Sovereignty is the exclusive right to exercise supreme political authority over a defined territory (land, airspace and certain maritime areas such as the territorial sea) and the people within that territory. No other State can have formal political authority within that State. Therefore, sovereignty is closely associated with the concept of political independence.
In other words, sovereignty is not — and has never been — an unlimited power to do all that is not expressly forbidden by international law. It can only be defined as the very criterion of States, by virtue of which such an entity “possesses the totality of international rights and duties recognized by international law“ as long as it has not limited them in particular terms by concluding a treaty.
This, indeed, opens new horizons and could lead to the conclusion that armed reactions to a State crime are permitted under international law. The Kosovo case remains an isolated precedent (and the East Timor or Chechenya dramas contradict it in a rather obvious way). However, it shows that the international community can at least tolerate an armed reaction against gross violations of human rights. The real problem now is to find a median solution between the morally untenable “Munich principle” and the legally embarrassing “Zorro principle”, as practised by NATO in Kosovo.
In cases of human rights violations, sovereignty is never a defense, in cases of gross violations of human rights, it has no role to play; it does not impede the Security Council from concluding that such violations create a threat to the peace and to draw the appropriate consequences in accordance with Chapter VII of the Charter; and it cannot even protect Heads of States from international prosecution.
Under the United Nations Charter, humanitarian intervention – multilateral intervention to save the citizens of a state – is illegal, a violation of Article 2(4) of the Charter prohibiting the use of force, unless this use of force has been authorised by the Security Council. However, political differences within the Security Council often result in the use of a veto, and stultify the passing of resolutions.
A great deal of scholarship and diplomacy has been devoted to the question of formulating a set of principles that would allow humanitarian intervention while at the same time preventing the abuse of that concept for self-interested purposes by powerful states. The concept of `Responsibility to Protect’ has been presented as an alternative that is based on a reconceptualisation of sovereignty.
The basic argument is that sovereignty, rather than being seen in traditional terms as a “right” should be seen as a “responsibility” – a responsibility of the sovereign to protect the well-being of its people. If the sovereign fails to do so, then responsibility to protect devolves to the international community. Precise outlines of the concept and the legal implications that follow from it have yet to be worked out. For instance, the issue of who decides whether a state has failed to meet its responsibilities is still open to abuse. Similar concerns have been raised about the operation of the International Criminal Court. Taken together, these developments simultaneously provide an extra layer of protection for the individual but also make up part of something scholars are treating with suspicion
International Community infiltration of state sovereignty to end impunity for serious crimes
The international community increasingly views impunity for large-scale atrocities as an impediment to post conflict peace building and stability. A stark example is the “absolute and free pardon and reprieve” granted to the insurgent RUF under the 1999 Lomé Agreement in Sierra Leone, concluded by the democratically elected government under international pressure. In a ruthless campaign aimed at profiting from Sierra Leone’s vast gold and diamond reserves, the RUF attempted to win the “allegiance” of people through the exhaustive employment of terror. RUF tactics included the abduction and forced recruitment of children and the use of narcotics to turn them into effective killers, often against their own family members. Widespread killing, rape, and torture were common, and those suspected of supporting the government—as well as their children and infants—had limbs amputated in a form of “rule by terror.”
As part of an internationally sponsored “solution” to the horrific war of atrocities plaguing Sierra Leone, the RUF leader, Foday Sankoh, was appointed vice president and chairman of the Commission for Strategic Mineral Resources and Development, in a power-sharing agreement with the democratically elected government of President Ahmad Tejan Kabbah. Thus, Sankoh was allowed to maintain control over the natural resources that had financed his war of terror against the civilian population since 1991. Predictably, Sankoh was not a reliable partner. He continued his ruthless quest for absolute power and supremacy, as if the Lomé Peace Agreement had changed nothing. The atrocities continued unabated, as did the pillage of the diamonds and gold.
The RUF also took hostage several hundred peacekeepers from the UN Assistance Mission in Sierra Leone. Sankoh attempted to escape from the capital city of Freetown but was eventually arrested by government forces and put to prosecution an intervention instigated by the international community. Thereafter, the government asked the Security Council to establish a special court for Sierra Leone “in order to bring and maintain peace and security in Sierra Leone and the West African subregion.” The Security Council endorsed this request on the understanding that “the amnesty provisions of the Lomé Agreement shall not apply to international crimes.” In retrospect, the Sankoh affair offers additional evidence that impunity is not an effective instrument for peace and stability.
The mainstreaming of criminal justice in international relations has created an incentive in some instances for “preemptive” national proceedings, strengthening moderate political forces committed to reconciliation. For example, despite considerable resistance, President Abdurrahman Wahid of Indonesia has shown an unprecedented willingness to investigate the atrocities committed by military and paramilitary forces in East Timor before and after the population voted in favor of independence on August 30, 1999. The UN Commission on Human Rights established an International Commission of Inquiry on East Timor, which found “patterns of gross violations of human rights and breaches of humanitarian law” and recommended the establishment of an “international human rights tribunal . . . . to try and sentence those accused.” In response to these demands, President Wahid indicated his preference for trials “to take place at home.” UN Secretary-General Kofi Annan supported Wahid and emphasized that an international tribunal would not be established if the legal proceedings in Indonesia were “fair and transparent.”
In January 2000, an Indonesian commission of inquiry advised that Attorney General Marzuki Darusman should investigate six generals, including General Wiranto, who had served as chief of staff of the armed forces and was currently coordinating minister of policy and security in the cabinet. The Hasibuan commission found “‘convincing evidence’ that the six men were jointly responsible for murders and arson in East Timor after the referendum” and that “Wiranto is guilty of negligence because as chief of staff he did not take timely action to curb the violence in East Timor.” President Wahid subsequently dismissed General Wiranto, although the Indonesian Parliament later voted a general bill of amnesty.
Observers point out that the Indonesian armed forces did not attack the findings of the commission because it had been established “as a fortress to preempt a plan to set up an international tribunal on the mayhem in East Timor.” According to Air Vice Marshall Graito Usodo, “The last thing we want is for outsiders to interfere in our internal matters.” Despite fears of a military coup, Wahid prevailed in a contest of strength with General Wiranto and, with the support of the military, ordered Wiranto’s resignation pending completion of a formal investigation by the attorney general.
In September 2000, the attorney general indicted nineteen officials for crimes in East Timor, including three lower level generals and a former provincial governor. Although Wiranto was not included among the accused, Indonesian prosecutors indicated that other suspects were not ruled out and said publicly that they were “planning to take an incremental approach, using information gleaned from lower-level officials to assemble cases against the senior ones.” Calling the indictments “an encouraging and very positive first step,” the special representative of the UN Secretary-General in East Timor, Sergio Vieira de Mello, suggested that “we shouldn’t be disappointed if the glass is only half full now.”
President Wahid embraced accountability not just to appease the international community, but also to check the power of the military, strengthen democracy, and promote national reconciliation. Changes in the military command, including Wahid’s order for the resignation of General Wiranto, were partially linked with international pressures but clearly served his democratic and reformist agenda. One commentator observed that, from the time of his election in October 1999, Wahid had “set about loosening the Indonesian military’s well-fortified power base, brick by cautious brick,” including through prosecutions for abuses.
Aware that military abuses have weakened support for Jakarta’s rule in outlying provinces, he has prosecuted human rights abuses to moderate the centrifugal forces tearing apart the heterogeneous archipelago, particularly in the province of Aceh in northwestern Sumatra. On May 17, 2000, an Indonesian court convicted twenty-four members of the armed forces and one civilian for the murder of students in the Free Aceh Movement. These prosecutions were linked with the first cease-fire and peace negotiations with the separatist insurgents in a twenty-five-year-old conflict that has claimed thousands of lives. Indeed, such is the importance of accountability to reconciliation in the newly democratic Indonesia that President Wahid has even initiated a judicial inquiry into the killing of some five hundred thousand “communists” in the 1965–1966 coup that brought President Suharto to power. (The political ambition of Suharto’s children may also explain this measure.)
Despite political limitations, Wahid’s efforts suggest that international demands for criminal justice can inspire action by national courts, and that such pressures can be used to weaken the grip of militarist elements with a view to strengthening democratic forces and promoting national reconciliation
in concert with other policy measures, resort to international criminal tribunals can play a significant role in discrediting and containing destabilizing political forces. Stigmatizing delinquent leaders through indictment, as well as apprehension and prosecution, undermines their influence.
Even if wartime leaders still enjoy popular support among an indoctrinated public at home, exclusion from the international sphere can significantly impede their long-term exercise of power. Failure to deliver on promises of economic growth and prosperity, together with the humiliation of pariah status in an interdependent world community, eventually exacts a cost on such leaders’ influence and authority. Moreover, political climates and fortunes change, and the seemingly invincible leaders of today often become the fugitives of tomorrow. Whether their downfall comes through political overthrow or military defeat, the vigilance of international criminal justice will ensure that their crimes do not fall into oblivion, undermining the prospect of an easy escape or future political rehabilitation. A post conflict culture of justice also makes moral credibility a valuable political asset for victim groups, rendering vengeance less tempting and more costly.
The recent arrest of leaders indicted by the ICTY and the ICTR provides at least a preliminary basis for appraising the preventive potential of international criminal justice in post conflict contexts. A notable example is the arrest of Mom!ilo Krajišnikon April 3, 2000, by French commandos belonging to the Stabilization Force (SFOR) in Bosnia-Herzegovina, pursuant to a sealed ICTY indictment. Krajišnik was charged with war crimes, crimes against humanity, and genocide for his leadership role in the Serb “ethnic cleansing” campaign during the Bosnian war. After Bosnian Serb president Radovan Karad” Krajišnik was the most influential wartime ultranationalist still active on the Bosnian political stage. His apprehension followed the arrest and demise of other indicted Serb wartime leaders. Equally notable, on September 24, 2000, Slobodan Miloševic lost re-election to the presidency of the Federal Republic of Yugoslavia and, refusing to accept the results, was forced out of office through massive street demonstrations in Serbia. Like Karadic, he was arrested and tried for crimes against humanity.
The dramatic dethronement of these once seemingly invincible architects of “Greater Serbia” and ethnic cleansing, has gone far beyond what most observers imagined possible when the ICTY was first established in 1993. Similarly, despite initial skepticism as to its credibility, the ICTR has apprehended most of the significant leaders implicated in the 1994 genocide against the Tutsi minority. These include Théoneste Bagosora, a Defense Ministry official and major architect of the Tutsi extermination plan, as well as Jean Kambanda, prime minister of the 1994 Rwandese interim government, who pleaded guilty to conspiracy to commit genocide. Now that a mounting number of wartime leaders are in the dock or on the run, one can fairly say that both the ICTY and the ICTR have become viable international judicial institutions.
The empirical evidence suggests that the ICTY and the ICTR have significantly contributed to peace building in postwar societies, as well as to introducing criminal accountability into the culture of international relations. Both institutions have helped to marginalize nationalist political leaders and other forces allied to ethnic war and genocide, to discourage vengeance by victim groups, and to transform criminal justice into an important element of the contemporary international agenda.
Besides the conscious fear of punishment, there is another, more subtle, dimension to general prevention—almost “constructivist,” if you will—that operates to prevent aberrant contexts by instilling “unconscious inhibitions against crime” or “a condition of habitual lawfulness” in society. As Professor Andenæs has argued, the expression of social disapproval through the legal process may influence moral self-conceptions so that “illegal actions will not present themselves consciously as real alternatives to conformity, even in situations where the potential criminal would run no risk whatsoever of being caught.”
Despite the adoption of numerous international instruments affirming human rights and humanitarian standards, international relations in the modern age have perpetuated a culture of virtually complete immunity. Idi Amin, Mengistu Haile Mariam, Pol Pot, and a litany of other tyrants have never been held accountable for their deeds. Notwithstanding the plethora of pious resolutions, solemn declarations, and legally binding treaties, the international community has accepted international crimes committed as an instrument of statecraft and political control. The long-term consequences of such a culture of impunity cannot be underestimated. Impunity erodes the inhibitions and restraints against such behavior, permitting an amoral account of raison d’état. Reversing this entrenched culture of impunity is a gradual and incremental process. By instilling such unconscious inhibitions in the international community over time, and gradually but definitively transforming the rules for the exercise of power, a new reality of habitual lawfulness may take root and develop.
 Introduction to International Law by Robert Beckman and Dagmar Butte accessed on the 23rd May, 2013 at 4.34.
 PCIJ, Judgment, Lotus case, Series A, Nº 10, p. 18.
 ICJ, Advisory Opinion, Reparation for Injuries Suffered in the Service of the United Nations, ICJ Rep. 1949, p. 180; italics added.
 Humanitarian intervention and International Criminal justice by Alain Pellet a Professor at the University of Paris X-Nanterre and a Member and former Chairman of the International Law Commission of the United Nations. He has written extensively in public international law and is the co-author (with Prof. P. Dailler) of the widely known Droit international public (6th edition, 1999, 1,451 pp.) and (with Prof. J.P. Cot) of a systematic commentary of the UN Charter. He has been Counsel in some twenty cases before the International Court of Justice.
 Sean D. Murphy, Contemporary Practice of the United States, 94 AJIL 369 (2000).
 Letter Dated 9 August 2000 from the Permanent Representative of Sierra Leone to the United Nations Addressed to the President of the Security Council, UN Doc. S/2000/786, annex (Aug. 10, 2000).
 SC Res. 1315, preambular para. 5 (Aug. 14, 2000), obtainable from <http://www.un.org/documents>.
For the Report of the International Commission of Inquiry on East Timor to the Secretary-General, see Identical Letters Dated 31 January 2000 from the Secretary-General Addressed to the President of the General Assembly, the President of the Security Council and the Chairperson of the Commission on Human Rights, UN Doc. A/54/
726–S/2000/59, annex ( Jan. 31, 2000).
 Wahid Reaffirms Commitment to East Timor Prosecution, FBIS Doc. SEP20000216000033 (Feb. 16, 2000) (trans. of JAKARTA DETIK, Internet version, Feb. 16, 2000).
Indonesia Finds Generals Involved in Timor Violence, FBIS Doc. FTS20000201000387 (Feb. 1, 2000) (trans. of NRC HANDELSBLAD (Rotterdam), Jan. 31, 2000, at 1).
 Indonesian Military ‘ET Findings Must be Proven in Court,’ FBIS Doc. FTS20000201000054 (Feb. 1, 2000) (quoting
JAKARTA POST, Internet version, Feb. 1, 2000).
 Rajiv Chandrasekaran, 19 Accused of East Timor Atrocities: But Top Generals Are Missing from Indonesia’s List of Suspects, INT’L HERALD TRIB., Sept. 2–3, 2000, at 4.
 UK Daily Views Indonesian President’s Risky Business, FBIS Doc. FTS20000201000753 (Feb. 1, 2000) (quoting editorial, TIMES (London), Internet version, Feb. 1,2000).
 See Rajiv Chandrasekaran & Aryanti Rianom, 24 Soldiers Are Convicted of Killing Aceh Villagers, INT’L HERALD TRIB.,May 18, 2000, at 1.
Michael Richardson, Wahid Seeks Inquiry into 1960s Killings in Indonesia, INT’L HERALD TRIB., Mar. 30, 2000, at 1.
 Mom!ilo Krajišnik was the president of the Bosnian Serb Assembly during the 1992–1995 war, the Bosnian Serb
signatory of the 1996 Dayton Peace Agreement, and the Serb member of the Bosnia-Herzegovina collective presidency during the post-Dayton period in 1996–1998.
 For a discussion of Karad”i#’s removal from public office, see Payam Akhavan, The Yugoslav Tribunal at a crossroads:The Dayton Peace Agreement and Beyond, 18 HUM. RTS. Q. 259, 278–79 (1996) [hereinafter Akhavan, Dayton Agreement];see also Payam Akhavan, Justice in The Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War CrimesTribunal, 20 HUM. RTS. Q. 737, 810–11 (1998) [hereinafter Akhavan, Justice].
 SFOR has also arrested, inter alia, General Stanislav Gali#, commander of the forces responsible for the siege of
Sarajevo; General Radoslav Krsti#, commander of the forces responsible for the mass execution of several thousand men at Srebrenica; and General Momir Tali#, chief of staff of the Bosnian Serb army and commander of forces responsible for the “ethnic cleansing” of some 60,000 non-Serbs in the Prijedor region. Tali# was initially arrested in Vienna by Austrian police while attending a seminar sponsored by the Organization for Security and Co-operation in Europe.
 For some early skeptical views on the potential success of the ICTY, see, for example, Anthony D’Amato, Peace vs. Accountability in Bosnia, 88 AJIL 500 (1994); David P. Forsythe, Politics and the International Tribunal for the Former Yugoslavia, 5 CRIM. L.F. 401 (1994). For the present author’s contrary views, see Akhavan, Dayton Agreement
 The Rwandan government, for example, expressed concern before the Security Council in 1994 that the ICTR would “disperse its energy by prosecuting crimes that come under the jurisdiction of internal tribunals” such as “crimes of plunder, corporal punishment or the intention to commit such crimes, while relegating to a secondary level the genocide that brought about its establishment.” Rwanda also complained that “certain countries, which need not be named,” had proposed candidates for judges and participated in their election despite the fact that they “took a very active part in the civil war in Rwanda.” UN Doc. S/PV.3453, at 15 (1994).
Prosecutor v. Kambanda, Judgment and Sentence, No. ICTR–97–23–S (Sept. 4, 1998), reprinted in 37 ILM 1411 (1998).
 Andenæs distinguishes this broader moral concept of general prevention from special and general “deterrence” as follows: The effect of the criminal law and its enforcement may be mere deterrence. Because of the hazards involved, a person who contemplates a punishable offense might not act. But it is not correct to regard general prevention and deterrence as one and the same thing. The concept of general prevention also includes the moral or sociopedagogical influence of punishment. The “messages” sent by law and the legal processes contain factual information about what would be risked by disobedience, but they also contain proclamations specifying that it is wrong to disobey.