Introduction
Seventy-five years on from the adoption of the Geneva Conventions, war continues to cause mass suffering to civilians and combatants alike. The International Committee of the Red Cross (ICRC) has found that there are currently over 100 ongoing conflicts, with an increasing number of them being protracted in that they last longer than five years and/or are post-conflict societies slipping back into violence.Footnote 1 This raises fundamental concerns over the ability of international and domestic law to alleviate the suffering of those caught up in armed conflict and, more problematically, the prospects for transitional justice to redress violations and prevent their recurrence. For some time now, international humanitarian law (IHL) has become increasingly intertwined with transitional justice and, in particular, its normative framework of human rights in addressing conflict-related atrocities.Footnote 2 This can be seen most recently in the United Nations (UN) Secretary-General's Guidance Note on Transitional Justice, in which transitional justice is unequivocally and unqualifiedly positioned alongside conflict prevention and peacebuilding as a “strategic policy tool” for societies fractured by conflict to “help build just and inclusive futures”.Footnote 3 Together, the two fields of IHL and transitional justice are framed by the UN as part of a continuum towards sustainable peace.Footnote 4
Given the legal basis of many of their norms, IHL and transitional justice also speak to the place of law in regulating violence and alleviating its consequences. The lingering duration and effects of contemporary armed conflict raise substantive challenges that require a more considered approach to the place of justice in the midst of hostilities. When should justice be pursued in protracted conflicts? Should victims wait for justice until peace is secured years or decades later? What is the impact of violence on stakeholder participation in justice efforts? When should justice issues be considered by those who engage in hostilities? This article adds to these debates by tackling the temporal place of both fields in protracted conflicts, interrogating their increasing overlaps, complementary intersections and even tensions. The article focuses in particular on the place and implications of time and the timing of legal interventions in such circumstances. The article argues that victims in war cannot wait until the end of fighting to seek redress – indeed, such delays amount to violations of victims’ right to an effective remedy and, more profoundly, fail to provide a safety valve to stop the continuation of violations or re-victimization of civilians and their communities.
The interconnectedness of time in IHL and transitional justice has been examined by others. For example, Policinski and Kuzmanovic point to the emergent policy in humanitarian organizations of moving beyond the binary of violence and peace to see the “triple nexus” between humanitarian action, development and peace as a continuum, given that the effects of prolonged violence become more severe over time.Footnote 5 While such a vision aims to find complementarity between these various humanitarian policy efforts, debates on justice are often neglected. The literature and practice of transitional justice has a similar aversion to doing justice in the midst of armed conflict. Frequently, transitional justice's role in negotiating post-conflict settlement is relegated to being a tool of conflict resolution so as to “translate violent conflict into a set of political and legal institutional structures that enable the same political struggles to take place less violently”.Footnote 6 As Salmón suggests, the relationship between IHL and transitional justice processes can be identified by two discrete points of time, the first being the outbreak of conflict, when the preventative role of IHL in averting violations is applicable, and the second being the end of hostilities, when transitional justice kicks in.Footnote 7
This article does not suggest that the frequently protracted nature of contemporary conflicts requires the expansion of IHL or transitional justice, or the development of new laws. Indeed, as Lewis suggests, such legalistic overreach risks giving the “illusion of more protection” and elides more effective existing protections under human rights law.Footnote 8 This article instead argues that nearly two decades since these initial works by Salmón and Bell, this temporal relationship has become more complex, with the pervasiveness of transitional justice and its normative status being juxtaposed by the proliferation and protracted nature of conflicts that strains IHL compliance. The binary nature of the traditional peace versus justice paradigm has given way to a normative recognition of their interdependence, articulated as requiring robust justice efforts in order to ensure long-term sustainable peace and avoid situations of protracted conflict.Footnote 9 Transitional justice does not offer a road map to travel from war to peace – like the conflicts and transitions themselves, it is a continual, at times contradictory, and complex struggle. At its minimum, transitional justice offers a language articulated in human rights law that can give procedural protection to vindicate conflict victims’ rights, enable those responsible to take ownership of their wrongdoing, remedy conflict's consequences and take efforts to prevent its repetition. At the same time, honesty and modesty dictate acknowledging that it is but one tool for dealing with the tip of the iceberg of violations; it is not a panacea for bad governance or generational harms caused by colonialism, historic discrimination and structural inequality that often drive conflict or cause it to reoccur.
With this dose of realism in mind, the present article suggests that transitional justice is increasingly important in situations of ongoing protracted conflict as one among several tools for tackling the consequences of violence, but for doing so within a rights-based framework. This is not to displace IHL, but rather to bridge some of the gaps left by a framework that focuses near-exclusively on belligerent behaviour, in order to better assert victims’ rights in pursuit of Grotius’ admonishment that “in war, peace [and justice] should always be kept in view”.Footnote 10 This article contributes to the debates on the intersection of the two fields by asserting the need for “provisional justice” as a key pathway to bridge the impunity gap that exists in protracted and ongoing conflicts. The article focuses in particular on three enquiries: the existing normative connections and operational overlaps between IHL and transitional justice; the temporal dimensions of justice and humanity in armed conflict; and bridging the continuing divide between the two fields. The first part begins by mapping out the normative and operational links between IHL and transitional justice. The second part articulates an alternate theoretical framework for marrying both fields, based on coinciding temporalities, conceptions of humanity as a common driving ideal, and notions of justice. As such, the article contrasts this with transitional justice's evolution beyond linear transitions to apply even where there are ongoing or, at best, “imperfect”, non-linear “steady-state” conflicts. The final part draws upon the emerging practice of justice efforts in ongoing contemporary armed conflicts to advance a proposed way forward based on a theory of provisional justice.
Normative connections and operational overlaps
The emergence of transitional justice has not directly altered IHL, as most of transitional justice's developments occurred after the 1977 Additional Protocols to the Geneva Conventions. Nonetheless, as transitional justice has materialized by degrees through human rights law, State practice reinforcing the two fields has served to nuance some of IHL's sharper edges. This is apparent in the evolution of the UN's lofty goals of peace and security no longer being limited to upholding and respecting IHL during conflict, but also requiring peacebuilding efforts to be firmly rooted in justice terms.Footnote 11 The UN Secretary-General's October 2023 Guidance Note on Transitional Justice aimed to further internalize this linkage within the strategy and operations of the UN as a “pragmatic human rights-based policy tool at the disposal of national stakeholders that is relevant to enhancing peace and security, human rights and accountability, and sustainable development”.Footnote 12 The UN Special Rapporteur on Truth, Justice, Reparations and Non-Recurrence has indicated that IHL and transitional justice are part of a peacebuilding–humanitarian–development continuum, which looks to support the UN's goals of peace and security through ending hostilities and restoring the rule of law.Footnote 13 There are a number of operational overlaps between the two fields that are relevant for this discussion.
Operational overlaps
Transitional justice and IHL are neither sui generis nor mutually exclusive. Bell describes IHL, along with human rights and international criminal law, as part of the international legal architecture that frames and “collectively informs the development of transitional justice”.Footnote 14 In reflecting on the mutual contributions of IHL and transitional justice, Salmón defines transitional justice as the attempt by societies to deal with the human rights violations committed during the conflict.Footnote 15 While there is not a universally accepted definition of transitional justice, nor is this the conventionally used definition, it is telling that Salmón's focus on “human rights” is somewhat at odds with others, such as Camins, who argue that applying this sort of human rights-based approach to the harms suffered in armed conflict, and in turn IHL, is ill-fitting.Footnote 16 De Greiff and other transitional justice scholars and practitioners similarly adopt a more pragmatic perspective with regard to ongoing justice post-conflict.Footnote 17 Nonetheless, it is argued here that human rights continues to influence the scope and relevance of IHL in the post-conflict phase by limiting it to punitive measures aimed at suppressing IHL violations through investigation and punishment of only those violations which rise to the level of serious breaches or war crimes.Footnote 18
Meanwhile, transitional justice itself encompasses more than criminal justice. Transitional justice is now understood as consisting of five pillars: truth, justice, reparations, guarantees of non-repetition, and (more recently) memorialization. Criminal investigations and trials continue to be an important part of transitional justice, but often, given the scale of violations in war, create evidentiary and capacity difficulties in seeing every perpetrator brought to court. The International Criminal Court (ICC) and domestic and hybrid courts remain key bodies in holding the most responsible perpetrators of international crimes to account,Footnote 19 but there is a rich range of mechanisms, processes and effective transitional justice ecosystems encompassing the scale and prevalence of harms caused by conflict that go beyond the courtroom. Here it is worth turning to discuss four of these that most closely intersect IHL and transitional justice beyond trials: truth-seeking, amnesties, reparations, and guarantees of non-repetition.Footnote 20
Truth recovery is a core mechanism of transitional justice, often framed as delivering on victims’ right to know what happened, why and by whom, as well as contributing to broader social and political reconciliation by raising public awareness of violations in the past.Footnote 21 Although much of transitional justice practice on truth has emerged from truth commissions, it has also been articulated as a “right” by regional human rights courts and normative best practices towards ending impunity.Footnote 22 This is not the entire picture, however, as IHL too has played a significant role in the development of the right to truth in transitional justice. For example, Additional Protocol I (AP I) stipulates that in cases of missing or dead persons, families have a “right to know” the fate of their relatives.Footnote 23 During the drafting of this provision, some delegates felt that there was a “basic need” for families to know the fate of their loved ones, but that this neither amounted to a “fundamental right”Footnote 24 nor endowed a legal entitlement to demand certain action from a government.Footnote 25 There has also been a proliferation of international commissions of inquiry that provide an external investigation into ongoing conflicts and mass atrocities and which are often mandated to examine violations of IHL as well as to recommend the establishment of transitional justice mechanisms, such as in the former Yugoslavia, Yemen and Ukraine.Footnote 26
One issue that is often overlooked in discussions on the right to truth is the obligation to investigate, identify and bury those killed that persists throughout ongoing conflicts and decades after the end of hostilities. The Inter-American Court of Human Rights (IACtHR) found, in dealing with the siege of the Palace of Justice during the armed conflict with the M-19 guerrillas in Colombia, that IHL continued to provide obligations of due diligence to ensure the “correct and adequate removal of corpses” of suspected guerrillas whose remains were disappeared.Footnote 27 Even in cases heard decades after a conflict, human rights and civil courts have revisited issues of compliance with IHL at the time of the civilian loss of life, pointing to non-compliance with the State force's manuals, notices and other regulations.Footnote 28 These IHL obligations on the right to truth during armed conflict are important in terms of transitional justice and reflect a strong convergence over time between the two fields. IHL has been invoked by truth commissions as a means to reflect the serious gravity of the violence and to “help to address the victims’ sense of hurt”, but through a more reconciliatory approach rather than a purely punitive one through criminal trials alone.Footnote 29
Linked to the pursuit of truth is the use of amnesties in post-conflict settings. Again, IHL is relevant here. The justification for conditional or partial amnesties on the basis of IHL has been an important part of facilitating truth and reconciliation processes and the recovery of remains.Footnote 30 Additional Protocol II (AP II) indicates that the broadest possible amnesty should be adopted at the end of hostilities in the interest of promoting peace.Footnote 31 South Africa's Constitutional Court notably held that its Truth and Reconciliation Commission's amnesty provision was not incompatible with international law.Footnote 32 However, nearly three decades on since the South African case, as human rights have become increasingly prominent in transitional justice, this broad tolerance of amnesties in transitional justice's early development has given way to a more nuanced reading of IHL's resort to amnesties to end hostilities in non-international armed conflicts (NIACs), framing the provision as conditional and limited.Footnote 33 Both AP II and customary IHL are interpreted now to preclude amnesties where such measures would prevent proper investigation and prosecution of alleged perpetrators of war crimes.Footnote 34 This understanding has been reaffirmed by various international criminal courts.Footnote 35
Domestic and regional human rights courts have similarly recognized that broad amnesties can violate the obligation to prosecute grave breaches. The Ugandan Supreme Court has underscored that its Amnesty Act, in light of the provisions of AP II, would not cover international crimes and was intended to cover participation in the conflict “in furtherance of war or rebellion”.Footnote 36 In so ruling, the Court allowed the trial against Lord's Resistance Army commander Thomas Kwoyelo to continue.Footnote 37 The bar on blanket amnesties for war crimes has been extended to other international crimes, including crimes against humanity, torture, genocide and other gross human rights violations by international and regional bodies.Footnote 38 Comparable findings by the IACtHR have held, in for instance the cases involving Peru, that amnesties which “eliminate responsibility” for serious violations of human rights are prohibited. Similarly, with respect to El Salvador's amnesty law, the IACtHR held that, while conditional or partial amnesties may sometimes be warranted to encourage peace, the AP II Article 6(5) “norm is not absolute” as against States’ obligation to investigate and prosecute war crimes and crimes against humanity.Footnote 39 The European Court of Human Rights (ECtHR) similarly concluded that there is a general trend in international law to view amnesties for international crimes as “unacceptable” due to their incompatibility with “unanimously recognised” obligations on States.Footnote 40
That said, the anti-impunity movement that characterized transitional justice efforts since the 1990s has not precluded or limited the use of amnesties outright.Footnote 41 For instance, Mallinder found that most amnesty laws required affirmative legislative annulment, which only Argentina and Uruguay have done.Footnote 42 Meanwhile, despite two adverse domestic court judgments finding that Brazil's amnesty law does not cover disappearances and ordering Brazil to set it aside, the law still remains in effect.Footnote 43 Similarly, negotiations around the Rome Statute of the ICC did not stipulate amnesty's outright prohibition under international criminal law.Footnote 44 Rather, State practice suggests that conditional amnesties remain an important political tool, particularly in the context of NIACs, in encouraging arms carriers to commit to a peace process while leveraging some form of accountability in return.Footnote 45 In this regard, IHL and transitional justice often work in conjunction to provide the legal basis both for imposing accountability for perpetrators and for conditional amnesties in post-conflict peace and justice practice, as seen in Colombia's Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP).Footnote 46 Likewise, it has been argued by some that the use of amnesties for Free Aceh Movement fighters was instrumental in the peace process in Aceh, Indonesia.Footnote 47
Still, domestic amnesty laws explicitly excluding alleged war crimes and other serious international crimes from their scope have proliferated.Footnote 48 Such jurisprudence and State practice in transitional justice suggests that while amnesties are still very much a part of peace efforts in NIACs, reflected in the 289 such laws that have been adopted between 1990 and 2016 alone, there is a ceiling of what amnesties are permitted to cover under international law.Footnote 49 Some form of clemency may invariably be required to further transitional justice's central goal of reconciliation in divided post-conflict societies by encouraging the return of former combatants to civilian life.Footnote 50 This often requires some quid pro quo by fighters who have committed violations to engage in truth and reconciliation processes, alongside red lines to exclude those responsible for war crimes and other grave international crimes from eligibility for any form of amnesties.Footnote 51 However, such a transactional approach to peace, foreclosing all other investigative mechanisms that could lead to prosecution or civil remedy, has recently been challenged by victims in Northern Ireland domestic courts and simultaneously by the Irish government in an inter-State case against the United Kingdom's Legacy Act 2023Footnote 52 that provides a conditional amnesty for those involved in murder, torture and other violations during the Troubles.Footnote 53 In such cases, the passage of time has meant that amnesties frustrate protracted justice efforts, leaving victims feeling like the government is waiting for them to die.
The overlapping tensions and complementarities between IHL and transitional justice in the specific pursuit of justice and peace are thus apparent in the context of granting amnesties versus punishment. Some argue that IHL in fact provides the flexibility and legal basis for transitional justice processes to balance victims’ right to justice with other important rights, including the right to peace.Footnote 54 The relevance of IHL in the application of conditional or limited amnesties when drawn upon by truth commissions or other transitional justice efforts is often inherently linked to temporal dimensions of post-conflict justice, as a means to an archival recording of a broader “truth” about the conflict (i.e., designating certain acts as breaches of IHL and thus war crimes, even if not immediately prosecutable) in pursuit of alternative justice or even postponed criminal justice.Footnote 55
With regards to reparations, as a victim-centred range of measures for acknowledging and alleviating harm, they often intersect with human rights and IHL violations.Footnote 56 This is apparent from the 2005 UN Basic PrinciplesFootnote 57 invoking both legal regimes as the basis for recognizing the right of victims to effective remedy and reparations. Domestic reparation programmes often make reference to IHL as the basis for victim eligibility, ranging from victims of “serious breaches” or “violations” of IHLFootnote 58 to victims of “war”Footnote 59 or (in the case of Northern Ireland) “the Troubles”,Footnote 60 or simply by reference to “civilians”.Footnote 61 The diversity of language on reparation entitlement is hardly surprising when IHL does not provide an obligation or right to reparations for individual victims.Footnote 62 Instead, the use of such language suggests the need to grasp at some international legal normative framework to justify claims to be brought for the violence wrought in armed conflict. Even the requirements of a victim's claim of suffering harm as a result of a serious breach of IHL are not closely analyzed, reflecting a more rhetorical, justificatory purpose based on the seriousness of the victim's suffering rather than a strict legal interpretation of distinction, proportionality and military necessity in such claims.
Some reparations programmes do not invoke IHL at all, instead basing victims’ entitlement to redress on the basis of human rights violations. In Mali, for example, such claims are tied to “crises” which include “rebellions, coups d’état, inter- or intra-community conflicts and political violence” since 1960.Footnote 63 As such, the application of reparations in transitional justice framed as an element of a political settlement suggests a more flexible use of legal terminology rather than a substantive legal right to redress for civilians. It may also reflect that the passage of time prohibits a strict legal analysis of the applicability of IHL at the time of the violation. Such a usage of IHL to situate the justification of claims or delivery of reparations poses a paradox in the extent to which victims can bring claims and articulate their rights to shape such redress to their needs.Footnote 64 Indeed, practical jurisdictional limits in human rights law and the primarily domestic focus of transitional justice have often meant that victims of military operations (i.e., collateral damage) and occupations associated with, for instance, the War on Terror have been left without any forum for redress against those factually, if not legally, responsible.
Finally, guarantees of non-recurrence present clear overlaps with the peacebuilding and preventive dimension of IHL. It is widely accepted that guarantees of non-recurrence are necessary to prevent the recurrence of conflict, which is often driven by inequality and poverty that often go beyond the capacity of other transitional justice measures.Footnote 65 This is often a neglected area of study in transitional justice, despite the 2005 UN Basic Principles outlining an extensive range of good practices that intersect with IHL, such as ensuring effective civilian oversight of the military, promoting codes of conduct for the military, and supporting mechanisms for “preventing and monitoring social conflicts and their resolution”.Footnote 66 Guarantees of non-recurrence require, inter alia, public commitments of transformation of military and political culture and practice by actors responsible for violations as well as concrete institutional reforms to prevent such violations reoccurring in the future, including continual IHL education for society and training for military and security forces.Footnote 67 In transitional justice practice these issues often occur in the post-conflict context and are regularly recommended as part of final truth commission reports or as part of peace agreements, as a means to tackle the “root causes” of violence.Footnote 68
Normative connections
Beyond these operational mechanisms and processes, there are critical accounts of the overlapping hegemonic international legal order which encompasses both IHL and transitional justice. At the turn of the century, Teitel and others warned against the rise of transitional justice and the invocation of IHL as a legal basis for legitimizing international military interventions in situations such as Kosovo, the War on Terror and Libya. While this ostensibly reflected a growing universalization of norms, it also diminished the position of those trying to challenge States’ use of violence.Footnote 69 In particular, transitional justice was no longer limited to discrete transitions from authoritarianism to liberal democracy or from war to peace, but could be applied to the “steady-state” of “heightened political instability and violence”; in this environment, transitional justice was no longer exceptional and instead became the paradigm for rule of law reconstruction.Footnote 70
Similarly, IHL and transitional justice have at times been used interchangeably as normative frameworks to justify exceptions to human rights law or each other, such as during the occupation of Iraq, to bolster the hegemony of the Western coalition.Footnote 71 The level of constitutional intervention in Iraq by coalition forces may have violated the Hague Regulations, as well as principles of transitional justice around local ownership for sustainable justice efforts.Footnote 72 A cynical parallel could also be drawn with Russian occupation of Ukrainian territory, where unlawful referenda have been carried out and the accompanying forced passportization of Ukrainian civilians means that those who refuse Russian legal identity are denied access to health care, education, social security benefits and the ability to bring compensation claims.Footnote 73
In human rights law there is often an uncritical use of IHL as including the same secondary obligations to remedy as there are for gross violations of human rights. This stems from the language of the 2005 UN Basic Principles, which incorporate the right to remedy and reparations as applying equally to gross violations of human rights and “serious breaches” of IHL. Some drafting delegates disagreed with this formulation of the equivalence of the right existing in both fields.Footnote 74 In part, such tensions may reflect the legal character of IHL, wherein the framework for protection of victims is directed at restraining those who wield force rather than necessarily providing those individuals affected with legal agency or enforceable rights. In contrast, human rights law is structured around vindicating the rights and dignity of individuals and groups. In effect, IHL treats individual and collective victims as objects of the legal framework of protection, rather than subjects with agency, identity, dignity and rights.Footnote 75 Human rights law as the lex specialis development of the right to remedy can be complementary, not coextensive, to IHL, especially when dealing not just with State violations but also those of non-State groups.Footnote 76
A pivotal development in transitional justice has been an increased emphasis on transitional justice from below.Footnote 77 “Justice from below” involves an “on the ground” perspective of communities affected by conflict that shifts the “gaze” below that of official institutions to a resistant, grassroots mobilization against the hegemony of those in power by shaping justice to the needs of those affected.Footnote 78 As such it implies a move beyond the State-centric legal framing and top-down design of which types of violence must be addressed and through which mechanisms, and gives space and recognition to those directly affected to allow them to mediate how best to resolve such harms, including through informal justice processes or memorialization.Footnote 79 At its most effective, this involves victims collectively mobilizing and articulating their rights to shape justice processes to their needs through effective participation in the design, implementation and delivery of justice mechanisms.Footnote 80 This grassroots transitional justice movement may suggest a challenge to IHL as the preferred legal lexicon for ascertaining eligibility and victimhood, as well as an opportunity to go beyond trials as the main justice mechanism. This article will return to discuss this perspective in depth in the final section. Before this, the next section turns to the temporal dimensions of justice and humanity that permeate both IHL and transitional justice.
The temporal dimensions of justice and humanity in armed conflict
Temporal conundra in transitional justice and IHL
Time in law is often perceived as linear and iterative, which reflects our modern understanding as one that is characterized as “motion, change, mortality, and progress”.Footnote 81 Temporality as the conceptual or functional element of time has been a critical lens through which to consider wider changes over time in legal institutions and rules as well as critical non-linear perspectives of law. Conceptualizing justice as “post-conflict” and thereby setting temporal boundaries on the law is often a “political act” that fixes the official discourse on relegating violence of the past to the status of a temporary aberration rather than an “ongoing structural concern”.Footnote 82 Applying such a critical temporal lens to IHL and transitional justice helps to discern the continuing gaps that confound both fields in situations of protracted conflict. The linear understanding of time that dominates Western society has implications for war and post-war justice, where war is assumed to be a temporary exceptional period that will be followed by peacetime. As Dudziak argues, war has the power to frame history and, in turn, legal responses to itself.Footnote 83
Time is a point of reference in IHL. As a framing device, Kleffner argues that time quintessentially dictates the applicability and the “entry point” for legal analysis of IHL.Footnote 84 IHL is given a strict temporal legal position where it applies only during the exceptional circumstances of armed conflict, not before or after.Footnote 85 In contrast, human rights applies at all times.Footnote 86 Increasingly, so too is transitional justice invoked before the end of hostilities where there is resistance to sequencing or choreographing justice mechanisms to fit technocratic approaches to resolving conflict. Transitional justice is a non-linear, “organic, multidimensional process that admits of a high degree of uncertainty in what is done and what ends are pursued”.Footnote 87 In contrast, the temporal bookends of IHL create its own boundaries and limitations of scope.
Geneva Convention IV is the only IHL text that includes “time” in its title.Footnote 88 Jean Pictet, in his Commentary on the Convention, notes that the title failed to convey the limited protection afforded to civilians in wartime, which is primarily a compromise to protect them against “arbitrary action by the enemy” rather than the dangers of military operations.Footnote 89 Indeed, this minimum floor of protection afforded by IHL often leaves civilians without any recourse to justice or redress. Recent scholarship has underscored the value of historical, nostalgia-free analysis of IHL through time,Footnote 90 and the need to balance a grounded and dispassionate engagement with IHL despite the contemporary politicized nature of how the law is analyzed in wartime.Footnote 91 Baets finds that the customary nature of IHL roots its temporal jurisdiction backwards; this is then further expanded by the use of certain “self-evident” principles such as humanity to morally guide conduct where the law does not.Footnote 92 However, despite a steady addition of new weapons treaties, such as the Convention on Certain Conventional Weapons, as well as the development of international criminal law, there has been “very little to no development [of IHL] by either treaty or custom since 1977”, with the field relying instead on the “slow pace” of customary law.Footnote 93 This gives a degree of continuity and relevance to IHL.
More critically, Droege and Giorgou contend that IHL is neither linear nor uniform, given the plurality of actors involved, and that the almost static nature of the field can enable belligerents to apply IHL in a regressive or distorted manner.Footnote 94 This is reflected in how temporality is often stretched to encompass “episodic” violence in order to make it sufficiently intense for the purposes of a NIAC, such as in military operations by Western States in the Middle East and the Sahel.Footnote 95 This suggests a cumulative approach in assessing intensity which involves violence by several organized armed groups over a “geographical and temporal continuum”, such as with Al-Qaeda and ISIS.Footnote 96 Ultimately it means that “wartime” or the temporal dimensions of armed conflict are extended to all times, anywhere and everywhere, making violence appear more pervasive and legally justifiable. The scope and scale of the War on Terror, for instance, continue to reinforce this, despite the deaths of over 434,000 civilians directly and over 3.6 million indirectly.Footnote 97 Yet there has been little effort to comprehensively deal with this temporal expansion of perpetual “war” by the War on Terror in terms of transitional justice, as we continue to see transnational multi-actor conflict across the Middle East.
By seeing war as an aberration of the idealized version of law, such a perspective may encourage a “culture of irresponsibility” where continual violence “ruptures … the usual legal order”.Footnote 98 Castillejo-Cuéllar argues that law itself renders certain violence “intelligible” and deserving of justice and redress, while at the same time making “unintelligible” historical and structural violence that is the root of such “intelligible” violence in the first place.Footnote 99 This is apparent in how the international community reifies certain harms as amounting to international crimes or jus cogens and episodic deviations, while sidelining the mundane or banalFootnote 100 daily and continuing violations that cause a “slow death”Footnote 101 to many civilians in conflict, such as damaged water infrastructure that causes cholera outbreaks months later or the destruction of health-care facilities that causes neonatal babies to suffocate weeks after an air strike.
In the same way, the relentless nature of violence in armed conflict can overwhelm justice responses by delaying investigations for years and by allowing those responsible for violations to weaponize time in order “to disempower and disenfranchise” those affected.Footnote 102 This is exacerbated by the increasing use of algorithmic input through machine learning analysis of intelligence and social media in targeting decisions, increasing the speed at which proportionality calculations (collateral damage estimates) for attacks can be carried out in urban areas. This is most immediately apparent in the bombardment of Gaza by Israel, with a hundred targets a day, that has witnessed tens of thousands of civilians being killed in only a few months.Footnote 103 While the speed of violence is being accelerated, justice efforts are neither being catalyzed to the same degree nor seeing any of the investment in technology that artificial intelligence (AI) integration in the military is witnessing. The temporal delay of transitional justice means that the gap between the harm caused during conflict and the eventual redress of that harm is often measured not in years but in “generations of time”.Footnote 104 This AI accountability gap reflects the power dynamics of those wielding violence and those subjected to it, making warfare and justice increasingly remote from the battlefield and the courtroom.
Added to this is the fact that certain violence can be “left and locked” in the past while other deeper violence persists, bringing into question the “post-conflict” nature of any transition from war and implicating incidents of violence as continuities rather than exceptional ruptures as transitional justice frames.Footnote 105 Dudai and Cohen suggest that, in such circumstances, “dealing with the past”, rather than transitional justice in protracted conflict, is a more useful framing for encouraging greater societal and cultural engagement with violations committed and harm suffered by both sides, which in turn can be more productive in conflict transformation.Footnote 106 This, they argue, may lead to the foundation of more substantive institutions for doing justice in the future.Footnote 107 The final section of this article argues in the alternative for some provisional justice in the short term that speaks to humanity and justice beyond raising inter-communal awareness of suffering for justice in the long term. Before turning to that discussion, the next subsection unpacks the notions of humanity and justice, as they may help to navigate the temporal complexities alluded to thus far.
Temporality, humanity and justice
Elaborating on the two concepts of humanity and justice may be helpful for navigating the temporal conundra for both IHL and transitional justice. Humanity as an “essential” or “universal” principle,Footnote 108 a “capstone of the other constraining principles”,Footnote 109 is the “driving force” of IHL in that there is a moral undercurrent motivating legal intervention both to prevent and to redress the harm caused by armed conflict.Footnote 110 Mégret suggests that modern IHL theories speak to its evolving nature in shifting away from the “laws of war” nomenclature to “humanitarian” concerns, and reflect the increasing influence of human rights and international criminal law as a calling to a higher normative commitment of humanity which goes beyond the obligations owed to other States.Footnote 111 As such, humanity is the invocation of the commonality of human experience and moral conscience that is reflected in the Martens Clause.Footnote 112 Humanity is also invoked in transitional justice as a means to establish common values between affected communities and those responsible for violence.Footnote 113 It has been resorted to in rejecting amnesties for crimes against humanity, as such crimes not only violate individuals’ rights but “offend humanity as a whole”.Footnote 114 That said, the influence of human rights law, constitutional law and conflict resolution on the field of transitional justice means that notions of human dignityFootnote 115 and, in particular, reconciliation have a stronger sway.Footnote 116
For its part, transitional “justice” has been pursued in the midst of ongoing conflicts, to varying degrees of success. One of the fundamental challenges in ongoing and protracted conflict is the lack of effective or legitimate authority over the whole of the country due to prevailing insecurity, ongoing hostilities and even armed groups controlling territory. Indeed, Winters argues that in situations of ongoing conflict, transitional justice can be legitimate as a “reasonable political order” to account for violations by the State, if not as a means to achieve wholesale “effective popular attitudinal change” in transitioning to peace and democracy.Footnote 117 Tabak is less convinced by such political ordering, where there is often a “false dichotomy” between conflict and post-conflict, with violence and insecurity continuing at the end of hostilities for women in particular.Footnote 118
Indeed, efforts to do justice in the midst of hostilities often involve investigations by external actors, such as the ICC.Footnote 119 Sarkin argues that transitional justice has a role in halting violations that requires investigation and condemnation at the time, not years later when the violence has abated or ended.Footnote 120 While there are inherent risks to those carrying out such investigations and prosecutions, their actual deterrent effect in forestalling further conflict is inconclusive. Nonetheless, transitional justice in such circumstances is unlikely to benefit those most affected without a shift toward an end to hostilities and sustainable peace, as external approaches often suffer from legitimacy crises and long-term engagement.Footnote 121
As an example, the transitional justice programme in Colombia, arguably one of the largest in the world, has been struggling to deliver justice to millions of victims of a range of ongoing conflicts. This has evolved over time, reflecting stability and peace in some parts of the country and chronic insecurity and violence in others, to the extent that in recent years the reparations body, Unity for Victims (Unidad para las Víctimas), has been adding about 10,000 new applicants each month.Footnote 122 Emerging research from the efforts of the JEP and other transitional justice mechanisms to operate in this “violent peace” suggests that it has a detrimental impact on victims and former fighters’ participation, which in turn can undermine the legitimacy of such efforts and the broader goals of sustainable peace and trust-building.Footnote 123
There are other shortcomings to “doing” transitional justice in the midst of violence. One recurrent theme is the gendered nature of such justice. In Colombia, Tabak speaks of the “superficial” nature of efforts to protect women's rights and include them in transitional justice processes, which ultimately fail to be gender-inclusive and to reflect the “multiple gendered roles that both men and women play in conflict and post-conflict”.Footnote 124 Recent efforts at including women and girls in the post-2016 peace agreement comprehensive justice framework have struggled to deal with sexual and gender-based violence as well as to recognize intersecting identities, such as female fighters as victims.Footnote 125 In a study by one of the present authors on reparation practices in the early years of the Troubles, research found systemic bias and discrimination against women and girls, with the families of women and girls who were killed receiving far lower compensation than the families of men of the same age.Footnote 126
Beyond IHL and transitional justice, jus post bellum theory within the “just peace” field has attempted to articulate a more expansive reading of “justice” to fill the gap left by “incomplete” IHL with regards to post-conflict justice.Footnote 127 Jus post bellum has also been justified as a response to the “elastic” nature of transitional justice,Footnote 128 which may leave it inept to address inter-State conflicts or navigate post-conflict settlements where justice issues may need to be temporarily parked to secure immediate peace. In discussing the links between these three fields, Freeman and Djukic suggest that, in contrast to transitional justice's more traditional focus on individual rights and social justice, jus post bellum provides a specific legal framework for governing peace settlements and post-conflict occupation beyond the application of IHL during hostilities.Footnote 129 To the extent that jus post bellum seeks to “suppl[y] norms and principles applicable in the aftermath of armed conflict in periods of transition from conflict to peace, with a view to regulate how one gets from ‘here’ to ‘there’”,Footnote 130 there is an inherent overlap and normative “justice” element to this discussion. Rules and norms governing peacemaking after conflict are necessary extensions of the interweaving of conflict, intervention, post-conflict peace, justice etc.Footnote 131 Transitional justice, traditionally positioned as facilitating the transition from authoritarianism towards a more liberal democratic dispensation, is inept at dealing with situations of protracted conflict and fragile States.Footnote 132 For IHL, meanwhile, beyond protecting civilians and persons hors de combat from the ravages of war and the hope for peaceful resolution, the governance of a country after a conflict and its democratization are of little concern.Footnote 133 Hence, jus post bellum may in temporal terms appear to be a useful bridge to help stabilize the end of hostilities and provide the peaceful space for transitional justice to emerge,Footnote 134 such as allowing civil society to form and victims to mobilize and demand justice.
The realities of contemporary transitions from protracted conflicts and fragile States, in which victims and society cannot wait for just and sustainable peace to be attained and violence has completely ceased before justice may be rendered, necessitate moving beyond categorizing war and peace into manageably discrete phases.Footnote 135 Indeed, Freeman and Djukic suggest that the prevalence of low-intensity violence after the end of hostilities would complicate the application of jus post bellum as the bridge toward transitional justice without complete peace.Footnote 136 However, this bifurcation and sequencing of peace and justice is itself too formulaic. Instead, this article argues, there is a core need for justice to be a fundamental normative element of humanity when tackling ongoing and protracted conflicts. Such a normative commitment is the key to preventing the recurrence of violence through a rights-based approach to institutional reforms addressing the root causes of structural injustice, and to achieving a measure of accountability for conflict's atrocities, in that for rules to be effectively complied with, they need to allow some form of real-time remedy to those affected. It is through this normative commitment, rather than using jus post bellum as a temporal bridge, that IHL and transitional justice may be reconciled to bridge the continuing divide in situations of ongoing and protracted conflict in fragility.
International law has witnessed a turn away from a solely “State-centric” approach in the creation of law and the possession of rights vis-à-vis other States, to a more humanized oneFootnote 137 which recognizes the rights of individuals and groups along with their right to a remedy where those rights are violated.Footnote 138 Ish-Shalom has declared the contemporary position as an era of “responsibility” rather than simply the sovereignty of States.Footnote 139 This is demonstrated by transitional justice increasingly dealing with the responsibility of non-State actors such as armed groups and corporations.Footnote 140 Yet, while responsibility for the consequences of war has been construed in the extreme through individual criminal liability for war crimes and other international crimes, this often reflects only a small proportion of the overall loss and damage caused in armed conflict. For instance, for the conflict in Ituri in the eastern Democratic Republic of the Congo (DRC) in the early 2000s, four individuals from local militias were indicted for war crimes and crimes against humanity by the ICC, but only three of these (Lubanga, Katanga and Ntaganda) were convicted, and only for crimes based in specific locales and on a single day, reflecting very reductive temporalities of justice. Even in these high-profile cases, there were calls to temporarily suspend or prevent the arrest of Ntaganda in order to avoid escalating the conflict in the eastern DRC.Footnote 141 Even with Ntaganda's conviction and Uganda found liable by the International Court of Justice (ICJ) for $325 million for its involvement in the conflict, violence continues in the eastern DRC. Despite the common values of humanity and justice in IHL and transitional justice that temporarily transcend the war/peace divide, therefore, there remains a continuing divide between the two fields in dealing with protracted conflicts. The following section of this article explores ways to bridge this gap.
Bridging the continuing divide: Victims, prevention and provisional justice
A significant continuing divide between IHL and transitional justice relates to the “lawful” harms caused by military operations that result in death, serious injury and/or property or environmental damage. “Lawful” harms are the incidental losses, injuries or damages caused to civilians and persons hors de combat as a result of military operations that were carried out in a discriminate and proportionate manner (or, colloquially, “collateral damage”), such as civilians killed in an air strike targeting a high-value enemy commander. Omitting these harms as violations has implications for which individuals and groups are seen as victims deserving of justice.
Transitional justice is fundamentally victim-centred, and only exists as a field due to the struggle against impunity by victims and their allies.Footnote 142 The notion of victimhood and the international normative framework that has developed around it has helped to articulate the obligations of States and other responsible actors in remedying mass atrocities. However, to be eligible for measures like reparations, the violations have to fall within legally recognized and categorized harms caused by certain wrongdoing in order for those affected to be accepted as victims.Footnote 143 To some extent this can be extended to injured or killed soldiers in State armed forces, who are often left outside of such remedial efforts and their next of kin left to the mercy of pension entitlements.Footnote 144 Such constructs of eligibility of victimhood and deservedness of justice reveal transitional justice as an inherently selective and political process, which, as Nagy notes, often constructs violations narrowly to the “exclusion of structural and gender-based violence”; this in turn results in the “privileging of legal responses which are at times detrimentally abstracted from lived realities”.Footnote 145 Perhaps, over fifteen years on from Nagy's critique, transitional justice is slowly trying to tackle these issues, and some progress can be seen even in ongoing and protracted conflicts, such as in the reparation efforts in Colombia and Ukraine.
IHL has no comparable language for such subjects as victims, as all are objects of protection rather than agents or rights holders.Footnote 146 The rubric of victimhood under IHL in Additional Protocols I and II covers both civilian and military victims (persons hors de combat), but does not articulate their protections in terms of legal entitlements for when they are harmed. Instead, IHL is more preventative in mitigating for their protection and providing assistance to meet their humanitarian needs.Footnote 147 The vernacular of civilian protection in IHL can be a paper shield, dispensed with in favour of the convenience of military necessity, where military advantage trumps the killing of dozens, even hundreds, of civilians. Under IHL, civilian harm is prima facie caused by belligerents’ actions, but IHL does not provide legal accountability for such collateral damage if deemed proportionate and necessary to achieve military objectives. This is apparent in Ukraine, Sudan and Gaza, where high-intensity fighting in urban areas and the use of explosive weapons has resulted in the deaths of tens of thousands of civilians in the past year. Taking transitional justice and IHL together in such circumstances, and considering the increasing burden of time in protracted conflicts, we are left with a chasm of injustice for those civilians killed and maimed in military operations that do not amount to serious or grave breaches of IHL, much less war crimes.
Despite this continuing gap between the two fields, there is emerging practice that can help to bridge the void. In the absence of either field dealing squarely with ongoing violations in armed conflict, some form of justice is required to acknowledge and alleviate the human condition experienced in conflict. The nascent practice in this area indicates a cross-fertilization of the two fields into what one could term generally as “provisional justice”, in that it has a flavour of transitional justice but is not a full accounting because of the continuing violent circumstances. This section focuses on three emerging aspects of provisional justice: prevention, mitigation, and justice efforts.
Prevention of violations, a common concern of both IHL and transitional justice, is the policy focus of many humanitarian organizations through a dynamic and responsive engagement with armed actors during conflict. For instance, the ICRC and Geneva Call engage with armed groups to promote internalizing IHL into their codes of conduct and regulations, and through efforts like the deeds of commitment to respect IHL and prevent violations.Footnote 148 This complements more condemnatory actions in ongoing armed conflicts such as investigations, publicly condemning bad behaviour, and the sanctions on actors or parties to conflict that are the common practice of UN commissions of inquiry and the UN Security Council.Footnote 149 These can be important in bringing visibility to harm caused by military operations as well as in encouraging those responsible not to repeat such harm, but they are not always effectively implemented or consistently monitored in order to generate respect for IHLFootnote 150 or address broader justice concerns over redressing victims’ harm.Footnote 151
Open-source intelligence (OSINT) has in many ways opened up and democratized publicizing information in wartime as a tool for prevention of repetition.Footnote 152 At the same time, however, it is subject to manipulation and can be a source of incitement to further violence; this occurred in the case of the Al-Ahli hospital in Gaza in October 2023, when an apparent misfired Hamas rocket that caused the deaths of a number of civilians was initially blamed on an Israeli air strike and claimed to have killed 500 civilians, only for subsequent verified OSINT analysis to dispute both the death toll and the source of the munition.Footnote 153 While these efforts to document and condemn harm during armed conflict can complement victims’ efforts to obtain redress, they can also risk recrimination, especially given their external, distant and international source. The experience from transitional justice is that such externally driven efforts at prevention have to be internalized in the socio-political culture in order to avoid repetition.
One approach to changing this culture of practice can be seen in the increasing efforts to mitigate civilian harm by belligerents as a by-product of their “strategic self-interest” in “winning hearts and minds” in order to deter the civilian population from turning to support the enemy.Footnote 154 In August 2022, the US Department of Defence released its Civilian Harm Mitigation and Response Action Plan, which justifies itself on the basis that civilian protection is a “strategic priority” and a “moral imperative” of the US military and is required to mitigate and respond to civilian harm in the interests of “mission effectiveness”, “professionalism” and “institutional values”. This includes, inter alia, condolence payments as ex gratia compensation to those affected.Footnote 155 Such practices are framed as going beyond IHL, which offers no avenue to redress civilian harm, and so these mitigation strategies when implemented are intended to “strengthen adherence to the principles of proportionality, precaution and distinction”.Footnote 156
Adding a cost value to killing or injuring civilians in proportionality calculations could run counter to the humanitarian concern of protecting civilians in IHL. There is also a risk of creating a culture of “pay to violate” the rights of civilians with such an approach. The real value of such an approach is not in the cost of condolence payments, but in changing the culture of practice within military institutions to reflect and learn from the harms caused to civilians so as to prevent their repetition. There have similarly been emerging efforts to encourage non-State armed groups to comply with IHL norms through engaging with transitional justice mechanisms or at least informal redress to affected civilians during hostilities.Footnote 157
Such practices are a welcome step in bridging the temporal divide between civilians being harmed in military operations and transitional justice mechanisms being set up. However, these processes need to be human rights-compliant so as to ensure their effectiveness and transparency. US and Saudi practices in Yemen have been criticized for their opaqueness and the use of waivers, where paying money to impoverished victims forecloses any future rights to an investigation, truth or reparations.Footnote 158 Although belligerents may need such legal reassurances so that condolence payments do not establish legal liability, those payments inadequately discharge the obligation to uphold victims’ right to a remedy.Footnote 159 They are also at the discretion of the belligerents and are not grounded in recognizing the rights of victims or being shaped from bottom-up input. While mitigation as a means of improving future practice is to be welcomed, there are obvious dangers in diluting the rights-based language and terminology used to protect civilians and legally vindicate their harms in armed conflict as a hegemonic means of depriving such human beings of their rights.
Issues of mitigation and prevention could be bridged under the rubric of humanity insofar as belligerents should, as a matter of moral responsibility to universally respect humanity, be responsive to the loss of civilians in war, especially where they factually cause the deaths of those civilians. Transitional justice efforts during the course of ongoing or protracted conflicts in situations of fragility may be a more effective hook in this regard, so long as such justice efforts during war do not bar the future claims of victims – but this nonetheless only temporarily alleviates their suffering.
The final aspect of provisional justice is the conceptual place of justice and victims’ rights in ongoing or protracted armed conflicts. There have been a number of domestic prosecutions under the principle of universal jurisdiction, such as in the recent trials in Germany for war crimes committed in Syria. Such use of strategic litigation driven by civil society reflects justice “from below” in ongoing conflict, with the aim of combating impunity for war crimes and preventing their recurrence.Footnote 160 The ICC has also intervened in several ongoing conflicts, even where it has been criticized by some for undermining peace efforts or at least legitimizing the State's military operations,Footnote 161 such as in Libya, where a number of suspects were killed in fighting (Gaddafi, Al-Tuhamy, Al-Werfalli); in Uganda; and currently in Ukraine, Sudan and Israel/Palestine. There have also been a range of external fora that have been tackling ongoing violations, such as the ICJ, the Permanent Court of Arbitration and the ECtHR in relation to Russia's invasion of Ukraine. These are not speedy processes, but they can externally shape any post-conflict settlement. Furthermore, there are other supranational mechanisms established by the UN and regional bodies – such as the International, Impartial and Independent Mechanism for Syria, the Independent Investigative Mechanism for Myanmar, and the Registers of Damage for the Israeli Wall and Ukrainian conflict – that document the harm caused to civilians in order to support any future criminal investigations and reparation programmes. To say, therefore, that there is no justice in war without peace neglects the efforts of those affected to find some legal forum to hear their claims beyond the State. While the struggle for justice in conflict continues, there is some hope; for victims, however, these efforts take years, even decades. Such justice efforts must therefore be mindful of narrowing this temporal gap through, for instance, greater support for international solidarity networks, engendering a bottom-up approach and local ownership, and leveraging the use of technology such as OSINT and AI data analysis to help corroborate victims’ claims and reduce their evidential burden.
Conclusion
This article has tried to tackle the temporal overlaps between the operation of IHL and transitional justice during and after armed conflicts, and the gap that remains between the two fields in situations of ongoing or protracted conflict in fragile States. Time is a useful critical lens for analyzing the two fields and for appreciating that victims do not have the luxury of waiting for peace in order to seek justice and the non-repetition of their victimization. The article has focused on the pervasive nature of violence in situations of protracted conflict, in which justice is often pushed aside until there is “peace”, or at least low levels of fighting, before victims are able to seek justice. However, the nature of human memory and the demand for justice to speak out for those who have suffered loss and continue to live with the consequences of war do not fade with time. Past violations and their seeds for future ones need to be recognized and kept at the forefront of international law's collective conscience, just as the ongoing atrocities committed in Israel and Gaza remind us that claims before the UN for redress for the Nabka/1948 war are still outstanding and hundreds of thousands remain intergenerationally displaced. Conflict-related harm reverberates across the everyday lives of victims, their families and their communities. As the father of one of the children killed in a loyalist massacre of civilians in Belfast in 1992 said when his wife died shortly thereafter of a broken heart, “the bullets that killed James didn't just travel in distance, they travelled in time. Some of those bullets never stop travelling.”Footnote 162
This article has argued that a normative commitment to victims’ rights and justice should be instilled as a fundamental element of the core principle of humanity that is the driving force of IHL. In attempting to bridge the continuing divide between IHL and transitional justice, the article has mapped out some of the provisional justice efforts to respond to civilian harm during hostilities. Inevitably, scholars and practitioners have to acknowledge that wars cause immeasurable loss and suffering to human beings as “lawful” harms. Recognizing this, the question must be asked: should the arc of law bend to recognize the need to do justice for the lawful harm caused to enemies and civilians alike, in the interests of collective justice, reconciliation, and sustainable and just peace? Or should the performative nature of law continue to put a legitimizing, humane face on the brutality of war?Footnote 163
IHL is the floor of protection for civilians in war. Humanity and justice as fundamental principles of IHL and transitional justice should impel both fields to strive for a higher formulation of the law that better protects and vindicates the rights of civilians. Engaging critically with the law is a means to get upstream of these issues in the flow of time, so as to avert the downriver consequences of future civilians suffering in armed conflict.
