Challenges Of Transitional Justice In Ongoing Conflict
I. Introduction
Transitional justice aims to address human rights abuses and promote accountability after conflict or authoritarian rule. However, implementing transitional justice during ongoing conflicts presents unique challenges that can undermine justice efforts and peacebuilding. These challenges include:
Security risks and instability
Political resistance and lack of will
Fragmented authority and competing powers
Victim and witness protection difficulties
Limited institutional capacity
Risk of exacerbating conflict
II. Major Challenges Explained with Case Law
Challenge 1: Security and Access Constraints
Explanation:
Ongoing armed conflict limits safe access to affected areas, making evidence collection, witness testimony, and victim participation difficult.
Case: The Democratic Republic of Congo (DRC) — ICC Prosecutor v. Bosco Ntaganda
Background: Ntaganda was indicted by the ICC while conflict continued in eastern DRC.
Challenges faced: ICC investigators struggled to safely access crime scenes and protect witnesses amid ongoing violence. Witness intimidation was rampant.
Legal developments: The ICC issued special protective measures for witnesses, but limited access delayed evidence gathering and prosecutions.
Court rulings: The ICC Trial Chamber recognized the security constraints but emphasized the need to proceed while ensuring witness safety.
Outcome: Ntaganda was convicted in 2019, but the process was prolonged due to conflict conditions.
Lesson: Security instability hampers evidence collection and jeopardizes victim and witness safety, complicating justice delivery during ongoing conflict.
Challenge 2: Political Resistance and Lack of Cooperation
Explanation:
Parties to ongoing conflicts may resist transitional justice initiatives fearing loss of power or prosecution.
Case: Sudan — ICC Prosecutor v. Omar al-Bashir
Context: Al-Bashir, Sudan’s president during the Darfur conflict, was indicted by the ICC for genocide and war crimes.
Challenges: The Sudanese government refused to cooperate, denying ICC access and arrest warrants. The government continued military operations during indictment.
Legal rulings: ICC reaffirmed jurisdiction and issued multiple arrest warrants but lacked enforcement mechanisms without state cooperation.
Impact: Political resistance prevented timely justice; conflict persisted, undermining transitional justice goals.
Lesson: Lack of political will and state cooperation can stall prosecutions and weaken the legitimacy of transitional justice during conflict.
Challenge 3: Fragmented Authority and Multiple Armed Groups
Explanation:
Ongoing conflicts often involve several armed factions and weak central authority, complicating jurisdiction and enforcement.
Case: Colombia — Justice and Peace Law Amid Ongoing Conflict
Background: Colombia’s transitional justice framework was implemented during an active conflict with multiple rebel groups and paramilitaries.
Challenges: Fragmented armed groups hindered disarmament and accountability. Some factions refused participation, continuing violence.
Legal provisions: The Justice and Peace Law provided conditional amnesty for demobilized combatants but excluded ongoing active groups.
Judicial outcomes: Courts grappled with enforcing accountability while balancing peace negotiations, often postponing trials for active commanders.
Effect: The coexistence of armed conflict and transitional justice led to partial justice and some impunity.
Lesson: Fragmentation and competing powers dilute transitional justice effectiveness during conflict.
Challenge 4: Victim and Witness Protection Difficulties
Explanation:
Protecting victims and witnesses is critical but challenging amid ongoing violence and weak state structures.
Case: Northern Uganda — The Lord’s Resistance Army (LRA) Conflict and ICC Cases
Context: ICC indicted LRA leaders while conflict and displacement continued.
Challenges: Witnesses faced threats from LRA and local actors; logistical difficulties in relocation and secure testimony.
Court rulings: ICC utilized closed sessions, voice and image distortion, and witness protection programs, but threats persisted.
Result: Some witnesses recanted or withdrew due to fear, weakening cases.
Lesson: Effective witness protection is difficult in active conflict zones, impacting prosecution outcomes.
Challenge 5: Institutional Capacity and Rule of Law Weakness
Explanation:
Conflict damages judicial infrastructure, depletes skilled personnel, and undermines rule of law, making transitional justice implementation difficult.
Case: Afghanistan — Challenges in Establishing Transitional Justice
Situation: Ongoing insurgency and fragile institutions complicated judicial reform and victim justice post-Taliban regime.
Challenges: Courts struggled with backlog, corruption, and security threats; victims had limited access to justice.
Legal initiatives: International aid aimed to build capacity, but lack of stable governance and ongoing violence hindered progress.
Judicial experience: Cases of war crimes and abuses faced delays or dismissal due to institutional weakness.
Lesson: Without strong institutions and rule of law, transitional justice efforts falter during active conflicts.
Challenge 6: Risk of Exacerbating Conflict and Political Backlash
Explanation:
Transitional justice can sometimes trigger political backlash or violence if perceived as biased or punitive.
Case: Libya — Post-Gaddafi Transitional Justice Efforts
Context: After 2011, Libya attempted prosecutions for Gaddafi-era abuses amid ongoing factional violence.
Challenges: Transitional justice initiatives deepened divides between factions; competing authorities undermined legitimacy.
Legal outcomes: Trials faced disruption, and some groups retaliated violently, fearing persecution.
Result: Justice efforts were limited and intermittent, with continued instability.
Lesson: Without political consensus and security, transitional justice may worsen tensions during ongoing conflict.
III. Summary Table of Challenges and Case Examples
| Challenge | Case Example | Key Issue |
|---|---|---|
| Security and Access | ICC v. Bosco Ntaganda (DRC) | Witness protection and evidence collection hindered by ongoing fighting. |
| Political Resistance | ICC v. Omar al-Bashir (Sudan) | Government non-cooperation stalls prosecutions amid ongoing conflict. |
| Fragmented Authority | Colombia Justice and Peace Law | Multiple armed groups weaken enforcement and accountability. |
| Victim/Witness Protection | ICC v. LRA Leaders (Uganda) | Threats to witnesses undermine trial effectiveness. |
| Institutional Weakness | Afghanistan Transitional Justice | Weak courts and insecurity delay justice delivery. |
| Risk of Conflict Exacerbation | Libya Post-Gaddafi Trials | Transitional justice fuels factional violence and political backlash. |
IV. Conclusion
Transitional justice during ongoing conflict faces formidable challenges: insecurity, political obstacles, fragmented authority, protection failures, institutional frailty, and risks of inflaming conflict. Despite these, some efforts persist, relying on international support, innovative legal frameworks, and adaptive mechanisms.
The cases demonstrate that success requires balancing justice and peace imperatives, prioritizing victim safety, ensuring political buy-in, and strengthening institutions. Transitional justice may be partial or delayed but remains a crucial part of conflict resolution and post-conflict recovery.
RELATED Blog
0 comments