Why the Age of Impunity endangers us all

State and non-state actors behave as though the rules don't apply to them, and civilians are paying the price.

The changing balance of economic and political power in the world is geographic – with a shift from west to east – but it is also ideological. There are two components to this ideological turning of the tide: first, authoritarianism is on the rise and democracy in retreat, and second, assertions of national sovereignty are increasingly challenging international law.

According to the Economist Intelligence Unit, only 8.4 per cent of the world’s citizens live in countries classified as “fully democratic”. The Varieties of Democracy project at the University of Gothenburg says we are living through a “third wave of autocratisation”, and has the data to back it up.

Meanwhile, Global Trends 2040, the report from the US National Intelligence Council, highlighted that the “rule of law” would be under threat in international relations by 2040. But it is in retreat today.

These two trends reinforce each other. John Ikenberry, a professor in politics and international affairs at Princeton University, has made a compelling argument that the building of the international rules-based order after 1945 was conceived as a bulwark against democratic erosion. So today, what is called “democratic recession” undermines international law and institutions, and the retreat from the principles and ideals of a rules-based order undermines democratic arrangements at home.

One of these principles is especially well-established, and so its erosion is all the more dangerous. It concerns the rights of civilians (and aid workers) in conflict zones. These are matters of life and death. The Geneva and UN Conventions are clear about the rights to life of civilians in conflict. International law could not be more explicit or more universal in setting out the duties of parties to conflict to avoid killing civilians.

My concern is that if civilian life cannot be protected in conflict zones, where the Geneva Conventions are intended to reign supreme, then what hope is there in respect of harder human rights cases, where there is no official conflict, where the laws of war are less relevant, where international humanitarian law is less well-developed? In that sense, the case study of civilian loss of life in conflict is the tip of the iceberg of impunity. Yet in conflict zones, impunity increasingly is the order of the day.

On 7 October, the UN Human Rights Council voted against renewing the mandate of the UN Group of Eminent Experts in Yemen. The move represents a coup for the forces of impunity. The Group of Eminent Experts, or GEE, was the only international, independent and impartial mechanism operating in the world’s joint largest (with Afghanistan) humanitarian crisis.

Yemeni civilians have been subject to school bus bombings, attacks on hospitals, and siege-like tactics preventing the import of life-saving food and medicines. For them, the loss of the GEE is a green light for both the Saudi-led coalition and Houthi forces to pursue the most brutal tactics possible in the war.

This matters beyond Yemen because it is part of a global trend. There are growing numbers of civilian victims of war – an average of 38,500 civilians are killed in conflict each year, more than double the average five years ago and nearly seven and a half times the average in 2008. There are more attacks on health facilities: far from abating during the global pandemic, these attacks have only worsened, with more health care workers killed in 2020 than in 2019. There is more ethnic cleansing. There are more killings of aid workers. And more civilians are fleeing conflict: there are a record 79.5 million refugees and displaced people around the world.

The Group of Eminent Experts called what is happening in Yemen a “pandemic of impunity,” but looking across the globe we are in what can only be described as an age of impunity. From Syria to Yemen to Ethiopia to Somalia to Nigeria to Afghanistan, state and non-state actors are behaving as though the law is for fools – because it is.

Although interstate conflict is rare, internationalised intrastate conflict (where at least one side receives direct support from other governments that actively participate in the conflict) has mushroomed in the last decade, with around 30 active conflicts of this kind. The rise of impunity is closely tied to the growing internationalisation of civil conflicts. More parties to a conflict have led to more breaches of international law – for example missile strikes on ambulances in Syria, kidnapping of school children in Nigeria, killings of aid workers in Ethiopia – by states as well as non-state actors, many of whom have foreign suppliers of guns and resources.

The last 15 years have seen a significant shift from the 2005 commitment to the “responsibility to protect” which represented the peak of the global commitment to accountability. In all the talk of Great Power competition over the next decade, and at its heart the US-China rivalry, there is a danger of missing a critical and parallel contest – between accountability, which is painstaking, slow and often nuanced, and impunity, which is gratuitous but fast. It is going to be a tough struggle.

The only way back is a concerted effort to shift the balance of power – with a reassertion of what John Kenneth Galbraith in 1952, talking about the US economy, called “countervailing power”. The idea of countervailing power is simple: where impunity is caused by imbalance of power in the interests of the powerful, the restoration of balance takes countervailing power.

Where impunity thrives on secrecy, accountability demands transparency. Where impunity calls investigations “foreign meddling”, countervailing power insists on the facts. Where impunity consummates imbalances of power, countervailing power seeks to redress the balance, with opposing power in return.

The challenge for countries that care about the rise of impunity is, first, to make sure that their own actions live up to standards of accountability, whether at home, for example through fealty to international law, or abroad, for example through independent investigations of alleged breaches of the law. This makes the insouciance of the British government about breaching international law of more than passing interest. This is precisely the hypocrisy that the Russians and Chinese think defines Western policy-making, and makes it questionable.

Second, they need to band together to raise the political, economic and legal price of impunity. The price of efforts to cover up abuses needs to be raised, not least as independent organisations such as Bellingcat have shown striking ability to get to the bottom of what actually happened. Regional and specialised organisations, such as the Organisation for Security and Cooperation in Europe (OSCE), should also take on the task of independently investigating, reporting, and assigning attribution for abuses.

Legal tools should then be mobilised. The action of the German government in supporting prosecutions in German courts of Syrians accused of crimes, using principles of universal jurisdiction, are a strong warning that the reach of justice can be global. Universal jurisdiction can serve as an alternate pathway to justice when access to international tribunals is blocked.

The economic stick also matters, not least in the form of sanctions following the Magnitsky model, targeting those responsible for human rights violations or corruption. And if arms manufacturers and their financiers don’t want their products to be used to kill civilians, then they should be supporting much tougher arms export controls.

“Great power competition” must not mean principles go out of the window. It will be in conflicts such as Yemen, Syria and Ethiopia that the battle for accountability is won or lost. And it is in meetings such as the G7, and the proposed US “Summit for Democracy” that strategy and tactics for this battle need to be decided.