary inner tension is an internal fight in which one fights to use one’s inner resources to respond to external obstacles, resistance in such a way so that one’s attitude sustains progress in the work of ‘creative meaning’ -  not regress, stasis or, perish the thought, destruction.  Trying again, the necessary inner tension involves the marshaling and summoning of one’s energies – in the face of obstacles and disappointments – to sustain an inner ordering in which all inner resources are used to fortify the dominance of the noble sentiments over everything else within.  The necessary inner tension *is* the big jihad.

3) The Life and Legacy of Bertha von Suttner

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Bertha von Suttner’s life and legacy is an actual instance of this ‘indispensable tension’ and the ‘big Jihad’ at work. As stated on one of the handouts, one of Bertha’s mottos was:

Doubts arose in me, but I chased those doubts away.

Here, she beautifully describes the tension.  Naturally and essentially, doubts appear in the private chambers of Bertha’s inner life.  This is the inevitable, inescapable result of the pursuit for ‘authentic meaning’ and ‘creative dignity’.  But she musters up a counterforce – a thought or thoughts aimed at sweeping away these ‘cobwebs’ of her inner life.  She succeeds in sustaining an inner ordering in which all inner resources are used to fortify the dominance of the noble sentiments over everything else within. There is an inner tension at work within her – she is fighting the big Jihad. 

 I would like to broaden the scope of things in our ‘inner world’ that need to ‘chased away’.  Doubt is one of the ‘cobwebs’, but another (to connect with the discussion above) is this tendency to adopt the I/It attitude of the Other.  We need to chase the I/It attitude away as it is one of our infirmities and imperfections. Why?  The I/It attitude is a breeding ground and petri dish for other toxic emotions (anger, resentment) and those energies do sap the ‘motive power’ necessary for the creation of meaning.  When we were in Vienna, I found myself in the sess-pool of the I/It relationship.  True, I did not sleep for a week and had a routine of ‘bad hair days’.  But the proper attitude for that experience was one of gratitude and awe.  Am I really such a petty being as to focus on my suboptimal lodging situation when, in fact, the my presence there, and with students – is such a sublime gift?  Have I any right to complain about such trifles given the suffering in the world?  No I do not. I do believe that the ever presence of the I/It attitude which was perhaps the result of the self-fulfilling prophecy “Vienna is going to be rough” was the deeper cause – the disease – that I must continually try to eradicate. 

4) The Role of Education in Peace

Given that there are (at least) 3 different notions of  “peace”, we must clarify which sense of “peace” is the focal point of this discussion.  To be sure, simple ‘descriptive’ education about the ‘formal institutional’ aspect of human rights (“What are Human Rights”; “What is the Universal Declaration of Human Rights”?)  is necessary.  Think: Human Rights 101.  But this is a rather empty notion of education.  The second and third notions of “peace” involve respect.  And the typical “Human Rights 101” class may not endow this attitude in the student.

The third notion of peace – the most important (in my view)  -is grounded in interpersonal respect -  the I/Thou relationship.  You are not an “It” but a “Thou” a being of dignity that I must recognize.  As stated above, I believe that this interpersonal relationship can grow intoevolve into - a respect for the Norms (legal and moral) that formally enshrine that respect.  So the first challenge is how to engender the I/Thou relationship.

The title of my talk at the commemorative Bertha von Suttner talk in the Great Hall of Justice was “Bertha von Suttner and the Mature Moral Imagination: Following the Red Thread”.   This notion of “moral imagination” is important.  The I/Thou relationship is, I believe, the crown of a mature moral imagination.  And the study of ‘positive history’ and especially the individuals who comprise the cast of characters of this positive history is a good way to mature the moral imagination.  An education without such stories is vapid and the potentials that we all have for dignity and compassion remain dormant.   And I would like to suggest that these “positive personalities” working towards authentic values can indeed build the I/Thou relationship.  Let me use Adam Smith’s ‘Theory of Moral Sentiments’ to assist me:

When we see one man assisted, protected, relieved by another, our sympathy with the joy of the person who receives the benefit serves only to animate our fellow-feeling with his gratitude towards him who bestows it. When we look upon the person who is the cause of his pleasure with the eyes with which we imagine he must look upon him, his benefactor seems to stand before us in the most engaging and amiable light.  (Adam Smith - Theory of Moral Sentiments - 1759)

The claim here is that bearing witness to acts of compassion affects us by stimulating empathy, joy and gratitude. This notion of ‘fellow feeling’ is empathy and empathy is needed for the I/Thou attitude.  

 How does the “Red Thread” of positive history fit in? The study of the ‘positive history’ of the Peace Through Law movement is to bear witness to human beings who devote their lives to assisting, protecting and relieving not a person – but the so called ‘normative framework’.  It is to bear witness to human beings engaged in the Great Work of Ripening the Machinery of State. Is it a futile effort?  Not if the purpose of life is to create meaning.  Objective achieved. 

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To say that the purpose of life is to create meaning is to say that the purpose of life is to have one’s actions and decisions express and manifest a value that one holds most dear. For Bertha and her friends, that value was the full richness and beauty of human life  - a value that is completely inconsistent with settling disputes via armed force.

Bertha’s life was one steeped in value, as was Stead’s as was Carnegie’s.  A happy incidental effect of these “lived values” is an actual apparatus, a machinery: “International Law”.  But this apparatus is a byproduct of these lived values and meaningful lives. Further, this byproduct cannot be properly esteemed without the presence of inner attitudes that are kindled by learning about these meaningful lives.  Former U.S. Secretary of State Elihu Root, who, as President of the Carnegie Endowment for International Peace provided the funds that enabled the Hague Academy to grow from idea to a functioning summer school on international law referred to the “memory and example” of those who fight for justice and ordered liberty are mankind’s “most precious possessions”.  And why?  I submit that the memory and example of these individuals have great educational and developmental power.  Just as the Good Samaritan to which Adam Smith refers has the power to awaken the noble sentiments of empathy, gratitude and esteem, so too do the ‘memory and example’ of the individuals who lives represent the lived values of international peace and justice.  I think that bearing witness to these meaningful lives can, if the conditions are right, help to engender the I/Thou relationship and hence the beginning of that “positive peace”  that includes both respect for persons and respect for normative systems that express that respect.  Pedagogically speaking, encountering the meaningful lives arouses certain sentiments that  can helped to assist, protect and relieve the normative framework.

Let the creation of meaning be our focus.  Granted, if we focus on the efficacy of the “byproduct” of the quest for authentic meaning  - i.e., the normative framework itself - we can invite skepticism and ‘realism’ (in the sense of realpolitik as in “International Law is no Law”).  But this need not be our focus.  If we ask: Did Bertha have a meaningful life? Did William Stead?  Did Andrew Carnegie?  Undoubtedly Yes. Objective achieved.  That is the real contribution to humanity – even moreso than the apparatus, the normative framework.  And this is why Elihu Root notes that the “memory and example” of these human beings is a “most precious possession”.   He even says that the normative framework is actually not the important thing.  Rather, it is the character of humanity - the hearts and minds, desires and impulses of living human beings not ‘instruments of ratification’ - in which peace and justice live.

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5) The Most Important Thing that this Journey has Taught Me

To begin:

 - How is the wasteland going to be cured?  By the spontaneous act of a noble heart whose impulse is that not of ego, but of  love. And love in the sense not of sexual love, but of compassion.

This is a gift from Joseph Campbell who has been adorning my inner world since this summer 2014 journey.  Sustaining the Spontaneous Impulse Towards Compassion requires work and care – a tending to the Garden.   During one of our classes, I referred to one of the Arthurian legends, discussed by Campbell – that of Percival.  At one point in his journey his impulse is to ask a compassionate question of a king (‘my liege, what ails you?’) but because the norms of Knighthood forbid the asking of questions,  Percival chases away his Spontaneous Impulse Towards Compassion and remains silent.  To do this is to opt for the wasteland, says Campbell.  It is the inauthentic and the mechanical.  Follow the Spontaneous Impulse Towards Compassion. 

But I would also add that we cannot just follow the Spontaneous Impulse Towards Compassion.  This goes back to Bertha and the big Jihad.  We ALSO need to ‘chase away’ certain ‘spontaneous impulses’ and innate imperfections and infirmities namely, those that are inconsistent with compassion and the I/Thou relationship:  anger, resentment, ego.  I think the 7 Rules of Harmony are also good tools as well.  Certain of those rules put the onus on the individual to do something constructive towards peace each day and to always speak out and name, publicly, acts of injustice.  imageThe Rules of Harmony call on us to fight against some of our imperfections: the tendency to remain silent when we perceive a wrong or a slight to someone; the tendency to be passive rather than active.

I do believe that engaging in this work not only grows the respect for the I/Thou relationship, but also grows something even more fundamental self-respect.   This is captured by Marcus Aurelius when he says:

Nothing is more wretched than a man who traverses everything in a round, and pries into the things beneath the earth, as the poet says, and seeks by conjecture what is in the minds of his neighbours, without perceiving that it is sufficient to attend to the daemon within him, and to reverence it sincerely. And reverence of the daemon consists in keeping it pure from passion and thoughtlessness, and dissatisfaction with what comes from gods and men.

 In other words.  To do the work is to work on yourself.  And to do that work is:

To reverence sincerely. 

To keep oneself pure from passion and thoughtlessness and dissatisfaction …

To do the work is into engage in the big Jihad.

I have learned not only that it is so utterly important to follow certain spontaneous impulses and to chase away others, but also that the Peace Palace and the stories to which it is connected is a sort of ‘superfood’ for this kind of inner work.  Because the Peace Palace invites reverence and helps one to be free from thoughtlessness and dissatisfaction, it is an arsenal of that enables one to build and fortify the noble heart - or as Elihu Root called it, “the Sentiment of Humanity” which exists in all of us as potential but which needs lived stories of meaning and value to become fully actualized. 

But it is not just a dynamic of ‘building’ and growing that is relevant here, but also a dynamic of ‘cleaning’ and ‘chasing away’ and cutting away or pruning thoughtlessness and dissatisfaction from one’s inner world.  Perhaps these two dynamics: growing the noble heart and chasing away thoughtlessness are not so different.  Perhaps they are functions of each other: the noble heart is the motive power that provides the impulse to chase away, and the action that flows from impulse to chase away builds the noble heart.  Perhaps this is another strain of ‘essential inner tension’ that we must embrace if our lives are to become things of value.

olson2rs:

1) The Relationship of Peace to Justice

“When justice is done, truth is served and peace is achieved.”- Rav Muna, The Jerusalem Talmud, circa 350 CE

Both justice and peace are terms that need to be clearly articulated, for fear that they become honorific terms touching everything and…

taylorackermanposts:

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1) The Relationship of Peace to Justice

“Injustice creates conflict. It is a threat to peace, and if we do not create justice, peace may not be sustainable. We need justice for sustainable peace.”

(Peace to Justice: Impressions of the First Conference by The Hague Academic Coalition,…

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