Individual Accountability for Human Rights Abuses: Milošević and Beyond

Abstract

This chapter adds a practical dimension, by examining the trial of Slobodan Milošević, chosen for its importance as a test case for putting a head of state on trial and to show the relationship between international jurisdiction and national sovereignty. It serves to illuminate post-Westphalian elements in international criminal law which do not truly impinge upon national sovereignty, although some nationalists perceive them as doing so. International criminal courts do not violate state sovereignty, but rather enable it to be exercised in an interdependent manner, particularly appropriate for political and military leaders after regime change. An important principle has been injected into international relations, namely No one is above the law. Sovereignty cannot be absolute and impunity (effective immunity from prosecution) can no longer be relied upon. The Westphalian model of sovereignty requires a new conceptualization which involves imputing to the sovereign states certain moral obligations both to the citizens and to the international community. The latter, in turn, has a moral duty to protect the lives of citizens of states which are so failed that they cannot give any protection to those lives. Thus, the notion of responsibility for the welfare of citizens becomes a characteristic of sovereignty. Although international justice made enormous progress when the Rome Statute entered into force (2002), thereby creating the first permanent international criminal court (ICC), there are still serious challenges to its jurisdiction which cannot in practice be exercised in the face of a Security Council’s veto by one of the “big five” powers.