Provisional justice in protracted conflicts: The place of temporality in bridging the international humanitarian law and transitional justice divide

Abstract

2024 will mark seventy-five years since the adoption of the 1949 Geneva Conventions. Despite the drafters’ efforts to mitigate the worst horrors of armed conflict, contemporary conflicts continue to witness the death and suffering of millions. This raises fundamental concerns over the ability of international law to alleviate the harm caused to those caught up in armed conflict, to redress violations and to prevent their recurrence. In international policy, international humanitarian law (IHL) is increasingly intertwined with transitional justice and in particular its emphasis on the centrality of human rights. This article focuses on the intersection between IHL and transitional justice in protracted conflicts, interrogating their increasing overlaps, complementary intersections and even tensions. In particular, the article examines the importance of the temporal dimensions of humanity and justice in prevention of violations. In doing so, the article concentrates on the impact of time on those harmed by armed conflict and the repercussions this has on the law and justice efforts. The article argues that time can be weaponized to frustrate accountability and prevent interference with belligerents’ behaviour. Victims in war cannot wait until the end of fighting to seek the recovery of the remains of their loved ones, for those responsible to be brought to justice, and for redress of their continuing suffering. Indeed, such delays amount to violations of victims’ right to an effective remedy and fail to stop the continuation of violations or the re-victimization of civilians and their communities. The article suggests the need for “provisional justice”, whereby, in the increasing number of situations of protracted conflict, efforts to redress conflict-related violations should be, at least in part, dealt with at the time, rather than waiting until the end of hostilities, so as to mitigate harm to victims and to correct belligerents’ behaviour in order to prevent recurrence.