THE DISCOURSE OF TERRORISM continues to dominate international politics. Long after the completion of the first phase of the US intervention in Afghanistan, the 'war against terror' rages on, ubiquitous and indeterminate, continuing its transformation of the complex and composite themes of global-ization.
How does one formulate a legitimate response to terrorism? Long gone is the era when the legitimacy of any sanction could be derived from natural or im-manent principles of proportionality and just cause. More importantly, and despite fears to the contrary, the days are numbered for a system of global jus-tice founded upon the USA's 'might makes right' model of the war against ter-ror, a model at odds with Europe, Asian allies, and the world at large. This is obviously not because the USA is likely to face a serious geopolitical rival in the near future. It is, rather, because the nature of this 'war' against terrorism is global both in nature and in aim. Its political maneuvering takes place on a global scale. The 'enemy' – Al-Qaeda in particular, and the ephemeral 'interna-tional terrorism' in general – opens global consciousness, identifying group-ings that exceed national borders. The international political pressure to sign on to the 'war on terrorism' has been immense. The USA has not managed to unite the world in battle against a common enemy. Indeed, it has been more successful at reconstituting the otherwise dated Huntingtonian idea of a clash of civilizations as an apology for the rote categories it insists upon applying. Oddly enough, however, this war has provided the beginnings of a kind of global polity. To the extent that this new 'world war' actually assembles de-bate and dialogue – be it in elite circles or at the grass-roots level – around a single contentious issue, it participates in the evolution of global consciousness.
In the future, the legitimacy of supranational intervention on a global scale will have to be sought on the basis of global norms, rights, and mutual recog-nition: the basic elements of a global civil society. The UN Security Council, having shed its Cold War ideological deadlock, has become a viable component in the process of building a global consensus. Its role in sanctioning humani-tarian intervention, while far from fully developed, is growing in practicabil-ity. If we are sincere in our belief that democracy and human rights must lie at the core of international society, then the developing global civil society must repose upon nothing less. But the key to such a consensus-based international civil arrangement must be a legal arrangement that institutionalizes and ar-ticulates international norms, while at the same time setting the scene for their constant critical re-evaluation. For this reason, the UN Security Council vote in July in favor of a compromise on the nature and reach of the International Criminal Court (ICC) is a watershed.
The ICC is an immensely innovative institution aimed at uniting the global community and advancing the aspiration toward something closer to univer-sal justice. It is the fruit of a development nearly as old as the United Nations itself. In Resolution 260 of 9 December 1948, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, recognizing genocide as a crime under international law and inviting the
International Law Commission to study the possibility of establishing an
international judicial organ for the trial of persons charged with genocide. Fol-lowing the commission's conclusion that such a court was both desirable and possible, the General Assembly established a committee to prepare proposals relating to the establishment of such a court. The draft statutes prepared by the committee mired in technical debates in the early 1950s, and the proposal lay dormant for over 40 years. Then, in 1993, after the eruption of the conflict in former Yugoslavia, the question of genocide, war crimes, and crimes against humanity came again to the forefront of public attention. The UN
Security Council established the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY). Riding on the impetus of the ICTY, the Interna-tional Law Commission again took up the work of finalizing the draft statutes for the ICC. In July 1998, the UN convened in Rome a diplomatic conference on the establishment of an international criminal court, based on the vision, as Kofi Annan put it, that 'in the prospect of an international criminal court lies the promise of universal justice'. The proposed International Criminal Court will be a permanent court that will investigate and bring to justice individuals, not countries, who commit the most serious crimes of concern to the interna-tional community, such as genocide, war crimes, and crimes against humanity – including widespread murder of civilians, torture, and mass rape.
At the time of writing, the Rome Statute, which entered into force on 1 July 2002, has 139 signatories and 76 ratifications, Australia and Honduras being the most recent to ratify it (see the UN's online, country-by-country ratification status report at http://www.iccnow.org/html/country.html). The ICC is conceived as a global judicial institution, with an international jurisdiction complementing national legal systems. It is the first of its kind, and has so far brought un-precedented unity to the global community in terms of norms, rights, and jus-tice. It opens a new chapter in the evolution in principles of
human rights and the sovereign state.