The Age of Impunity

By David Miliband
A woman sits in front of her destroyed home in al-Basher​ia, Syria, April 2012  (Source: Bradley Secker / laif / Redux)

President Joe Biden has been blunt about the enormity of the challenge that his and other democratic governments face in this era of rising authoritarianism. “This is a battle between the utility of democracies in the twenty-first century and autocracies,” he said in his first White House press conference. “That’s what’s at stake here. We’ve got to prove democracy works.”

Values are back, and not only on the domestic front. Biden’s administration will place greater emphasis on defending human rights around the world, including in China and Russia. He wants humanitarian need to figure in military strategy and has withdrawn U.S. support for offensive measures by the Saudi-led coalition fighting against the Houthi rebels in Yemen, which is now home to the world’s largest humanitarian crisis. He wants the United States to live up to its legal and moral commitments and has restored some rights to asylum seekers.

For all this, there are good reasons to be grateful. Former President Donald Trump’s commitment to deals rather than values emboldened autocrats around the world. Civilians killed in war were not Trump’s concern. Nor were refugees driven from their homes or journalists imprisoned in authoritarian countries. However, the experience of his two immediate predecessors makes clear that simply declaring support for values does not make them spread.

President George W. Bush proclaimed in his second inaugural address that “the survival of liberty in our land increasingly depends on the success of liberty in other lands,” and his administration set out to support the expansion of electoral democracy around the world. Yet according to Freedom House, which tracks global democratic trends, 2005 was the year that political freedom began a multiyear retreat.

For his part, President Barack Obama set up an Atrocities Prevention Board to make halting genocide and mass atrocities a “core national security interest and core moral responsibility.” But the belligerents in Syria and South Sudan, among other places, would not be disciplined by a committee of officials in Washington.

Bush’s and Obama’s efforts were not without merit or achievement, but they revealed the challenges of spreading liberal democratic values. The former’s efforts were too grandiloquent, sweeping, and simplistic, the latter’s too circumscribed and technocratic.

The fight against impunity—the capacity of actors to commit crimes without facing justice—and for accountability provides an agenda at once more practical and inclusive than previous efforts to bring values into foreign policy. Biden should make “accountability promotion” the foreign policy cause of his presidency. It would sit naturally alongside his commitment to “democracy promotion” at home. To achieve more than Bush and Obama did on this front, he will need to rally a coalition of governments, private businesses, and civil society to build “countervailing power” against the forces of impunity.

THE RISE OF IMPUNITY

In conflict zones around the world today, impunity is on the march. Whether it is Saudi Arabia bombing a bus carrying Yemeni schoolchildren or President Bashar al-Assad and his allies targeting health facilities in Syria, governments and rebel groups increasingly violate international laws and norms without being punished or held to account. The missiles and rockets flying between Israel and the Occupied Palestinian Territories, with civilians on the receiving end, are just the most recent example.

As a result of the rise of impunity, civilian death and displacement are on the rise. An average of 37,000 civilians were killed in conflict each year between 2016 and 2020, according to the Armed Conflict Location and Event Data Project. That is two and a half times as many civilian fatalities as in the previous five-year period and nearly ten times as many as in the period from 2005 to 2009. Around the world, a record 79.5 million people have been forced to flee their homes, primarily as a result of conflict. Attacks on health facilities have also increased. Since the UN Security Council passed a resolution condemning attacks on hospitals in May 2016, there have been over 2,000 attacks on health facilities worldwide. Even during the COVID-19 pandemic, more health workers and patients were killed in 2020 than in 2019. Meanwhile, ethnic cleansing and killings of aid workers have accelerated as well.

The fight against impunity in war zones is a legal as well as a moral imperative.

The fight against impunity in war zones is a legal as well as a moral imperative, since the rights of civilians are delineated in UN charters, conventions, and laws. Yet those who violate these laws are supported and encouraged by systems that shield them from accountability: military rules of engagement that gloss over international humanitarian law, political coalitions that look the other way when members transgress, and appeals to national sovereignty that shield wrongdoing from investigators and observers.

In 1998, the French jurist Louis Joinet laid out four principles for preventing impunity: the right to know about crimes and abuses, the right to justice, the right to reparations, and the right to nonrecurrence of those crimes or abuses. All four “Joinet Principles” are currently under threat. Governments are barring journalists from conflict zones and shutting the Internet down. The International Criminal Court is under fire. And reparations and nonrecurrence are in the realm of fantasy.

The Biden administration has proposed a summit of democracies. The fight against impunity should be the agenda for that meeting and beyond. Biden and his team should lead a coordinated and thorough effort, composed of liberal democratic countries but not limited to them (and not confined to the public sector), to dismantle the systems and cultures that support impunity and to build systems and cultures of accountability in their place. Done right, these efforts will create a virtuous circle, in which fear of accountability grows, systems that shield rights abusers from punishment come under pressure, and cultures of abuse begin to change.

The Countervailing Power  

A powerful framework for thinking about the fight against impunity comes from the field of economics. In his 1952 book, American Capitalism: The Concept of Countervailing Power, John Kenneth Galbraith made a compelling case for disciplining the behemoths of the postwar U.S. economy to safeguard the interests of working families. For Americans to benefit from the efficiency of these large corporations without falling victim to price gouging and other abuses, a “countervailing power” of checks and balances was needed to protect consumers and workers. This countervailing power took the form of the minimum wage and federal price supports for farmers, among other policies, and organizing it was “the central task of government.”

Today, countervailing power is needed in international relations to build up systems and cultures of accountability that can counteract those of impunity. Where impunity thrives on secrecy, countervailing power demands transparency. Where impunity seeks to hide, countervailing power seeks to expose. Where impunity dismisses calls for accountability as foreign meddling, countervailing power points to the UN Charter and the laws associated with it and demands that they be honored.

Those who take the lives of noncombatants in battle must not be able to do so without consequence.

Those who take the lives of noncombatants in battle—shelling their homes, bombing their health centers, rounding up and killing them simply because of their ethnicities—must not be able to do so without consequence. Such crimes should be the focus of a drive against impunity, because they represent the tip of the iceberg: if civilian life cannot be protected in conflict zones, then what hope is there for harder cases, where there is no official conflict, where the laws of war are less relevant, and where international humanitarian law is less well developed? Civilians have rights in conflict. Countervailing power is needed to make those rights count.

The Necessary Coalition

Combatants in conflict increasingly feel free to disregard the rights of civilians in war because they face few political, economic, or legal costs for doing so. Changing their calculus, in order to change their behavior, will require action not only from other governments but from the public and private sectors and civil society. The response must be multisectoral or, as Pascal Lamy, the former director general of the World Trade Organization, calls it, “plurilateral.” Just as it took government power, private-sector resources, and civil society pressure to pass the Arms Trade Treaty or to establish the International Criminal Tribunal for the former Yugoslavia, it will take all three of these elements to reverse the trend toward an age of impunity.

It has been refreshing to hear the Biden administration pledge to stand up for the rule of law—a commitment that starts at home. Countries seeking to curb impunity must make sure they live up to international standards of accountability, whether at home (for instance, through fealty to the law) or abroad (for instance, through independent investigations of alleged breaches of the law). By meeting those standards themselves, they set the stage to band together and seek to hold other actors accountable, too.

In this effort, there are tools available for the United States and its partners that are currently going unused. For example, the United Nations’ investigations of war crimes in Syria have been halfhearted: too few in number, too narrowly focused, not properly followed up. The New York Times and independent investigators, such as Bellingcat and the Syrian Observatory for Human Rights, have done more than narrowly circumscribed UN commissions to expose abuses of international law in Syria. 

Some might counter that Russia would veto anything more stringent. But Russia has paid a limited price for that obstruction in recent years, and unless that price is raised, Moscow will conclude, rightly, that other countries do not care. The same goes for other conflicts, including the one in Yemen, where the Saudi-led coalition, which until recently included the United States, has been implicated in rights abuses alongside the Houthi rebel group.

Those committed to ending impunity should support efforts to use legal systems to hold perpetrators accountable. Germany, for example, has allowed evidence gathered by independent nongovernmental organizations and Syrian refugees to be used in court to convict Syrian nationals under the principle of universal jurisdiction. This is an important step forward and should sit alongside the use of Magnitsky-style sanctions against those guilty.

Other tools for fighting impunity are military-to-military relationships, military trainings, and military coalitions with friendly nations. Adherence to international humanitarian law should be a foundational part of these contacts. A recent report from the International Committee of the Red Cross highlighted the importance of what the organization calls these military “support relationships” for enhancing civilian protection. Thoughtful members of the U.S. military recognize the practical as well as principled reason for these commitments and were appalled by Trump’s rhetoric about the conduct of war.

However, governments alone cannot summon a great enough countervailing power to curb impunity. The private sector, with its enormous leverage and responsibility, must be part of the equation. Weapons manufacturers, or financiers of weapons manufacturers, who think it is wrong for their weapons to be used to target civilians have a duty to speak up and act accordingly. Insurance providers underwriting products or governments that contribute to violations of international humanitarian law should ask themselves: “Why are we doing this?”

Tech and media companies have an especially great responsibility, because control of the information space is so critical to sustaining systems of impunity and shielding violators from accountability. In conflict zones around the world, effective news blackouts are the norm now, not the exception. Breaking these blackouts takes political pressure but also requires technological innovation to allow civilians to safely document events and transmit that information abroad.

Corporations will be tempted to make only symbolic gestures. There is a plague of greenwashing and symbolic corporate gestures. In 2019, for instance, many companies decided to boycott a conference in Saudi Arabia known as “Davos in the Desert” after the murder of the Saudi journalist Jamal Khashoggi. But the same companies decided to participate the very next year, even though even more evidence of official Saudi involvement in the killing had been made public. For private-sector participation in the coalition against impunity to make a difference, it must be sustained. In the end, this means convincing businesses that governments that disrespect human rights will end up abusing property rights, hitting the bottom line.

Forging a coalition for accountability and against impunity will be hard work. But if values are to inform U.S. foreign policy once again, as Biden has promised, then the fate of civilians in conflict zones must be central to the administration’s definition of success. There is no better test of whether America is really “back” than turning the tide of impunity—and that will take a commitment to building countervailing power piece by piece, sector by sector, issue by issue. New laws will not be necessary. The rules and ideas in the UN Charter and associated documents are sufficient. They just need to be upheld.