Pursuing Justice in Ongoing Conflict: A Discussion of Current Practice

This study seeks to explore current practices in the pursuit of justice within a situation of active hostilities prior to a peace agreement, drawing on recent experiences in Afghanistan, Colombia, the DRC, Sierra Leone and Liberia, Sudan, Uganda, and the former Yugoslavia. In dealing specifically with the complex questions that arise from the exercise of criminal justice during conflict, the paper seeks to identify factors which govern the decisions of prosecutors, in particular regarding the question of the timing of indictments. The paper also lists the potential considerations of various constituencies on the question of delivering justice in the context of ongoing conflict, such as the interests of victims, governments, the Security Council and other UN actors, regional organisations, humanitarian organisations, traditional leaders, and mediators. Finally, the paper highlights the challenge of conducting an investigation in a situation of ongoing conflict and elaborates on steps that can be undertaken to preserve justice options for the future. Throughout the paper, reference is made to the experience of the International Criminal Court which, at the moment, only has active investigations operating in contexts of ongoing conflict, therefore placing it at the heart of this question.