Provisional Justice: Bridging the Gap in Protracted Conflicts

The Accountability Gap and Structural Violence

In protracted conflicts, a dangerous "accountability gap" emerges. This gap is fueled by two main factors:

1. The Weaponization of Time: Belligerents may use the ongoing nature of a conflict to frustrate accountability, knowing that formal justice mechanisms are often delayed until hostilities cease.
2. Collateral Damage vs. War Crimes: IHL provides a "floor" of protection, but it does not always provide a path for redress if civilian harm is deemed "proportionate" to a military objective. This leaves a vacuum where civilians suffer massive harm that does not technically meet the threshold of a "war crime," yet remains devastating.

Furthermore, these legal frameworks often struggle to address structural violence—the deep-seated inequalities, historic discrimination, and systemic harms that drive conflict in the first place. While transitional justice can address some of these, it is often criticized for being too narrow, focusing on specific legal violations while ignoring the broader social realities of the victims.

The Concept of Provisional Justice

To bridge this gap, scholars propose the concept of provisional justice. Provisional justice suggests that efforts to redress violations should occur during the conflict, rather than waiting for its conclusion.

This approach is not about creating new laws, but about using existing tools in a more responsive, "provisional" way to mitigate harm and correct belligerent behavior in real-time. It involves three key pillars:

1. Prevention and Mitigation

This involves engaging with both State and non-State actors to internalize IHL into their codes of conduct. An example of mitigation is the use of "condolence payments" or ex gratia compensation by military forces to acknowledge civilian harm. However, there is a risk that such payments could create a "pay to violate" culture if they are used to bypass legal accountability.

2. Truth-Seeking and Documentation

Using technologies like Open-Source Intelligence (OSINT) and AI, investigators can document atrocities as they happen. This provides a "justice from below" that can support future criminal trials and reparation claims.

3. Victim-Centered Redress

Provisional justice shifts the focus from the "object of protection" (the civilian in IHL) to the "agent of rights" (the victim in transitional justice).

Summary of the Framework

The relationship between these fields can be summarized by the tension between the immediate needs of humanity and the formal requirements of law.

$\text{Total Justice} \approx \text{IHL (Prevention/Conduct)} + \text{Provisional Justice (Mitigation/Truth)} + \text{Transitional Justice (Redress/Non-repetition)}$

Key Concept Check:

• IHL: Focuses on the rules of war (preventing grave breaches).
• Transitional Justice: Focuses on rebuilding society (post-conflict).
• Provisional Justice: Focuses on bridging the gap (addressing harm during ongoing conflict).

Ultimately, the goal of provisional justice is to ensure that the "bullets of war" do not continue to travel through time, causing intergenerational harm long after the fighting has supposedly stopped. By integrating humanity and justice into the heart of IHL, the international community can move toward a more effective way of protecting those caught in the crossfire.