Introduction

Social peace of any society is based on the security and safety of its members and institutions, which means protection from any infringement on their safety or rights by others. This protection is achieved through the law by means of deterrence, represented in the arrangement of appropriate penalties for all acts that violate the safety and rights of others. The success of this legal deterrent in achieving its objectives prevents individuals or institutions from resorting to any other means to protect their safety or rights, including violence, and thus it is one of the main components of the state’s unilateralism using violence within the borders of the territory covered by its sovereignty. Since this unilateral use of violence is by definition one of the foundations upon which the modern state is based, the legal deterrent remains a main pillar for the establishment and survival of this state, and any major defect in it represents an imminent danger to it.

Impunity, in its simplest definition, is simply that the legal deterrent fails to materialize on the ground. The legal text on paper is just a promise, that if an action takes place, the perpetrator must be held accountable and punished in the manner specified by the legal text. On the ground, the text comes alive by applying it. If the legal text is not implemented, it would not be worth the ink in which it was written. It should be made clear here to emphasize that, contrary to what the phrase “impunity” implies, that it relates to a perpetrator who manages to evade the law’s pursuit for punishment, the concept that concerns us here is related to the failure of the executive mechanism of the law. The success of the perpetrator of a crime in escaping the law or circumventing its implementation procedures, which is possible, does not threaten the legal deterrent, but rather represents the exception that confirms the rule. However, the failure of the executive and judicial system to hold accountable and punish the perpetrators of crimes without the need for them to flee or deceive, is what constitutes a defect that threatens the legal deterrent in principle. In other words, legal deterrence is achieved by the availability of community members' confidence in the system based on its implementation, specifically the principle that the perpetrators should not escape accountability and punishment, and this trust is not shaken by sporadic transient cases, but it collapses completely when the failure of this system is frequent, systematic, and has clear and predictable patterns.

Thus, this paper addresses impunity as a phenomenon and not as isolated and scattered cases, and seeks to understand the factors that lead to the spread of impunity in a society, and to clarify the impact of this on society and the state. Since impunity is primarily a negative concept, meaning that it refers to the absence of something and not to its independent existence, we are discussing it here in the context of two main positive concepts with which it is closely related, namely the rule of law and transitional justice. While the first concept is a fundamental pillar of the existence and continuity of the modern state, the second has established its existence as a major tool to restore the existence of this state and ensure its continuity when it is in danger of collapse or actually collapses under the weight of systematic gross violations of the rights of its citizens and the absence of civil peace, and its replacement by armed conflict and civil war.