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 article for this project, published in 2019 by the International and Comparative Law Quarterly, 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 on the same dataset examines the MOD's closure of investigations on grounds of 'proportionality'; a term which is prima facie inapplicable to the positive investigatory obligations in Articles 2 and 3 of the European Convention on Human Rights.

A second article, on the British Army's Training in International Humanitarian Law, has been published by the Journal of Conflict and Security Law. This combines archival research with documentary analysis of training materials obtained by Freedom of Information request. The article finds that historically, implementation of the IHL training obligation was delayed; and that absent or perfunctory training correlated with patterns of torture and ill-treatment in British military detention from the 1950s to the 2000s. From 2012-2017, however, there were comprehensive reforms to the British Army's IHL training, following the Report of the Baha Mousa Public Inquiry, into the death of an Iraqi civilian in British military custody. Current training comprehensively implements the 71 recommendations of the Baha Mousa Public Inquiry which the MOD accepted. Yet there is no norm-by-norm evaluation of soldiers' and officers' understanding of the training materials; some IHL and IHRL prohibitions are under-emphasised or absent; and training reforms have been cited (without justification) as one reason to close pending investigations into alleged violations of international law in Iraq. 

 

Publications

  • E Stubbins Bates, 'Distorted Terminology: The UK’s Closure of Investigations into Alleged Torture and Inhuman Treatment in Iraq' (2019) 68 International and Comparative Law Quarterly 719
    DOI: 10.1017/S002058931900023X
    The UK Ministry of Defence (MOD) has closed hundreds of investigations into alleged ill-treatment of detainees by British troops in Iraq. This Article probes one reason given for the closure of these investigations: the assertion (without further evidence) that the allegations were ‘less serious’, ‘lower-level’ or in the ‘middle’ range of severity. These terms usually appear 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. The MOD’s terminology is wrongheaded and conceptually underinclusive: it fails to grasp the threshold of inhuman or degrading treatment in international human rights law (IHRL), and largely neglects the investigatory obligations in IHRL, international humanitarian law (IHL) and international criminal law (ICL).
  • E Stubbins Bates, 'The British Army's Training in International Humanitarian Law' (2020) Journal of Conflict and Security Law
    DOI: https://doi.org/10.1093/jcsl/kraa006
    States must disseminate international humanitarian law (IHL) and integrate it into military instruction. Implementation of the IHL training obligation was delayed in the UK; when the government asserted that IHL was inapplicable to colonial warfare, resisted the development of the IHL of non-international armed conflict, and was keen to maintain the nuclear deterrent. Absent or perfunctory IHL training correlated with recurrent violations of the prohibitions of torture and inhuman treatment, from the 1950s to the 2000s. Despite official assertions that the British Army’s training in IHL was being reformed following the death of Baha Mousa in British military custody in 2003, there were gradual changes from 2004 to 2011, and more thorough improvements from 2012 to 2017. Training materials for soldiers and officers now offer breadth and detail on IHL, with elements of international human rights law. They implement the 71 recommendations in the Baha Mousa Public Inquiry Report which the Ministry of Defence accepted, and are supplemented by practical training. Yet these are reactive reforms, which still lack norm-by-norm evaluation of soldiers’ understanding. Prohibitions on humiliating or degrading treatment of a sexual nature, and on the intentional infliction of severe mental pain and suffering are (respectively) under-emphasised and absent. References to the necessity of restraint positions (as opposed to the prohibited stress positions) may cause confusion. There is a simplistic suggestion that reprisals are lawful if they are politically authorised. Training reforms have been cited as one reason to close criminal investigations into alleged war crimes: a response which neglects coexistent investigatory obligations.