The system of international law and the risks of impunity

The system of international law and the risks of impunity

Helena Kennedy, barrister at the English bar, member of the House of Lords and head of the IBAHRI, talks about populism, injustice and impunity.

Key Points


  • People don’t want courts beyond their own borders making decisions that might affect how they live, and yet we cannot function without holding one another to account and seeking to create standards that cross borders.
  • The rules-based order is based around the idea that there has to be the rule of law and that there has to be respect for human rights.
  • The challenge is to configure a world in which there is real meaning to international law.

The retreat into nationalisms

Photo by Alexandros Michailidis

One of the things that seems to be happening now in the 21st century is, that instead of embracing the idea that in a globalised world we have to operate together and that there has to be more multilateralism and acceptance of legal processes that cross borders, there’s almost been a kind of reluctance to do that and a retreat into nationalisms. Perhaps this is because a globalised world feels too frightening and people feel they are losing their identity and therefore take comfort in securing their identity within national boundaries. The difficulty with that is that it involves attacking international courts.

People don’t want to have courts beyond their own borders making decisions that might affect how they live and yet, at the same time, we cannot function as a world without holding one another to account and seeking to create standards that cross borders, if we don’t have international entities to deal with conflicts and with erosions of the standards that we’re seeking to set.

Maintaining rules-based order

And so here we were after the end of the Second World War, creating a rules-based order. I remember very distinctly a moment when President Trump was looking at the suggestion by other world leaders that we had to maintain the rules-based order. He then said not the rules-based order, but our rules-based order, as though it was somehow negotiable, and that it had to be recreated in a different way from the one that existed.

Now, the rules-based order is based around the idea that there has to be the rule of law and that there has to be respect for human rights. When people are not abiding by those rules or not abiding by human rights, what do you do? What do you do when the generals take over Myanmar, when there has been an election in which quite clearly a Democratic party won? What do you do about Belarus, where the opposition party won in the face of a Stalinist leader? What do you do about places where serious crimes are being committed against minorities? We had it with the Yazidi: this terrible, terrible crime against a small people who lived in northern Iraq and who had their own very ancient religion, who were despised by other peoples in the region.

We saw that ISIL, this non-State actor group of people – they might have called themselves a State, but they were not a State in law – not only slaughtered huge numbers of men and boys but enslaved women and girls, and raped them repeatedly to render them so damaged by the experience that the cost of that will go on for generations.

Unthinkable levels of crime

Photo by Mamunur Rashid

What do you do about that level of crime? What do you do about what’s happening to the Uighur in one of the provinces of China, where the Muslim people of that region who have a very distinct culture, language and religion are having those things taken from them? We know from independent evidence that there has been a destruction of the mosques and the burial grounds, the very things that go towards a sense of self that all people have whether they, too, are experiencing rape of the women and an interference with the reproductive system so that they’re being forced to have abortions and to be sterilised. Where the men and women are in forced labour camps, which is perhaps more useful than slaughtering them because they are there working, and the story to the world is then that they’re being educated, that these are educational establishments. Or where the boy children are being put into special schools where they are deracinated, not allowed to speak their own language or know their own culture.

Why perpetrating nations act with such impunity

To see all of that happening and to stand by makes us as nations complicit in the horror. And yet we know that the system of international law, which would not normally mean that another nation would take China to the International Court of Justice accusing it of genocide, isn’t open to us because China would veto it. It’s one of the small number of nations on the Security Council that has that incredibly powerful element at its disposal. Taking China to the International Court of Justice is not going to happen, and individuals can’t be taken to the International Criminal Court for genocide because China hasn’t signed up to the Treaty of Rome, which makes you a nation that has accepted the jurisdiction of the International Criminal Court. So, impunity reigns.

One is having to think, how can we deal with this? You have to think about the usual sanctioning mechanisms and whether you trade with such a nation, even if it’s one of the most powerful trading nations in the world. We also know that China has now got many world nations indebted to it because of the way in which it has supported infrastructural change in parts of Africa, building roads and airports and so on. What do you do? The challenge is to configure a world in which there is real meaning to international law.

Prevention and political will

Photo by Phil Pasquini

One of the ways to deal with this would be to empower nations individually not to convict China, but to be able to say that China is in the process of committing a genocide and therefore nations have to decide whether they’re going to trade with a nation that is doing that. The genocide convention compels us to prevent genocides, not to wait until they’re over and then wring our hands and bring people before courts. You’re supposed to prevent it when it’s in progress. The world has now become concerned with its individual financial interests ahead of preserving a level of standards, in terms of law and protection, that we thought that we were working towards as we came to the end of the 20th century.

So, we have to revisit some of these things. But to do so, there has to be political will, and the world at this moment, I’m afraid, is too caught up in the embrace of populist government, which is retreating from the great principles of liberal democracy. We’re at a danger point, and this is a moment where we have to think, how do we move forward? What kind of world do we want to have and can we persuade the people of the world that there is a better way?

Discover more about

rules-based order

Kennedy, H. (2004). Just Law: The Changing Face of Justice – and Why It Matters to Us All. Vintage.

Kennedy, H. (2004). Legal Conundrums in our Brave New World (Hamlyn Lectures). Sweet & Maxwell.

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