This research project (led by Dr Elizabeth Stubbins Bates) is at the intersection of international human rights law and international humanitarian law, where the two co-apply in international or non-international armed conflict. Its premise is the relative lack of monitoring and enforcement mechanisms for international humanitarian law, where domestic prosecutions or litigation under international human rights law might fill the gap. Its research questions consider how and to what extent states are willing to investigate violations of international law in armed conflict, and how accurately international legal concepts are understood by governments and domestic courts. Further, it asks if states might prefer to emphasise policies to prevent future violations of international law in armed conflict (including reforms to military training in international humanitarian law) while neglecting their investigatory obligations.
The first publication for this project focuses on the United Kingdom's investigations into alleged torture and inhuman or degrading treatment in Iraq. This article finds that the Ministry of Defence (MOD) closed many hundreds of these investigations on the assertion that the allegations of ill-treatment were 'less serious' or at a 'lower' or 'middle' range of severity. These terms usually appeared without reference to international law, and are once defined with reference to the English criminal law of assault, so that investigations were closed if the alleged treatment resulted in less than grievous bodily harm. This approach is conceptually underinclusive, and fails to grasp substantive and procedural obligations under international human rights law and international humanitarian law. This article has been cited in the Joint Alterrnative Civil Society Report to the UN Committee against Torture on the UK's 6th periodic report, and was briefly quoted in the Concluding Observations of the Committee in May 2019. It was also cited in NGO communications to the International Criminal Court Office of the Prosecutor in relation to the latter's preliminary examination of possible war crimes committed by the UK in Iraq.
Further work (in progress and under review at this writing) examines novel meanings of proportionality in the MOD's investigations, which appears to erode the absolute nature of investigatory obligations under Articles 2 and 3 of the European Convention on Human Rights; and the UK's emphasis on its now-comprehensive reforms to military training in the international law applicable to armed conflict, when those reforms have been cited as a reason not to continue comprehensive inquiries into UK compliance with international law in the armed conflict in Iraq. The latter findings were part of a presentation at a conference in January 2019, to mark the first anniversary of the judgment in Alseran v. MOD.
Future work will consider the procedural, preventive norms in international humanitarian law in greater depth, and with comparative data on state practice.