Futureproofing Human Rights Symposium: When the Center Cannot Hold – Grey Zones in “The Age” of Accountability

[Jorge Peniche is an international lawyer specializing in transitional justice and accountability, with a focus on emerging settings. He is the Associate in Mexico at G37 Centre and an Associate Professor at Universidad Iberoamericana (Mexico), where he teaches on transitional justice, organized crime and security. He holds a Master of Laws from New York University.]

Preludium: “I Want Consequences…”

“I want consequences,” she told me.

“Against whom?” I asked.

“Against those most responsible… the system that allowed this to happen,” she concluded.

It was a conversation I had with the relative of a man who disappeared along the Mexico-US border around 2011 about her relentless search for accountability. We know some pieces of the puzzle: her brother was abducted by an –allegedly private– armed group while traveling on a road near the border in Coahuila, a northern state in Mexico.

One could think of many actors to hold responsible. The local police—potentially complicit or, at the very least, willing to turn a blind eye (some level of state knowledge is always involved for organised crime to thrive). The armed group—the direct perpetrators. The prosecution authorities, whose failure to investigate adequately only deepens impunity.

Her case is not unique. It is one among hundreds in the World’s Deadliest Migration Land Route, where 686 migrant deaths and disappearances were recorded at the Mexico-US border in 2022. Yet, the cases are often framed as something inevitable: they are what happens when you ‘try to cross the border’, an unwritten but real rule in a lawless space. This example illustrates an emerging trend in the field of accountability for gross human rights violations that assumes some events to be beyond accountability’s reach. This blog uses the notion of ‘grey zones in accountability’ to identify the scope and effects of this trend.

Introducing “Grey Zones in Accountability”

The global order that emerged after World War II solidified human rights as its golden standard in the 1970s. 

Between the 1980s and 1990s a so-called movement for “accountability for gross human rights violations” –which entrenched the use of norms for the adjudication of individual criminal responsibility as its highest expression– gained increasing prominence. By the end of the first decade of the 21st century, some specialists –and even the UN Secretary-General– heralded that we were living in the age of accountability, inaugurated with the advent of the new century.

Flash forward, as we witness the dusk of the first quarter of the 21st century, that same order –and the human rights framework now considered ingrained into it– is currently described as in crisis. 

In this piece, I argue that the trend of growing defeatism regarding the potential for obtaining accountability for certain gross human rights violations is one of the ways in which this crisis manifests itself today. I call these situations ‘grey zones’ to underline that they are not a matter of formal gaps, but rather of deficient interpretations of, attitudes toward, and approaches to accountability.

These grey zones reflect some of the defining trends in current global politics when assessed through the lens of state governance practices within their territory, including contexts of criminal governance, state capture and the securitization of borderlands.

What characterizes these grey zones is that

• Under parallel circumstances with similar events, accountability expectations would be triggered, whereas here, human rights violations are minimized.
• Accountability expectations are diluted, displaced, and/or framed as unrealistic, despite the presence of normative safeguards to further accountability.

While, in practice, accountability for human rights violations always exists on a continuum and full accountability is never achieved, what is central to the notion of grey zones is that they deal with expectations. In ideal circumstances, the violation of human rights triggers an expectation of accountability that is not typically contested – even if its materialization may falter. By contrast, the notion of grey zones refers to settings where the very possibility and relevance of accountability is called into question.

This piece therefore understands accountability to refer to criminal sanctions and adjudication mechanisms, as well as to the more normative and foundational idea that actors –especially those in positions of power—must bear consequences for their actions and omissions regarding both negative and positive human rights obligations. Accountability can take place in various forums, not just legal ones, with political arenas also playing a crucial role. This broader understanding foregrounds questions that are crucial to the notion of grey zones, such as, who must be held accountable? To whom is accountability owed? For which actions or omissions? Why should accountability be ensured? And in what way should it be pursued? 

As such, the notion of ‘grey zones’, originally developed by concentration camp survivor Primo Levi (1986) serves here as an analytical lens for describing complex social and political phenomena. Recently, this lens has been applied in various fields like mafia studies and organised crime, critical studies of international criminal law, and in state formation and democratization studies.

While various attributes are ascribed to the notion of grey zones, the one most relevant for this piece is that they engender a difficulty of assesment: within a grey zone, things are fluid, ambiguous and hard to grasp. Because of this, the concept helps to acknowledge, locate and characterize otherwise elusive dynamics. 

Applied to accountability debates, the concept points to a reality in which uncertainty becomes the rule since even the expectation of accountability is made uncertain because of the minimization and normalization of human rights violations in these contexts.

Three Initial Contexts that Fall Within Grey Zones in Accountability and Why They Matter

In this section, I discuss how grey zones affect the accountability landscape –and debates around it– in three specific realms: criminal governance, state capture that resorts to violence, and border protection. Across these three contexts, the behaviors of states are shaped by rising authoritarianism and democratic decline, notably when it comes to security. This enables states to minimize—or even shield themselves from— expectations of accountability, either through the dilution of responsibility (as seen in criminal governance), the normalization of violence as a tool for regulating societal relations (as seen in certain forms of state capture), or by regime design (as seen in borders securitization).

1. Criminal Governance

Contexts of criminal governance refer to situations in which criminal organisations impose rules of conduct and behavioral restrictions on communities. The key characteristic of these contexts is that criminal groups do not operate outside or apart from the state. Instead, they co-exist with the state in a symbiotic relationship. States may contest, ignore, deny, or even collaborate with criminal actors. The defining feature of criminal governance is thus its embeddedness in state structures. As Lessing (2020) notes, this “duopoly of violence” sets criminal governance apart from both state governance and more common forms of non-state governance. Recent analyses have sought to explain criminal governance in relation to state capacity, institutional fragility, and the shared—or contested—exercise of authority. Criminal governance contexts are not marginal situations. Tens, if not hundreds of millions of people around the world live under some form of criminal governance. According to the latest UNODC Global Homicide Report, between 2021 and 2023, homicides outside conflict zones (440,000 deaths) far outnumbered conflict-related deaths (94,000). Moreover, homicides linked to organised crime and gang-related violence account for nearly 40% of global killings. It is reasonable to assume that a substantial share of these killings occur in areas where criminal governance structures are in place.

The notion of ‘grey zones’ is highly relevant here: Despite the existence of formal protections, states are well positioned to dilute responsibility. Indeed, the abovementioned violence can even come to function as de facto governance mechanisms: Lethal violence and disappearances are two of the most extreme manifestations of criminal governance, whereby these acts become integrated in a perverse logic of policing and punishing which replaces and displaces any expectation of accountability as we normally understand it. Furthermore, states can often justify–or even benefit from— framing such violence as a product of “criminal activity” beyond their direct control (and responsibility). 

2. State Capture

Much like criminal governance, certain manifestations of state capture develop strategies to counter expectations of accountability. Contemporary understandings of state capture have evolved to recognise that ‘capturers’ can include a broad range of actors—from organised crime to legal entities such as businesses or political parties – who do not merely exploit existing norms (e.g. through corruption), but instead exercise “control over the means of articulating the basic rules of the game.” 

One critical feature of state capture places it within a grey zone of accountability. Because the motivation behind state capture is to wield sufficient power to dictate the rules of the game and ensure impunity, the boundaries between state actors and ‘capturers’ often blur, and the locus of accountability is displaced. 

Since state capture also constitutes a form of governance –at least in practice– states in these contexts reap the benefits of both worlds: They function under, and even benefit from, this deviation of the public interest toward private, elite gains while simultaneuously benefitting from its own institutional weakness to dilute accountability. 

Although correlation does not always imply causation, an innovative exercise –the Global State Capture Index (2024)– ranked countries like Nicaragua, Venezuela, and Syria—where systemic gross human rights violations persist– among those with the highest levels of capture. This finding underscores the pressing need to further examine how their particular capture dynamics may shape expectations of accountability. 

3. Borderlands 

While states have always regulated borders to some degree, borderland securitization –or the treatment of migration as a security threat– is a relatively recent phenomenon that has intensified in the 21st century. Human rights violations ocurring in the context of borderland securitization cover not only people in mobility but the communities that inhabit borderland spaces as well as their communities of origin.

Peripheralization of borders –one of borders built-in features– allows states to be selectively present (for instance, through extreme securitization and border controls), while at the same time absent when needed (for instance, when it comes to protecting people in mobility trying to enter these borders). Here, too, voids are filled by private actors, as evidenced by smuggling accounts in the Mediterranean or testimonies from migrants at the Darién Gap, El Petén in Central America and the Mexico–U.S. border, where individuals are even handed over by the police to organised crime for forced labor as a common practice. 

These clearly challenge the likeliness– or even the expectation thereof – of accountability emerging: states can conveniently benefit from these practices that complicate the question of where to direct accountability efforts. 

Conclusions

In this piece, I have aimed to flesh out a distinctive dimension of failing human rights accountability, namely challenges to the mere expectation of accountability. I have characterized these realities as ‘grey zones’ because of the uncertainty they produce. Although this is an operational concept—a placeholder intended to help us understand why accountability emerges in some contexts and not in others—it yields, at the very least, three key benefits. First, it enriches our understanding of accountability—and its variability—as something that unfolds within the political theater and reflects broader trends in global affairs. Second, it allows us to question the supposed “inevitability of human rights” in light of current state practices that prioritize competing governance incentives, thus revealing the need to rethink our assumptions about how accountability happens. Third, the concept challenges the presumed inseparability of human rights promotion and accountability, a linkage that is itself a product of the last four decades. More importantly, identifying this current trend –the emergence and entrenchment of so-called “grey zones” in the accountability landscape– invites us to recognise that accountability, as a foundational aspiration, still carries weight even amid complex backdrops. Meeting that aspiration, however, requires us to move beyond formulaic understandings of what and how “accountability mechanisms” should look like toward more grounded, politically aware and context-sensitive approaches.

Author’s notes: The reflections in this post are part of G37 Centre’s line of work Pursuing Justice in Adverse Settings, as well as its innovative efforts to map impunity when designing justice interventions in contexts of marginalization, extraterritoriality or involving borderlands.

The author expresses deep gratitude to the reviewers from the Futureproofing Human Rights Program for their thoughtful feedback, which greatly contributed to shaping the final version of this piece. Special thanks are also due to Michael Reed Hurtado, Head of Programs at the G37 Centre, for his invaluable insights and comments.

This blog is part of a seven-part symposium which was reviewed and edited by members of the IBOF Futureproofing human rights’ team: Tine Destrooper (Ghent University), Wouter Vandenhole (Antwerp University), Ben Grama (Ghent University), and Marion Sandner (Hasselt University).